2)
That the proposed defendant is a peregrinus;

3)
That the proposed defendant is within the area of jurisdiction of
the Court or that property in which the proposed defendant has a
beneficial interest is within that area.

i

As
for the first requirement, the correct approach when deciding
whether a prima facie cause of action has been shown is set out in
the following passage in the judgment of Steyn J. in Bradbury
Gretorex Co. Ltd. v Standard Trading Co. Ltd. 1953
(3) S.A. 529 (W) at 533 D, a passage cited with approval by this
Court in J.
Da Silvd Augusto v Sociedade Angolana De Commercio International
Limitada (Salcilda) (High
Court Case A 285/96) (Unreported) -

"The
authorities and considerations to which I have referred seem to
justify the conclusion that the requirement of a prima facie cause
of action, in relation to an attachment to found jurisdiction, is
satisfied where there is evidence which, if accepted, will show a
cause of action. The mere fact that such evidence is contradicted
would not disentitle the applicant to the remedy. Even where the
probabilities are against him, the requirement would still be
satisfied. It is only where it is quite clear that he has no action,
or cannot succeed, that an attachment should be refused or
discharged on the ground here in question".

|

With
this passage in mind I now turn to the allegations made in the
applicant's founding affidavit. It is alleged, and this allegation
is, of course, central to the whole application, that the applicant
is the owner of MFV Ofelia. This allegation is disputed by the
respondents in their answering affidavit where it is alleged that
certain papers or documents found on board the vessel and certain
other evidence indicates that the vessel is not owned by the
applicant but by a subsidiary. In its replying affidavit the
applicant joins issue on this question and asserts once again that
it is the owner and certain documents are annexed in support of this
assertion. I do not propose to set out details of the allegations
and counter-allegations. Suffice it to say that although there is
confusion in the evidence as to the ownership of MFV Ofelia, and
this much is conceded by Mr Frank, who appeared for the applicant,
it certainly cannot be said that it is quite clear that it is not
the owner; and, following the approach laid down in the Bradbury
Gretorex case
(supra) the issue of ownership must, for the purposes of the present
application, be resolved in favour of the applicant.

It
is further alleged that the respondents, and there are forty four of
them, unlawfully seized MFV Ofelia and thereafter refused to allow
the applicant to place a repair crew and a replacement crew on the
vessel. It is further alleged that the respondents damaged the
vessel. It is alleged that as a result of the foregoing the
applicant has a claim or claims against the respondents in excess of
US$140,000-00.

The
way the applicant puts its claim based on the respondents' alleged
refusal to allow the applicant to place a repair crew and a
replacement crew on board is as follows. Subsequent to the
repatriation of the bulk of the crew the applicant arranged for nine
replacement crew members to go on board and initiate repairs.
However, the respondents denied the replacement crew access and
therefore prevented the applicant

from
having its vessel repaired and brought up to a state of
seaworthiness. Then, in September, 1997, the respondents similarly
prevented a repair crew of seven engineers who arrived from Bulgaria
from boarding the vessel. The cost of transporting, accommodating
and remunerating both crews is alleged to be US$83,805-53. The cost
of making the vessel seaworthy is estimated as US$20,000-00.

i

In
addition to the foregoing, the applicant alleges that the
respondents removed property valued at U$50,000 from the vessel and
that they have also caused damage which will cost in excess of
US$20,000 to repair.

The
applicant seeks to overcome the difficulty presented by the fact
that only six of the respondents remained on board after 12th
August, 1997 (according to the respondents, 31st July, 1997) by
alleging that the respondents acted in concert and with a common
purpose to compel the applicant to pay their wages and that they are
jointly and severally liable for the damage caused to the applicant.
The applicant relies on a letter from the respondents' attorneys
dated 28th October, 1997 in which it is stated, inter
alia:

"1.
Our clients shall remain on board of the "OFELIA"
until such time as their claims have been settled alternatively the
vessel has been sold.

2.
Our clients demand payment of at least US$21,000,00 in part
payment of the crew claims and which amount is calculated based on
the 6 crew

members
(on board of the vessel) salaries up to 7th April 1997.

3.
The balance of our clients' claim needs to be paid alternatively
payment is to be guaranteed by way of a bank guarantee within 21
(twenty one) days from the date hereof."

The
applicant also relies on a letter dated 25th August, 1997 in which
the respondents'
attorneys state, inter
alia - . *

"1.
Our clients shall remain in possession and on board the MFV "Ofelia"
until all crew claims have been paid in full."

