(aa)
notice of the attachment has been given in writing by the
deputy-sheriff to all interested parties and where the asset
consists of incorporeal immovable property or an incorporeal right
in immovable property, notice shall also have been given to the
registrar of deeds in whose deeds registry the property or right is
registered; and

(bb)
the deputy sheriff shall have taken possession of the writing or
document evidencing the ownership of such property or right, or
shall have certified that he or she has been unable, despite
diligent search, to obtain possession of the writing or document;

(ii)
the deputy-sheriff may upon exhibiting the original of the warrant
of execution to the person having possession of property in which
incorporeal rights exist, enter upon the premises where such
property is and make an inventory and valuation of the right
attached."

Mr
Heathcote conceded that he would not make an issue about the service
on an unauthorised attorney because the respondents were before the
Court and filed answering affidavits, but persisted with the issue
relating to the attachment of the moneys. The Rule
Nisi and
the Final order were meant to seek attachment of a right, title and
interest pursuant to a judgment. In the premises, the fact that it
was not attached prior to the Rule Nisi or at the confirmation of
the Rule
Nisi makes
no difference. The attachment could have been affected if the Rule
Nisi was
confirmed. The respondents have in any event not been prejudiced
because they anticipated the return date and filed opposing papers.
Therefore the non-compliance with Rule 45(8)(c) can be condoned and
is hereby condoned.

The
respondents' third ground of attack states that the appellant should
obtain leave to appeal in respect of ground 6
which
reads "the application should not have been brought on an ex
parte basis"
and ground 7 which reads "the application was a carefully
planned strategem and had the strategem been disclosed, the Court
may well not have granted the order". Mr Heathcote submitted
that as the appellant did not obtain the Court a
quo's leave
to appeal against the discharge of the order on the basis that it
used the wrong proceedings while not disclosing the carefully
planned stratagem, or did not obtain the leave of the court a
quo to
appeal against the order as to costs in respect of the proceedings
of 22 January 1998, and therefore this Court cannot decide the issue
and the appeal can thus not succeed.

Although
Heathcote did not take the point that leave had to be obtained to
appeal against the dismissal of the application to confirm
jurisdiction he argued that appellant cannot appeal against the
reasons for that dismissal because some of those reasons involve
discretionary aspects. That surely cannot be the test. Whether one
gets leave to appeal can not depend on one's grounds or reasons of
appeal, but on the order or decision one is appealing against. In
order to avoid dealing with the matter piecemeal one looks at the
effect of the order and the nature of the relief sought. One looks
at the substantive nature of the order or judgment appealed against
whether or not it is applicable, irrespective of the reasons or
grounds advanced against it.

Cf.
Heyman
v Jockshire Insurance Co Ltd 1964
(1) SA 487 (A); Holland
v
Deysel
1970
(1) SA 90(A) and Herbstein
and van Winsen: Civil Practive of the Supreme Courts in SA 4^,h
ed pp 848 - 850.

Respondents'
ground that one's appeal should depend on one's grounds is untenable
and is dismissed.

The
fourth ground raised by the respondents relates to the interim order
which could not be confirmed because the High Court does not have
jurisdiction to adjudicate upon the dispute of ownership in the main
action. The High Court of Namibia exercising its jurisdiction as a
Municipal Court and the High Court of Namibia exercising its
jurisdiction as a Court of Admiralty are separate and distinctive
courts. In order to substantiate this point Mr Heathcote cited The
Law of Shipping and Carriage in S.A. 3rd
Bamford at p. 179 and Peca
Enterprises v Registrar of Supreme Court, Natal 1977(1)
SA 76.

In
the Peca Enterprise case supra the Court grappled with an apparent
jurisdictional situation. It seemed that there was conflicting and
concurrent jurisdiction where the Supreme Court of South Africa
exercised its normal Roman Dutch jurisdiction and in tandem with
that the Court there was the Admiralty Court which had an extended
jurisdiction which might have been in conflict with the Roman Dutch
law. Prior to the Admiralty Jurisdiction Act of 1983 there existed
this anomalous situation where the

Supreme
Court said in its capacity as such with concurrent jurisdiction with
the Colonial Court of Admiralty dependant upon the choice of forum
by the dominus
litis. This
anomaly was removed by Section 7 of this new Act in South Africa but
not in Namibia which means the old provisions applicable prior to
1983 are still in force in Namibia. Piros
v Rose 1990
(1) SA 420 (N) at 424A-C and LA
WSA vol
25, par 113 and 142 note 2. Therefore this Court has jurisdiction in
terms of the Common Law to determine the ownership as the vessel and
the crew were within the Court's jurisdiction and the Court can deal
with the matter on the normal delictual principles and determine the
delict and deal with the issue of ownership. Thus this point has no
merit and must also fail.

