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METLIKA TRADING LTD AND OTHERS v COMMISSIONER, SOUTH AFRICAN REVENUE SERVICE 2005 (3) SA 1 (SCA)
2005 (3) SA p1
2005 (3) SA 1 (SCA) 427/03 and 438/03 Supreme Court of Appeal Streicher JA, Cameron JA, Conradie JA, Patel AJA and Ponnan AJA September 6, 2004 October 1, 2004 G J Marcus SC and M du P van der Nest SC (with L N Harris) for the first and second appellants. D N Unterhalter SC (with N J Graves and D Mooki) for the third and fourth appellants. J J Gauntlett SC and J L van der Merwe SC (with H G A Snyman) for the respondent. Link to Case Annotations
Flynote : Sleutelwoorde
Appeal - In what cases - Against order granting interim interdict - Reiterated that order appealable if final in effect - Appeal against interim interdict by High Court compelling appellant to procure return of aircraft to South Africa pending finalisation of action by C respondent - Whether interdict appealable Steps to be taken to secure return of aircraft intended to have immediate effect and not to be reconsidered at trial on same facts by Court - Interim interdict in effect final order - Granting of interim interdict by High Court confirmed on appeal to Supreme Court of Appeal. D Jurisdiction - Of High Court - To grant interdict (mandatory or prohibitory) against incola respondent where act in question to be performed outside of Court's territorial jurisdiction - This depending on whether Court able to enforce compliance - Since respondent incola, Court having required jurisdiction to grant interdict, no matter if act in question to be performed or E restrained outside its jurisdiction Granting of interim interdict ordering incola respondent to procure return of aircraft to South Africa confirmed on appeal to Supreme Court of Appeal.
Headnote : Kopnota A Provincial Division of the High Court had granted an interim order in terms of which the third appellant was ordered to take all F necessary steps to procure the return of an aircraft to South Africa. It had been granted pending finalisation of an action launched by the respondent against the appellants and other parties. The aircraft was registered to the third appellant partnership, of which the second appellant was a partner. The operation of the aircraft to and from South Africa was managed by the G
2005 (3) SA p2
second appellant. The appellants appealed the granting of the order, contending, inter alia, A that the Court a quo lacked jurisdiction to grant an interdict in respect of an act which was to be performed outside of its jurisdiction. The respondent challenged the appealability of the order. Held, that it was settled law that an interim order was appealable only if it were final in effect and were not susceptible of alteration by the court of first instance. (Paragraph  at 11D E.) B Held, further, that since the High Court had intended the interim order to have immediate
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further.) E Held. no matter that the act in question was to be performed or restrained outside the Court's area of jurisdiction. effect. (Paragraph  at 19I. (Paragraph  at 12H. and since that Court would not reconsider its order at the pending trial on the same facts.METLIKA TRADING LTD AND OTHERS v COMMISSIONER. Cases Considered Annotations F Reported cases African Wanderers Football Club (Pty) Ltd v Wanderers Football Club1977 (2) SA 38 (A): distinguished Ashtiani and Another v Kashi  2 All ER 970 (CA): referred to Babanaft International Co SA v Bassatne and Another  1 All ER 433 (CA): dictum at 444b .) The decision in the Transvaal Provincial Division in Commissioner for the South African Revenue Service v Metlika Trading Ltd and Others confirmed.) Held. that if the respondent were an incola.d.asp?NXTScript=nxt/gateway. further. it had in effect been an appealable final order. http://ipproducts. that if the Court were unable to enforce compliance. and the order was thus sufficiently effective to have conferred jurisdiction on the Court a quo to grant the order. It was therefore necessary to determine whether the Court a quo was able to enforce compliance with the order.F applied I Lenders & Co Ltd v Lourenco Marques Wharf Co Ltd 1904 TH 176: not followed Makoti v Brodie and Others1988 (2) SA 569 (B): not followed Minister of Agriculture v Grobler 1918 TPD 483: not followed Parents' Committee of Namibia and Others v Nujoma and Others1990 (1) SA 873 (SWA): not followed