I
will return later in this judgment to the question whether it can
properly be inferred that the respondents acted in concert and with
a common purpose.

One
matter raised in the answering affidavit is whether the applicant
was entitled to put a replacement crew and a repair crew on board
the vessel at all in view of the fact that at all material times the
vessel was under arrest at the instance of the respondents or other
creditors. I will deal with this matter briefly. If the South
African Admiralty Proceedings Rules applied in this country there
might be some substance in the point. Rule 19(1) provides that any
property arrested shall be kept in the custody of the sheriff or his
deputy -

"who
may take all such steps as the Court may order or as appear to him
to be appropriate for the custody and preservation of the property
..."

And
in The
MV Avalon: Cumow Shipping Ltd v
Brooks
N O and Another 1996
(4) S.A. 989 (D) Thirion J., after having considered various
authorities, concluded -

"It
would appear to me from what has been said on the subject of arrest
that it is the duty of the sheriff, after he has arrested a vessel,
to keep it in safe custody and to take all reasonable steps
necessary for the preservation of the vessel so as to prevent a
deterioration in its condition".

If
such is the duty of the sheriff or his deputy then it is arguable
that the owner's rights to maintain the vessel are ousted.

However,
the Admiralty Proceedings Rules of South Africa do not apply in
Namibia. The Rules for the Vice-Admiralty Courts in Her Majesty's
Possessions Abroad, 1883, strange as it may seem, still apply and
those Rules contain no provision similar to that contained in Rule
19(1). Indeed, the Rules are silent on the matter in question. They
do, however, make provision in Rule 207 for cases not provided for
in the Rules. Rule 207 provides:

"In
all cases not provided for by these Rules the practice of the
Admiralty Division of the High Court of Justice of England shall be
followed."

Turning,
therefore, to that part of Halsbury's
Laws of England (4th
ed.) Vol 1 (1) which is headed "Practice of the High Court"
one finds at para. 378 the following -

"By
the mere arrest of a ship the marshal gains custody and not
possession; subject to his control of the custody all possessory
rights which previously existed continue to exist, including all the
remedies which are based on possession."

It
must follow, in my view, that the applicant was entitled to put a
replacement crew and a repair crew on board its vessel and prima
facie it has an action against the respondents if, as alleged, they
prevented it from doing so and if as a result the applicant suffered
the alleged loss.

With
regard to the claim for items allegedly removed by the respondents
from the vessel the position of the applicant is rather different.
All the deponent to the founding affidavit can state is -

"I
can however state that as far as Applicant knows, at least the
following items have been removed ..."

There
then follows a list of items. Can this bald assertion, vague as it
is, be classified as evidence? In my view not. I do not consider
that the requirement of a prima facie cause of action has been made
out in the case of the goods allegedly removed.

I
now return to the question whether the applicant has shown that it
has a prima facie cause of action against all the respondents. Mr
Frank was constrained to concede that as a matter of complete
impracticality the judgment, the rights to which have been attached,
cannot be divided. It was one judgment granted in favour of all the
respondents. The applicant must therefore show a prima facie cause
of action against each and every respondent if the rule is to be
confirmed. And it is in this regard that the applicant faces
considerable difficulty. It can be inferred from the facts deposed
to in the founding affidavit that the six respondents who remained
aboard when the rest were repatriated may have been deputed to
remain aboard so as to ensure that the vessel would not
surrepticiously slip anchor in the event of a replacement crew being
put abroad; but that is not enough. Can it also be properly inferred
that the crew which left authorised or deputed that which remained
to go further and prevent the applicant's replacement crew and
repair crew from having any access at all? Indeed, was it even in
their contemplation that the applicant would seek to put a new crew
on board prior to their judgment being satisfied? As Lord Wright
observed in Caswell
v Powell Duffryn Associated Collieries Ltd. 1939
(3) All E.R. 722 at p. 733:

"Inference
must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective facts from
which to infer the other facts which it is sought to establish ...
But if there are no positive proved facts from which the inference
can be made, the method of inference fails and what is left is mere
speculation or conjecture."

In
my view, there are no positive facts averred in the founding
affidavit from which the inference can be made that those
respondents who were repatriated acted in concert with those
respondents who remained and with a common purpose when the
remaining respondents acted to prevent the replacement crew and the
repair crew from boarding

MFV
Ofelia. It follows from this, coupled with Mr Frank's concession,
that the rule must be discharged.