This
next legal point raised by the respondents' counsel was that in
terms of the common law read with the Labour Act 6 of 1992 wages
cannot be attached ad
confirmandam jurisdictionem and
for this reason the ride
nisi could
have been discharged. This point was totally ill-conceived and
thrown into the array of the rest to serve as ballast. We have a
foreign vessel with a Bulgarian crew whose contract of employment
stipulates that their conditions of employment shall be determined
and interpreted according to Bulgarian Law. Clause 18 of the
contract of employment provides as follows:

"18
Interpretation
of the Contract.

The
Employee declares that he has read and understood the present
Contract and that he signs this contract in accordance with his free
will. Any interpretation of this Contract should be made in
accordance with Bulgarian Law."

And
clause 19 provides

"19.
Disputes/
Jurisdiction

Any
disputes arising from this Contract that can not be solved amicably
between the Employer and the Employee shall be referred only and
exclusively to the jurisdiction of the Bulgarian Court and Bulgarian
Law should apply. The Employee is not entitled to seek the
intervention of any foreign Authorities, Organisations or Trade
Unions for the implementation of the present Contract."

The
Namibian Labour Act (No. 6 of 1992) does not have extra-territorial
jurisdiction. Sub-Section 2(1) thereof specifically states that its
provisions only apply to persons in Namiba by employers and
employees in Namibia. It reads as follows -

"2(1)
Subject to the. provisions of Sub-Section (2) and (3) this Act shall
apply in relation to every employer, including the State, and every
employee in Namibia."

Moreover,
the applicant is not seeking to attach wages, but the attachment of
a right, title and interest to a judgment. Therefore, the Merchant
Shipping Act (No.57 of 1951, section 135) relied upon by Heathcote
does not avail him at all. This section refers and is applicable to
"a seaman or apprentice-officer of a Namibia ship." The
section reads as follows:

"The
following provisions shall apply to wages
and salvage due or to become due to a seaman or apprentice-officer
of a Namibian ship." (Emphasis provided).

This
is not the case in
casu. The
Bourgwells is a foreign vessel and not a "Namibian ship."

Similarly,
section 172 of the Act relied upon by Mr Heathcote does not avail
the respondents. The section stipulates that

"Airy
person who receives or takes into his possession or under his
control any money or other property of a seaman or
apprentice-officer who belongs or has recently belonged to any ship
wherever registered shall return the same or pay the value thereof
when required by the seaman or apprentice-officer subject to such
deductions as may be justly due to him forthwith the seaman or
apprentice-officer in respect of board or lodging."

Clearly
this section provides for instances of self-help where the employee
takes into his possession or control money or property belonging to
a seaman or apprentice and does not relate to instances pursuant to
a Court order. A seaman or apprentice-officer can surely not be in a
different position than any other citizen before a court of law. In
any event the section deals with a voluntary relinquishment of such
goods by the seaman or an apprentice officer and a
subsequent refusal by the employer to refuse same.
Therefore, the Labour Act and the Merchant Shipping Act are not
applicable in the instant case because wages are not being attached
or sought to be attached, but a right to a judgment. In the premises
this point must also fail and is therefore dismissed.

I
shall now proceed to deal with the merits of the appeal. As
mentioned hereinabove the appeal is against the discharge of the
Rule
Nisi. To
decide whether or not the discharge was justified the following
matters must be addressed pursuant to the amended notice of appeal
read in conjunction with the judgment of the Court a
quo":

15. 
    Did
    the appellant establish a prima
    facie case?
    In considering this aspect the following aspects are also of
    relevance namely whether or not the crew that remained on board the
    vessel acted in concert and with the common purpose with those who
    had already left the vessel and whether or not the appellant
    established the fact that it suffered the damages alleged in this
    regard.

    
    

16. 
    Did
    the situs
    of
    the right which appellant sought to attach, fall within the
    jurisdiction of the Court a
    quo and
    could it be attached?