J 2005 (3) SA p3 Phillips and Others v National Director of Public Prosecutions2003 (6) SA 447 (SCA): referred to A Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd1948 (1) SA 839 (A): dictum at 870 applied South African Motor Industry Employers' Association v South African Bank of Athens Ltd1980 (3) SA 91 (A): dictum at 96H applied South Atlantic Islands Development Corporation Ltd v Buchan1971 (1) SA 234 (C): not followed B Steytler NO v Fitzgerald 1911 AD 295: dictum at 346 applied Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd1969 (2) SA 295 (A): dictum 2 of 15 2012/03/29 03:55 PM .J applied Hugo v Wessels1987 (3) SA 837 (A): dictum at 855J .g applied Ewing McDonald & Co Ltd v M & M Products Co1991 (1) SA 252 (A): dictum at 259D .. it would C not have had jurisdiction to grant it.) D Held. SOU.. that it was clearly within the power of the second and third appellants to procure the return of the aircraft to South Africa.. 359H and 372C . accordingly. The order could be enforced by contempt of Court proceedings against the second appellant's directors. (Paragraph  at 19D.jutalaw. (Paragraph  at 20B/C. (Paragraph  at 15H.856A applied Knox D'Arcy Ltd and Others v Jamieson and Others1996 (4) SA 348 (A): dicta at 357C. the Court had jurisdiction to grant an interdict (whether mandatory or prohibitory) in personam.co.d applied G Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd1996 (3) SA 686 (A): distinguished Derby & Co Ltd and Others v Weldon and Others (No 2)  1 All ER 1002 (CA): dictum at 1007f .. that the appeal had to be dismissed.za/nxt/print.g applied Derby & Co Ltd and Others v Weldon and Others (No 6)  3 All ER 263 (CA): dicta at 272a and H 273d .) Held. as to whether the Court a quo had jurisdiction to order that steps be taken to procure the return of the aircraft. further.
SOU.d. Case Information Appeal from a decision in the Transvaal Provincial Division (Hartzenberg J). as Amicus Curiae)2003 (2) SA 363 (CC) F Barclays National Bank Ltd v Thompson1985 (3) SA 778 (A) at 796 . Matiso and Others v Commanding Officer. at 307 applied Zweni v Minister of Law and Order1993 (1) SA 523 (A): dictum at 532I .METLIKA TRADING LTD AND OTHERS v COMMISSIONER.za/nxt/print.7 Camel v Dhlamini 1903 TH 17 Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd1995 (4) SA 790 (A) Cape Times Ltd v Union Trades Directories (Pty) Ltd and Others1956 (1) SA 105 (N) G Chevron Engineering (Pty) Ltd v Nkambule2003 (5) SA 206 (SCA) CM Asbestos Co (Pty) Ltd v King Chrysotyle Asbestos Mines (Pty) Ltd and Others1953 (3) SA 431 (W) Coetzee v Government of the RSA1995 (4) SA 631 (CC) H Coetzee v Government of the RSA. counsel for the parties referred to the following: E Administrator..J applied. G J Marcus SC and M du P van der Nest SC (with L N Harris) for the first and second appellants.co..asp?NXTScript=nxt/gateway. http://ipproducts.. In addition to the authorities referred to in the judgment of the Court. The facts appear from the judgment of Streicher JA. J J Gauntlett SC and J L van der Merwe SC (with H G A Snyman) for the respondent. D C D N Unterhalter SC (with N J Graves and D Mooki) for the third and fourth appellants. Cape v Ntshwaqela1990 (1) SA 705 (A) Avtjoglou v First National Bank of Southern Africa Ltd2004 (2) SA 453 (SCA) at paras  and  Bannatyne v Bannatyne (Commissioner for Gender Equality. Port Elizabeth Prison1995 (4) SA 631 (CC) Collins v Minister of the Interior and Another1957 (1) SA 552 (A) Commissioner of Taxes Federation of Rhodesia v MacFarland1965 (1) SA 470 (W) Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530 Daniels v Campbell NO and Others2004 (5) SA 331 (CC) De Lange v Smuts NO1998 (3) SA 785 (CC) Derby & Co Ltd and Others v Weldon and Others (No 1)  1 All ER 469 (CA) Ex parte Goldstein 1916 CPD 483 J I 2005 (3) SA p4 Ex parte Speaker of the National Assembly: In re: Dispute Concerning the Constitutionality of Certain Provisions of A the National Educational Policy Bill 83 of 19951996 (3) SA 289 (CC) Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council1999 (1) SA 374 (CC) Frankel Max Pollak v Menell1996 (3) SA 355 (A) B Greathead v SACCAWU2001 (3) SA 464 (SCA) Green v Green1987 (3) SA 131 (SE) Hassim v Commissioner for the South African Revenue Service2003 (2) SA 246 (SCA) at 250 in para  Hermes Versekeringsmaatskappy v Dartnell1980 (4) SA 279 (W) Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors 3 of 15 2012/03/29 03:55 PM .jutalaw..