In
an alternative submission Mr Frank submitted that the attachment
should

i

nonetheless
be permitted to stand as a form of security to prevent the
respondents from disposing of the fruits of their judgment or
removing them from the jurisdiction thus leaving the applicant with
an empty judgment should it ultimately succeed in its action. The
short answer to this submission has just been given. The applicant
has not made out a prima facie cause of action against the bulk of
the respondents. Why, in these circumstances, should they, the bulk,
be deprived of the fruits of the judgment which they have obtained
against the applicant pending determination of an action to be
instituted by the applicant when the applicant has not been able
even to show a prima facie cause of action on its own papers? The
answer, in my opinion, is that they should not.

Mr
Heathcote, for the respondents, made certain other submissions as to
why the rule nisi
should
be discharged and I will deal with these, albeit briefly. The rule
nisi and attachment order was issued on 28th November, 1997 and a
copy of the order was served on the respondents' attorneys on 1st
December. There was then some delay while those attorneys took
instructions from their clients and by letter dated 16th January,
1998 the respondents' attorneys informed those acting for the
applicant that the respondents consented to the jurisdiction of this
Court. That letter was delivered on 20th January. Mr Heathcote
submitted that by virtue of this consent the respondents are
entitled to have the rule and attachment order discharged. He relied
in particular on the judgment in Utah
International Inc v
Honeth
and Others 1987
(4) S.A. 145 (W).

■

In
the Utah
case
the Court, at the instance of the respondents, had granted ex
parte an
order for the attachment ad
confirmandam jurisdictionem of
certain assets of the applicant, a peregrinus
of
the Court. The applicant became aware of the order on the same day
as it had been granted and immediately consented to the jurisdiction
of the Court. On the following day writs of attachments were issued
and certain attachments were made. The applicant successfully
applied to have the writs of attachment set aside. The Court set the
writs of attachment aside on the basis that the consent to
jurisdiction had been given within a reasonable time after the order
for attachment had been communicated to the peregrinus,
that
an attachment was no longer required in order to secure jurisdiction
and that the respondents should not be permitted to execute an order
to achieve an object which had nothing to do with jurisdiction.

This
decision is in contrast to a long line of authority in the South
African courts to the effect that consent to jurisdiction by a
peregrinus
after
an order of attachment has been executed is too late. It may be that
the fact that it was common cause that the writs of attachments were
in any event invalid influenced the decision. However, whether that
be the case or not I am satisfied that the high-water mark was
properly set by Goldstone J. in Elscint
(Pty) Ltd and Another v Mobile Medical Scanners (Pty) Ltd 1986
(4) S.A. 552 (W) when he said at p. 557 E -

"Where
an attachment has taken place, there is no basis for denying the
incola

(plaintiff)
any benefit conferred thereby merely because the peregrinus,
ex post facto and
unilaterally submits to the jurisdiction of the Court."

In
my view, this dictum
is
equally applicable to an attachment at the instance of a peregrinus
plaintiff.
I respectfully agree with Farlam AJ when he said in Blue
Continent Products (Pty) Ltd v
Foraya
Banki PF 1993
(4) S.A. 563 at p. 574 D that there is no basis -

"....for
departing from the clear line of authority to which I have referred
and which established that an incola
plaintiff
is entitled to have a peregrine
defendant
or his property arrested for two purposes: (1) to found or confirm
jurisdiction; and (2) to secure the debt, to some extent at least.
Once an incola
plaintiff
has achieved both purposes and obtained, inter
alia, the
benefit of security, in part at least, for his claim, it would not
be appropriate to deprive him thereof merely because the other
purpose, viz of founding or confirming jurisdiction, can now be
achieved in another way by means of the defendant's submission.
There is another reason for coming to this conclusion. If a
defendant only submits to the court's jurisdiction once his goods
have been attached, there is a danger that a judgment thereafter
given against him may not be recognised internationally because he
may be able to contend in some other forum that his submission was
not voluntary because it only took place after the arrest: ref
Voinet
v
Barrett
(1885)
55 L.J. Q B 39 CA at 41 and Guiard
v
De
Clermont [1914]
3 KB 145."

Farlam
AJ refers in this passage to an incola
plaintiff
but I can see no reason in principle why the learned judge's
observations should not also apply to a peregrinus
plaintiff.
Accordingly, I am of the view that Mr Heathcote's submission based
on ex
post facto and
unilateral submission to the jurisdiction of the Court must fail.