    
    

17. 
    Was
    the appellant entitled to launch the application on an ex
    parte basis
    and would the Court a
    quo have
    been entitled to refuse the relief sought on the basis of its
    disapproval of the appellant's stratagem.

    
    

I
shall now proceed to deal with these matters seriatim.
But
before I do so, it is necessary to mention that the Court a
quo made
several factual findings which are not assailed in the appeal and
which facts must therefore be regarded as having been established
prima
facie by
the appellant and these are:

(i) that
the ownership of the vessel vests in the appellant;

(ii) that
flowing from such ownership and notwithstanding the fact that
the
vessel was kept under arrest at the behest of various
creditors of the
appellant the latter still retains all
possessory rights including all
remedies which are based on such
possession;

(iii) that
by necessary implication the appellant was entitled to put
a
replacement crew as well as a repair crew on board its vessel;

(iv) that
the respondent's refusal to allow appellant access to the vessel
was
unlawful; and

(v) that
the appellant as a result of such unlawful action by the
respondents
suffered damages.

Incidentally,
there occurred an error in the calculation of the damages suffered
by the appellant. The correct computation of the damages suffered by
the appellant should in fact add up to USS91014-13 and not
USS103805-53 as stated by the Court a
quo. The
total damages suffered is given as US$141 014-13 and if the amount
of US$50 000 of the property removed from the vessel is deducted one
safely arrives at US$91,014-13.

A.
A PRIMA
FACIE CASE

Several
facts were accepted to have been established prima
facie by
the Court a
quo and
there is no cross appeal in this regard, therefore it can be
accepted as correctly so found, namely that:

i) The
appellant is the owner of the vessel;

ii) the
respondents unlawfully refused to allow a replacement crew and
a
repair crew on board the vessel while it was under arrest;

iii) the
appellant suffered damages as a result of the
abovementioned
unlawful conduct to the tune of US$83 805-53; and

iv) in
respect of the alleged unworthiness of the vessel appellant's claim
is
for at least an amount of US$20,000-00.

However,
the Court a
quo held
that in respect of appellant's claim that it suffered damages due to
its property being removed from the vessel to the tune of US$50,000
that appellant did not establish this claim prima
facie. The
relevant part of appellant's case regarding this aspect is stated as
follows in the founding affidavit:

"As
applicant was and is denied access to the vessel, it is impossible
to state exactly what items were removed from the vessel by the
respondent. I can however state that as far as applicant knows, at
least the following items have been removed which items are
reflected on annexure "DA7" as being valued at
approximately US$50,000-00."

The
test to be applied in deciding whether or not a prima
facie cause
of action, in relation to an attachment to found jurisdiction is
satisfied is

"...
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."
Bradburry
Gretorex Company Limited v
Standard
Trading Company (Pty) Ltd 1953(3)
SA 529 (W) at 533D.

This
means that even if evidence relied upon by the applicant is
disputed, or where there are factual conflicts between the parties,
same does not warrant the setting aside of the arrest. It must be
borne in mind that in these applications which are preliminary in
nature the matter of primary concern is the attachment and not the
cause of action. It therefore also follows that only when the action
is groundless or frivolous will the Court be inclined not to grant
it. Compare: Great
River Shipping Inc. v Sunnyface Marine Ltd 94(1)SA
64( C) at 75(H).

It
is clear that the appellant asserts that there are more things
missing which it could not establish due to not having access to the
boat but that it could positively establish that the goods mentioned
had gone missing and estimated the value thereof as US$50,000-00.
The appellant could do no more as it had no access to the vessel and
could thus not state where, when and by whom the goods had been
removed. It is common cause that the respondents or at least some of
them had possession of the vessel and refused appellant access to
the vessel and it is thus for them to explain what happened to the
goods and it could not have been expected from the appellant in the
present proceedings to have stated more than it has stated.
Moreover, it is not disputed that the alleged goods were there and
that these were damaged or removed.

The
next question to be decided is whether the appellant made out a
prima
facie case
that all the respondents were liable to it in respect of the damages
set out above as joint wrongdoers or whether it had to pinpoint the
individual culprits involved. To hold all the respondents liable the
appellant had to establish prima
facie that
the respondents acted in concert and with a common purpose when the
damages were caused.

In
this regard the Court a
quo held
that the appellant did not establish the inference that it sought
and that appellant's submissions were based on conjecture or
speculation and not based on objective facts.