co. Eastern Cape2004 (2) SA 611 (SCA) Jones v Krok1995 (1) SA 677 (A) D Lawless v Lane 1909 TS 589 Littauer v Littauer1973 (4) SA 290 (W) Marsay v Dilley1992 (3) SA 944 (A) Middelvlei Black Reef Gold Prospecting and Developing Syndicate Ltd v Truter 1897 (4) Official Reports (ZAR) Minister of Safety and Security and Another v Hamilton2001 (3) SA 50 (SCA) E Minister of the Interior v Harris1952 (4) SA 769 (A) Moch v Nedtravel (Pty) Ltd1996 (3) SA 1 (A) MT Argun v Master and Crew of the MT Argun 2004 (1) SA 1 (SCA) at 11 MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd2000 (4) SA 746 (SCA) F Oblowitz v Oblowitz 1953 (4) SA 426 (C) Parker v Rand Motor Transport Co 1930 AD 252 Payen Components SA Ltd v Bovic CC and Others1995 (4) SA 441 (A) Phillip Morris Inc and Another v Marlboro Shirt Co SA Ltd and Another1991 (2) SA 720 (A) G President of the Republic of South Africa v South African Rugby Football Union2000 (1) SA 1 (CC) Priestly v Clegg1985 (3) SA 955 (T) R v De Jager 1903 TS 36 H Randfontein Estates v The Master 1909 TS 978 at 982 Republic of Haiti and Others v Duvalier and Others  1 All ER 456 (CA) Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 S v Basson2005 (1) SA 171 (CC) S v Ntuli1996 (1) SA 1207 (CC) I S v Rens1996 (1) SA 1218 (CC) S v Zuma and Others1995 (2) SA 642 (CC) Shepstone & Wylie v Geyser NO1998 (3) SA 1036 (SCA) Standard Bank of South Africa Ltd v Ocean Commodity Inc1980 (2) SA 175 (T) J 2005 (3) SA p5 Stauffer Chemicals Chemical Products Division of Chesebrough-Ponds (Pty) Ltd v Monsanto Company 1988 (1) SA 805 A (T) Thermo Radiant Oven Sales Ltd v Nelspruit Bakeries1969 (2) SA 295 (A) at 309 . http://ipproducts.za/nxt/print.METLIKA TRADING LTD AND OTHERS v COMMISSIONER. (Pty) Ltd and Others: C In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others2001 (1) SA 545 (CC) Jayiya v MEC for Welfare.asp?NXTScript=nxt/gateway.10 Van der Sandt v Van der Sandt1947 (1) SA 259 (T) Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation)1987 (4) SA 883 (A) at 886 Venter v Venter1970 (1) SA 11 (T) Ward v Burgess1976 (3) SA 104 (Tk) Zweni v Minister of Law and Order1993 (1) SA 523 (A) at 536B De Wet and Van Wyk Kontraktereg en Handelsreg 5th ed at 17 C B Dicey and Morris The Conflict of Laws 11th ed (2000) vol 2 at 917 Forsyth Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of 4 of 15 2012/03/29 03:55 PM ..d...jutalaw.. SOU.