Another
submission made by Mr Heathcote concerns the situs
of
the right which was attached. The attachment was of the respondents'
right, title and interest in and to the judgment amount and costs
order. It was, therefore, an attachment of an incorporeal right. To
use the words of Hoexter J.A. in Nahrungsmittel
Gmbtt v
Otto
1993
(1) SA 639 (A) at p. 647 F:

"One
is concerned here with intangible property rights which can have no
physical locality".

And
as was pointed out by Foxcroft J in The
MV Snow Delta: Discount Tonnage Ltd
v Serva Ship Ltd 1997
(2) S.A. 719 (CPD) at p. 722 F: j

"A
right can obviously have no physical locality. A right is attached
to a person who exercises that right. A right cannot exist in some
place separately from the person who exercises that right."

Returning
to the judgment of Hoexter J.A. in the Nahrungsmittel
case,
the learned judge cited the following passage from the judgment of
Innes C.J. in Randfontein
Estates Gold Mining Co Ltd v Custodian of Enemy Property 1923
AD 576 -

'There
is no need however to consider the application to them of the
doctrine mobilia
personam sequuntur, nor
to discuss the statement of Grotius
that
actiones
personales are
governed by the law of the debtor's domicile. Because the point to
be determined is not what system of law governs the disposition or
devolution of such rights, but where
they are legally situated. Now
the only attribute of locality which they possess must relate to the
locality where
the debtor resides. It
is there that performance is due, and it is there that the debtor
must be sued if performance is to be exacted. It is only there that
such incorporeal property can be regarded as localised.'

That,
in my view, covers the situation in the present case. And, as
Hoexter JA pointed out, the case of Longman
Distillers Ltd v
Drop
Inn Group of Liquor Supermarkets (Pty) Ltd 1990
(2) S.A. 906 (A), a case not dissimilar to the present one, provides
a precise illustration of the principle being considered. Drop Inn
was an incola
of
the area of jurisdiction of the Cape Provincial Division. Longman
was a peregrinus.
Longman
had an order for costs against Drop Inn. Drop Inn had a claim
against Longman and attached Longman's right, title and interest in
and to the order for costs. That it was entitled to do because Drop
Inn, the debtor, was an incola of the Court and the situs
of
the incorporeal which was attached was Cape Town. In the instant
case the situs of the incorporeal which was attached was London
where the applicant is registered, certainly not Namibia. It follows
that Mr Heathcote's submission must succeed.

One
further submission made by Mr Heathcote was that the facts did not
justify the application being brought on an ex parte
basis
and that the application was deliberately brought without notice in
order to avoid the possibility of the respondents consenting to
jurisdiction. In my opinion, there is also merit in this submission.
While I agree with Mr Frank that applications for attachment are
normally brought ex
parte that
is because normally there is a need for such applications to be
brought ex
parte. There
was, however, no need for the present application to have been
brought ex
parte. The
respondents' attorneys had asked the applicant's attorneys to give
notice to them of any application or action which might be brought
and it is reasonable to assume that had notice been given the
attorneys would have agreed to accept service of any application.
The property sought to be attached was an incorporeal right and
there was no question of that right being removed from the
jurisdiction, assuming that it existed within the jurisdiction, and
there was no threat of the respondents disposing of their interest
in or right to the judgment and costs order. It seems clear to me
that the application was brought ex
parte as
part of a carefully planned stratagem. Step one was to obtain the
interim attachment order. Step two was to satisfy the judgment debt
by paying monies which would automatically become frozen. And step
three was to set aside the sale of the MFV Ofelia. Had this
stratagem been disclosed to the Court it may well be that the Court
would not have made the ex
parte order.

There
remains to be considered the question of costs. Both counsel were
agreed that costs should follow the event save with regard to the
costs of 22nd January, 1997 which costs were reserved. 22nd January
was the day on which the respondents anticipated the return day
having served and filed their answering affidavit the previous day
but the hearing was postponed on the application of the applicant to
enable it to file a replying affidavit and because its counsel
indicated that he had had insufficient time properly to prepare. The
respondents were, of course, entitled to anticipate on twenty four
hours notice because of the procedure adopted by the applicant, a
procedure which I have found was wrongly adopted. In these
circumstances I see no reason why the applicant should not pay the
wasted costs of 22nd January.

For
the foregoing reason the rule nisi and the interim attachment order
are discharged and the applicant is ordered to pay the costs of the
application including the costs of 22nd January, 1998.