"...
prima facie evidence
means evidence capable of being supplemented by inferences drawn
from the opposing party's failure to reply. Whether such inferences
may legitimately be drawn depends upon the nature of the case and
the evidence which has been adduced. Most important, it depends upon
'the relative ability of the parties to contribute evidence on that
issue.' If the evidence adduced by one party can reasonably support
an inference in his favour, and it lies exclusively within the power
of the other party to show what the true facts were, his failure to
do so may entitle the court to infer that the truth would not have
supported his case."

Hoffmann
and Zeffert: South African Law of Evidence,
3^rd
edition, p 468
- 469.

This
is apparently also the case in English law where Cross
on Evidence
deals with it under the subheading "Absence
of an explanation and failure to give evidence or call a witness"
and
states

"failure
to give evidence is specifically mentioned because its effect has
been a subject of a good deal of judicial observation in both civil
and criminal proceedings."

Cross
on Evidence,
6^th
edition, p29.

In
conjunction with the aforegoing and in consideration of the possible
inferences that can be drawn from the papers of the appellant in
establishing a prima
facie case
regard should be had to what is stated by Denning, LJ in Smithwick
v The National Coal Board.f
1950) 2 KB 335 at 351 - 352 where the following distinction was
drawn between inference and conjecture:

"As
Lord MacMillen said in Jones v Great Western Railway Co (1931)
144 It
194
at
p.202:
the
dividing line between conjecture and inference is very often a very
difficult one to draw but it is just the same as the line between
some evidence and no evidence. One often gets cases where the facts
proved in evidence - the primary facts -are such that the tribunal
of fact can legitimately draw from them an inference one way or the
other, or, equally legitimately, can refuse to draw any inference at
all. But that does not mean that when it does draw an inference it
is making a guess. It is only making a guess if it draws an
inference which cannot be legitimately be drawn: that is to say, if
it is an inference which no reasonable person could draw."

"The
court, however, recognise that a litigant will be handicapped when
facts are within the exclusive knowledge of his opponent and that
they hold, when that is so, that less evidence will suffice to
establish a prima
facie case.

South
African Law of Evidence,
supra p398. Gericke
v Sack
1978 (1) SA 821 (A) at 827.

In
so far as inferences in general are concerned, the position is
succinctly set out in the Ocean
Accident and Guarantee Corp Limited
case as follows:

in
finding facts or making inferences in a civil case, it seems to me
that one may, as Wigmore conveys in his work on Evidence, 3^rd
ed.,
para
32, by
balancing probabilities select a conclusion which seems to be the
more natural, or plausible, conclusion from amongst several
conceivable ones, even though that conclusion be not the only
reasonable one'.

I
need hardly add that 'plausible' is not here used in its bad sense
of 'specious', but in the connotation which is conveyed by words
such as acceptable, credible, suitable. (Oxford Dictionary, and
Webster's International Dictionary)."

Ocean
Accident Guarantee Corp Limited v
Koch
1963 (4) SA 147 (A) at 159 C-D.

The
Ocean
Accident
case, supra
deals
with the position at the end of a case and after consideration of
all the evidence. Where one deals with a prima
facie case,
as at present, the test is less stringent:

"Mr
Hofmeyr also relied on the statement on Cochran
v Miller
1965 (1) S 162 (D) at 163C that in an application for arrest to
found jurisdiction the test for a prima
facie case
is whether there is evidence which, if believed, might persuade a
reasonable man to draw the inference that the wrong complained of
had been committed. That seems to me, with respect, to be the same
as a prima facie case in the absolution context in a trial. In that
context, to put it slightly differently from the statement in
Cochran's case, a prima
facie case
is established by circumstance where the inference the plaintiff
seeks to have drawn is as 'more or less equally open' on all the
available evidence as the inference favouring the defendant."

Great
River Shipping Inc v Sunnvface Marine Ltd
case supra
at
75 I - 76B.

Thus
in proceedings such as the present where a diversity of facts
justify different inferences to be drawn, some of which could
establish the appellant's case, the court should not pause to
consider the value and persuasiveness of each and every inference
that can be drawn but should only confine its attention to the fact
or question whether one of the possible inferences to be drawn is in
favour of the plaintiff in order to determine whether a prima
facie case
has been established or not.

Marine
and Trade Insurance Co Ltd v Van der Schyf
1972(1) SA 26 (a) at 38 G-H.

Ruto
Flour Mills (Ptv) Ltd v Adelson
1958 (4) SA 307 (T) at 310D.