d.za/nxt/print. respectively. The loan was to be repaid in instalments. ad fundandam jurisdictionem.asp?NXTScript=nxt/gateway.. Postea (October 1). The Court a quo also confirmed the attachment of certain assets of the fourth appellant ad confirmandam jurisdictionem. SOU. Cur adv vult. the deponent to the first and second appellants' answering affidavit. whereafter King exited the company.. At that time.8 D Hutchison et al Wille on Principles of South African Law 8th ed (1991) at 305 Joubert (ed) The Law of South Africa vol 11 North and Fawcett Cheshire and North's Private International Law 11th ed (1987) at 254 Oppenheim International Law vol 1 at 286 . describes himself as the South African representative of the first and second appellants. RMB). He once told C an interviewer that he loved to create new businesses and then exit therefrom. whether the Court a quo had jurisdiction to order the third appellant to B take steps to procure the return of the aircraft to South Africa and whether the authorised attachments could confirm or found jurisdiction in the Court a quo. at a profit in excess of R1 billion. At the time. One such asset was the aircraft.METLIKA TRADING LTD AND OTHERS v COMMISSIONER. the Supreme Court 4th ed at 183 Gane (tr) The Selective Voet: Being the Commentary on the Pandects (1955) vol 2 Herbstein and Van Winsen The Civil Practice of the Supreme Court of South Africa 4th ed (1997) at 797 . at the instance of the respondent. a company incorporated in the British Virgin Islands. alternatively. was the registered shareholder of approximately D 70% of the shares in Specialised Outsourcing. The main issues arising for determination are whether the orders are appealable.3. RMB advanced R171 110 000 to the partnership to purchase the aircraft. It sold virtually all of these shares over a two-year period.  David King.1 the fourth appellant appeals against the attachment 2005 (3) SA p6 G F E STREICHER JA order and the third and fourth appellants appeal against some of the additional orders as well. One such new business created by King was a company by the name of Specialised Outsourcing Ltd. Ben Nevis Holdings Ltd (Ben Nevis). Judgment Streicher JA:  The Transvaal Provincial Division (the Court a quo).co. Ben Nevis deposited approximately R171 million with RMB as security for the loan. The order was stated to be an H interim order pending the finalisation of an action by the respondent against some of the appellants and other parties. Hawker Management (Pty) Ltd (Manco) and the second appellant. http://ipproducts. Manco and HAS were wholly owned subsidiaries of FirstRand Bank and Ben F Nevis. In terms of a loan agreement.. The appellants appeal against the order that the third appellant should take steps to I procure the return of the aircraft to South Africa. it sold the aircraft to E a partnership in which the partners were Rand Merchant Bank (a division of FirstRand Bank. During September 2000. Hawker Air Services (Pty) Ltd (HAS). Specialised Outsourcing was listed on the Johannesburg Stock Exchange in October 1997.. In addition. 327 .8 Pistorius Pollak on Jurisdiction 2nd ed (1993) Pollak South African Law of Jurisdiction 2nd ed (1937) at 16 Roberts South African Legal Bibliography (1942) at 376 Zimmermann The Law of Obligations (1990) at 702 .95.  Ben Nevis acquired various assets in South Africa. it granted certain further relief relating to the aircraft. The amount so deposited was to be utilised to repay the partnership loan and the repayments so made G were to constitute advances by Ben Nevis to HAS and from 5 of 15 2012/03/29 03:55 PM .jutalaw. ordered the third appellant to take all the necessary steps to procure the return of a Falcon aircraft to South Africa. It was not contended that the A appeal against the additional interim orders should succeed in the event of the appeal against the order that steps be taken to procure the return of the aircraft being successful.
owned by King or Ben Nevis and for certain specified. HAS to the partnership.co. pledging. Ben Nevis and Metlika from ceding.asp?NXTScript=nxt/gateway. In terms of this order (the preservation order). in terms of s 74C of the Income Tax Act 58 of 1962.  Prior to the institution of the action. 0. This gave rise to an enquiry. in order to protect the interests of the respondent. http://ipproducts. The loan J 2005 (3) SA p7 STREICHER JA agreement provided that certain events would constitute a default which A would entitle RMB to declare its obligations under each of the 'transaction documents' cancelled and to declare all amounts payable under the loan agreement immediately due and payable. with the prior written consent of RMB. respectively. was assessed E to tax in an amount in excess of R900 million. during January 2002. Hartzenberg J. that Ben Nevis was the owner of shares in South African companies.METLIKA TRADING LTD AND OTHERS v COMMISSIONER. However. interdicts aimed at preserving certain assets were granted pending a return day. King.jutalaw. had an interest of 99. or the management of the aircraft by HAS.. granted an H order: '(a) Interdicting King. pending the finalisation of the action. The assets included an interest in the aircraft. which. been delegated to a third party. HAS was appointed as the operations manager in respect of the business of the partnership. Ben Nevis and Metlika were interdicted from. At the enquiry. the respondent decided to institute an action against Metlika. Manco and HAS. selling or ceding the Falcon aircraft or any rights therein to any person. in the case of Ben Nevis.  As a result. in any way whatsoever.  During February 2002. alienating. in terms of an option H agreement. J 2005 (3) SA p8 STREICHER JA  The founding affidavit filed by the respondent in the application for the aforesaid relief made it clear that it was not A considered necessary. subject to amendments. all the South African assets of Ben Nevis had been transferred to the first appellant. in a letter dated 15 January 2001. 1999 and 2000 tax years. in the case of Metlika. no doubt. In addition. the repayment of the loan by RMB to the partnership was guaranteed by Ben Nevis.' I (b) In addition. 6 of 15 2012/03/29 03:55 PM . SOU. it came to light that. income tax assessments were raised against Ben Nevis in respect of the 1998.. the partnership agreement and the operations management agreement. The transaction documents were defined as the financing documents. of the alleged transfer of all the assets of Ben Nevis to Metlika. in his own right. In terms of an operations management agreement..1% in the partnership. The transfer allegedly took place on 16 January 2001. and G ad fundandam jurisdictionem. RMB. B  Ben Nevis had not declared to the respondent its income as a result of the sale of its shares in Specialised Outsourcing.. HAS was granted an option to require Manco and RMB to withdraw from the partnership upon all amounts owing under the loan agreement having been paid by the partnership to RMB in full or all of the obligations of the partnership to RMB under the loan agreement having. like Ben Nevis. in a total amount of R1 467 844 330. in any way whatsoever. In addition.  In terms of the partnership agreement. disposing of their shareholding and loan accounts in HAS and from. Metlika Trading Ltd (Metlika). alternative relief.1% and 0.d.za/nxt/print. disposing or in any way encumbering any of their assets excluding stock-in-trade of businesses which could be sold in the ordinary course of business. It could not have been alleged to have taken place earlier as a firm of auditors had advised the respondent. the respondent obtained an order authorising the attachment of certain assets ad confirmandam jurisdictionem. is a C company registered in the British Virgin Islands. in F fact. I  The partnership agreement provided that the affairs of the partnership would be conducted by a management committee. The interim orders were subsequently confirmed. Interdicting HAS from selling or ceding the aircraft or any rights therein to any person.8%. as a result of enquiries made by an official of the respondent. to interfere with the utilisation of the aircraft by the partnership. Ben Nevis D only advised RMB on 21 February 2002 that all assets held to its order should be transferred to Metlika with effect from 28 February 2001. Ben Nevis and King for an order declaring that various assets previously held in the name of Ben Nevis were.