If
the abovementioned principles are taken congisance of, then it is
clear that the appellant made out a prima
facie case
that the respondents acted in concert and with common purpose in
respect of all the damages, alternatively, at least in respect of
the damages accepted by the Court a
quo.

It
is clear that the respondents acted in concert and after
consultation with each other and with their lawyer in the occupation
of the vessel and its respectfully submitted that one can infer as
the only probable inference that they were all party to the damages
caused to the vessels even if they did not all partake therein.
There is nothing to suggest that anyone of them ever disassociated
himself from the damages caused to the applicant. In this regard it
should be noted that none of the respondents made an affidavit to
disassociate themselves with the behaviour of the remaining crew and
there is the general denial by Stephan M. Minchev in the answering
affidavit on behalf of the respondents, and who however, admits that
the remaining crewmen "acted
in the best interest of all the respondents". This
lack of response by any individual crew member to disassociate
himself from actual damages caused, is a factor that must enter into
play when considering whether the inference contended by appellant
has been established.

To
support the only inference that all respondents are liable on the
ground that they were acting in common cause and had done so all
along to enforce their perceived rights flows from the following
facts:

(i) The
remaining respondents prevented the repair and replacement
crew
in an effort to enforce all the respondent's claims;

(ii) the
monies already paid were distributed pro
rata amongst
all
members;

(iii) the
legal practitioner specifically stated that the respondents acted
as
they did to safeguard the interests of all respondents;

(iv) they
used the same deponent they authorise to depose on their
behalf
and share a common stance in the legal proceedings; and

(v) it
is admitted on affidavit that the remaining respondents acted in
the
best interest of all the respondents.

Had
some of the respondents disassociated themselves from certain
actions one would have expected affidavits from them or at least a
letter indicating this. If they all deny involvement and the damages
are established the only inference is that they acted with a common
purpose and in concert.

In
this regard it must be borne in mind that all the respondents laid
siege to the vessel before most of them left the country. In a
letter from their legal representatives dated 27^th
of June 1997 in which it is expressly stated that the said legal
representative acted for all the crew members, the complaint is that
the appellant was trying to compel the respondents to leave for
Bulgaria. The following then appears:

"Clients
have instructed us that they are not prepared to leave the MFV
Ofelia until such time as the amount has been paid in full. In
addition, your clients must pay the crew salaries up to the date of
repatriation only after the necessary arrangements have been made
with ourselves and our clients in good faith failing which our
clients will stay put."

In
an attempt to have the crew repatriated to Bulgaria, their country
of origin, 36 flight tickets together with an amount of US34 800.00
was tendered and paid into the trust account Messrs. Erasmus and
Associates, the legal practitioners acting on behalf of the
respondents during June 1997. Notwithstanding this payment and the
tendering of airline tickets all respondents persisted in their
attitude not to vacate the vessel or to allow the appellant access
thereto. The bulk of the crew only left the vessel at the end of
July, beginning August 1997.

On
25 August 1997, the same legal representative once again, writing on
behalf of all the crew members, reiterates that

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

and
also further stated:

"Our
clients only have the MFV Ofelia to ensure payment of their claims."

and
further stated:

"Although
the vessel is in need of maintenance, it is not of such importance
that it cannot wait until the matter of our client's claim had been
resolved."

It
is quite clear also from the abovementioned quotations that the crew
that remained on board, did so to enforce the claim of all the crew
members and it is clear that is why the other members left as they
were sure that their claim would be safeguarded by the remaining
crew members.

If
one must decide whether it is more likely than not, that the
respondents acted in concert and in common cause at least in respect
of the damages relating to the refusal to allow a replacement crew
and the repair crew onto the vessel the court must elect the
plausible inference and if this inference favours the appellant, the
appellant is entitled to the relief claimed. The most plausible
inference in the present matter is that the respondents acted in
concert and with a common purpose.

Marine
and Trade Insurance
case, supra.
Ruto
Flower Mills (Pty) Ltd
case, supra.

Great
River Shipping Inc v Sunnvface Marine Ltd
1994 (4) SA 64 (C) at 76A-B."

In
the circumstances the facts set out hereinabove do indeed constitute
prima
facie proof.