the fourth appellant (Carmel). The purchase price received from the Bank of Bermuda. at least. This new partnership is the third appellant in this matter. was.co. The respondent thereupon attempted to get RMB to delay the transaction so as to enable him to take the necessary steps to protect his interests but was informed that the transaction with Carmel had been finalised on 5 F September 2002. Carmel. the purchaser. or arising out of or in connection with the transaction documents (as defined in the loan agreement) and as a partner in the partnership'. paid by Metlika. or proposed purchaser.METLIKA TRADING LTD AND OTHERS v COMMISSIONER. they were informed that the change was necessitated by the fact that the Bermuda authorities would not allow the registration of an aircraft in its jurisdiction unless the aircraft were maintained in Bermuda. Referring to an intimation by the respondent's attorney C to the attorney of King. each with a 0. The respondent. It stated that its outstanding exposure to the partnership. a H company incorporated according to the laws of Mauritius. The silent partner was FirstRand.za/nxt/print. being the liability of the partnership F to RMB after the application of RMB's security. E  On 12 August 2002. Carmel agreed to be bound by the terms and conditions of the partnership agreement and HAS consented to the delegation. after exercising its contractual rights to the deposit ceded to it as security. to Carmel'. It follows that a new partnership between HAS and Carmel B came into being (the new partnership) on the same terms and conditions as the partnership between RMB. As this was not 'the purchaser's' intention. Only on 4 September 2002. C  On 16 August 2002. that E it was 'in the process of disposing of its interests in. the identity of the purchaser was subsequently changed to Carmel Trading Company Ltd.. RMB notified the respondent that HAS was the registered owner of the aircraft but B not the beneficial owner thereof. http://ipproducts. were not terminated. with a 99. the respondent enquired from RMB what clauses of the loan agreement had been breached by the partnership and what the amount owing by the partnership to RMB in terms of the loan agreement D was. Unbeknown to the respondent. RMB was in the process of selling its partnership interest for a purchase consideration of R24 550 450.jutalaw. Metlika and Ben Nevis to the effect that the respondent was considering applying for an additional order which would prevent the utilisation of the aircraft.1% interest. FirstRand.8% interest. King replied that it was a convenient way of facilitating the payment to RMB and that arrangements for reimbursement had been or would be made (the person concerned could not recall which) between Metlika and Qwerty..asp?NXTScript=nxt/gateway.d. was Qwerty Aviation Services Ltd (Qwerty). also wanted to know who the present owners of the aircraft were and what rights RMB intended to exercise. obviously has a material interest in the outcome of such application and would expect D .  In a letter dated 27 February 2002. The purchase price was R24 550 A 450. In terms thereof. SOU. According to King's attorneys.  However.. which included the operations management agreement. according to the advice of King to his attorneys. to be cited as a respondent. Manco. HAS and the partnership. not until much later when the situation in regard to the aircraft had changed drastically and FirstRand no longer had an interest in the aircraft. furthermore.'  The respondent chose not to approach the Court for additional relief. did RMB furnish the particulars requested. FirstRand and Manco sold to Carmel the RMB partnership interest. RMB delegated to Carmel all its obligations to HAS and the partnership 'in terms of. .  The agreement of sale was concluded between FirstRand. Asked why the funds to settle the Qwerty liability were coming from G Metlika. Manco and HAS and that the transaction documents. It stated. the Manco J 2005 (3) SA p9 STREICHER JA partnership interest and all the claims of FirstRand against the partnership under the loan agreement. 'the purchaser' decided that the aircraft should be based I in Mauritius. Initially. RMB stated that the beneficial owner of the aircraft was an en commandite partnership in which the disclosed partners were HAS and Manco. as the holder of the majority interest in the partnership. in response to RMB's letter dated 12 August 2002. referring to the option agreement. was R24 550 450.. RMB stated: 'In the event of your client proceeding with an application for an additional order for relief as intimated by you. 7 of 15 2012/03/29 03:55 PM . . and its claims against the partnership. RMB advised the respondent that it had exercised its rights in terms of the various breach clauses in the loan agreement and that it had applied its security to part settle the amount outstanding.