B.
THE SITUS
OF
THE RIGHT

The
court a
quo held
that the situs
or
the incorporeal right which appellant sought to attach was not
situated in Namibia and the court did not have jurisdiction to grant
the order sought. In this regard the court relied, inter
alia, on
the case of The
MV Snow Delta: Discount Tonnage Limited v Serva Ship Limited
1997 (2) SA 719 C. The Snow
Delta-case
was taken on appeal and the Full Bench reversed the decision. The
court a
quo in
the Snow
Delta-case
held that the right, being an incorporeal right was attached to the
person who could exercise such right and this being so, the situs
of
such right was the place where such person was resident. The
question of the locality in law of the property in question and
whether such property can be found within the jurisdictional borders
of the court must be decided according to the principles of the
Roman Dutch Law.

The
Shipping Corporation of India Ltd v Evdomon Corporation and Another
1994
(1) SA 550 (A) at 559 (E), 562 C -1.

The
Full Bench with reference to Pollak
on Jurisdiction
accepts that as a general rule the statement by Foxcroft J is indeed
correct namely that:

"In
attributing in
situs to
incorporeal property, the general principle adopted by the law is
that an incorporeal is situated where it can be dealt with
effectively."

Judgment
of the Full Bench
p 26-27.

Following
from this principle of effectiveness, it is clear that in normal
situations this would mean that the debtor must be followed or as is
stated

"Where
the debtor is, and where fulfillment can be demanded and exacted
instanter."

"such
claims are governed by the laws of the place of residence of the
debtor ... where there are due and proper judgment can be obtained
upon them."

And
where the debtor resides and must be sued."

Judgment
of the Full Bench
p29-31,

The
fact that the normal rule is that an incorporeal right follows the
person entitled to exercise that right does not mean that that is
the only place where such a right can be enforced.

"It
does not seem to me to follow from this, however, that the right
concerned can exist only at the place where the debtor is, or where
he resides, or where he is domiciled, or where he is an incola:
if
the right can be enforced as effectively at some other place, it may
equally be deemed to exist there."

Full
Bench decision
p 33.

In
the Snow
Delta
case the Full Bench then confirmed a rule to found jurisdiction and
authorised the Sheriff to "attach
all the respondents right to or interest in the use and enjoyment of
the MV Snow Delta", despite
the fact that the situs
of
the right in so far as it followed the person entitled to exercise
it, was not within the jurisdiction of the Cape Court. In my
opinion, The Full

Bench
decision sets out the position correctly and is also the practical
way of dealing with the matter.

It
would amount to an extremely "ivory tower" and academic
approach if the court were to decline to exercise jurisdiction when
it can do so effectively because of the rigorous enforcement of
sterile legal formalisms.

A.
EX
PARTE APPLICATION

The
Court a
quo accepted
that applications for attachment are normally brought on an ex
parte basis
but found that

"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
p_art_e
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."

That
applications for attachments are normally made on an ex
parte basis
has been the settled practice of the courts. Pollack on Jurisdiction
2^nd
ed. at p85;

Anderson
& Coltman Ltd v Universal Trading Company
48(1) SA 1277 (W) at pl284; Bradburv
Gretorex Company Ltd v Standard Trading Company (Ptv) Ltd
53(3) SA 529 (W) at 531 and

Utach
International Inc v Honeth & Others
87(4) SA 145 (W) at 146 E.

An
applicant may employ ex
parte procedure
when no relief of a final nature is sought against an interested
party. The existence of a particular practice such as the one in
question renders it unnecessary or improper to require that due
notice be given to the other party in accordance with the provision
of rule 6(5) of the Rules, especially when the relief sought by such
an application only constitutes a preliminary step in the
proceedings, which proceedings like in
casu contemplate
the bringing of a legal suit within a stipulated time after the
confirmation of the Rule.

Herbstein
and Van Winsen: The Civil Practice of the Supreme Court of South
Africa
4^th
ed.
p.232.

Even
where the object of the attachment or the embodiment thereof is held
by an incola
on
behalf of the respondent no notice to either the incola
or
the peregrini
respondent
need to be given in applications of this nature.

Tallacchi
NO v Volkskas Bpk
1971 (1) SA 289 (T) at 290 C-E

It
can therefore not be left to a litigant to prescribe the procedure
especially not to the respondents in this matter as seems to be
suggested by the court a
quo. Either
the rule is that applications are brought ex
parte or
the rule is that they are not brought ex
parte. The
reason why these kinds of applications are brought ex
parte is
because a court will not have jurisdiction over a respondent or will
not exercise jurisdiction over a respondent until his property has
been attached. It thus follows that the court will not even hear
such a respondent on the return date unless property had been
attached in the event of such respondent indeed being a peregrinus.
(Here it must be borne in mind that it is only in recent times that
there developed a marked difference between the principles relating
to an attachment to found jurisdiction and an attachment to confirm
jurisdiction).

The
court a
quo however
assumes that the reason for this rule is that the property that
sought to be attached may be removed from the court's jurisdiction.
Even if this is accepted and that is the reason why the rule
developed that these applications be brought ex
parte then
it surely was not for the appellant to allege that such property
would disappear if notice is given but this is assumed as this is
the normal rule.

In
any event, for the court a
quo to
have stated that the bulk of the crewmen who had already left the
country and who, on their own admissions, are impecunious seamen,
would not have taken their money and transferred it to Bulgaria is
totally untenable.

"An
application to found or confirm jurisdiction is not in the nature of
discretionary relief and if an appellant is entitled to such relief
if he can establish the requisites entitling him thereto.

"In
our law, once an incola
applicant
(plaintiff) establishes that prima
facie he
has a good cause of
action
against the peregrine respondent (defendant), the Court must, if
other requirements are satisfied, grant an order for attachment ad
fnndandam
of
the property of the peregrine
respondent
(defendant). It has no discretion ... the Court will not enquire
into the merits or whether the Court is a convenient forum in which
to bring the action ... Nor, it is conceived, will the Court inquire
whether it is 'fair' in the circumstances for an attachment to be
granted." Longman
Distillers Ltd v Drop Inn Group
1990
(2)
SA 906
(N) at
914
E
- F.

The
same applies where the applicant is a pereginus.
Thus
in the Sowrv-case
Clayden, J had stated the following where the applicant was
aperegrinus:

"If
there was a discretion to refuse attachment I should do so. But
there is not."

Sowry
v Sowry
1953 (4) SA 629 (W) at 632H - 633A. Herbstein
and Van Winsen.
supra at 102.

The
way in which an applicant elects to bring his application or the
considerations of strategic importance to him in relation to other
disputes, is thus of no consequence and there is no basis on which
the court a
quo or
any other court could have refused the application because of any
so-called "stratagem" of the applicant because the court
does not approve of it unless it is a clear abuse of the court
process which it can only be if the applicant was in any event not
entitled to seek an order for attachment. Which is not the case in
casu because
all the relevant facts were placed before the court a
quo namely
that

(i) The
Court a
quo was
informed that the vessel was under arrest and that
amongst the
creditors who arrested the vessels, were the respondents;

(ii) the
respondents obtained default judgment against the
appellant
subsequent to the arrest; and

(iii) the
vessel was about to be sold in execution by the Deputy Sheriff on
the
3^rd
of December 1997.

It
does not matter whether the vessel would be sold at a public auction
or whether appellant satisfied the Writ because whichever happened,
the respondents' right, title and interest would have been attached.
That the appellant's action was to pay the amount mentioned in the
Writ and so to preserve it's interest in the vessel instead of it
being sold at a bargain basement price at a public auction is not
worthy of censorious comment. Even if it is correct that the court
granting the Rule
Nisi would
have been entitled to express displeasure at the stratagem employed
by the appellant, it (does not follow that)
it would have expressed its displeasure in some other way, e.g. by
mulcting the applicant with costs. This is especially so where the
court was not dealing with a discretionary remedy such as a
temporary interdict.

Paizes
v Phitides
1940 WLD 189.

Trakman
N.O. v Livshitz & Others
1995
(1)
SA 282
(A).

In
the
circumstances and
having
regard to
the
fact
that the
appellant did
not seek
final relief against the respondents, that the lodging
of the
application constituted a
preliminary
step towards other proceedings contemplated and that it has become
settled practice to bang applications for attachment on an ex
parte
basis
there exist no reason why the Rule
Nisi
given
in this particular matter should have been discharged because the
appellant followed such a procedure.

In
the result the appeal is upheld with costs including the costs of
two counsel and the Rule
Nisi issued
on the 28"' of November 1997 is confirmed."

ON
BEHALF OF THE APELLANT ADV.
T J FRANK SC and

ADV.
JAN STRYDOM
Instructed by: P
F Koep & Co.

ON
BEHALF OF THE RESPONDENT R
HEATHCOTE

Instructed
by: Fisher,
Quamby & Pfeifer