SOU. ad confirmandam C jurisdictionem. or for other purposes. That. The attachment of following assets of the fifth respondent.co.. and nowhere else.4 1. without the prior written consent of SARS.5. which consent will not unreasonably be withheld. The following interim orders made on 11 September 2002 are confirmed.3 above ad confirmandam and ad fundandam E jurisdictionem respectively. if the R192 300 000 loan.d. http://ipproducts.1 to 1..1 1. Carmel was a tool of King and under his control.1 That.jutalaw.3 Its partnership share in the Hawker Aviation Services Partnership (fourth respondent). to bypass the H preservation order. which consent shall not be unreasonably withheld.2 2. which consent B shall not be unreasonably withheld. may only be utilised for bona fide commercial charter flights as intended in the partnership agreement and that Hawker Air Services G (Pty) Ltd (third respondent) and the partnership (fourth respondent) be prohibited from granting consent for it to be used for any other purpose. or the consent of this Honourable Court.3 1.5. The partners to the partnership agreement.  In the mean time. which orders will serve as interim orders pending the finalisation of the applicant's action under case No 20827/02: I 1. only with the prior written consent of the applicant. the purchase price thereof be paid to the H partnership in South Africa. the payment thereof will only be made into a trust account in the Republic of South Africa.5. G  These developments gave rise to the present application.. and that it be kept therein pending the outcome of the applicant's action under case No 20827/02. Carmel Trading Company Ltd. with a suitable prayer to the effect that the fifth respondent's interest I in the aircraft should be declared 2005 (3) SA p11 2. or the consent of this Honourable Court.5. This order will be subject to the applicant launching an application to join the fifth respondent in the action within 30 days after the granting of this order.asp?NXTScript=nxt/gateway.. The seventh respondent 4 is requested to note this order in its registers pertaining to the Falcon 900 ZS-DAV aircraft. or any interest therein. the aircraft had been flown out of South Africa with the intention of not returning it. 1.za/nxt/print.2 1. and deposited into and kept in a trust account unless otherwise authorised by an order of this Honourable Court.2 Hawker Air Services (Pty) Ltd (third respondent)2 is interdicted from granting A consent for the transfer of a partnership interest from the fifth respondent 3 to any person and/or entity without the prior written consent of SARS. Hartzenberg J agreed. On that basis. J 2005 (3) SA p10 STREICHER JA 1. The following orders are made which orders will serve as interim orders pending the finalisation of the applicant's action under case No 20827/02: 2.5. without the prior written consent of SARS. which consent will not be unreasonably refused. he granted the following order: '1. the third and the fifth respondents.3 STREICHER JA executable for the tax debts of Mr King (sixth respondent) and/or Ben Nevis Holdings Ltd (first A respondent). are prohibited from amending the partnership agreement without the prior written consent of SARS.1 The fourth respondent (the partnership) is prohibited from selling the Falcon 900 aircraft.METLIKA TRADING LTD AND OTHERS v COMMISSIONER. ad fundandam jurisdictionem. registration number ZS-DAV. D Its share in the claim by the partnership against this Sandton branch of FirstRand Bank in respect of the credit balance in an amount of approximately R10 797 available in the fourth respondent's banking account.5 1. Authorising and directing the sheriff or his deputy having jurisdiction to attach the assets identified in paras 1. pending the outcome of the action.5. 2. alternatively. or without the consent of this Honourable Court. due by the partnership (fourth respondent) to Ben Nevis Holdings Ltd (first respondent) and/or Metlika Trading Ltd (second F respondent) and/or Hawker Aviation Services (third respondent) becomes due and payable. and that it may only thereafter leave South Africa temporarily for bona fide charter flights. The respondent alleges that it is highly probable that the partnership's default in terms of the loan agreement was a designed act to undermine the preservation order.5 8 of 15 2012/03/29 03:55 PM . is confirmed: 1. or without the consent of this Honourable Court. or the consent of this Honourable Court. Its loan account in Hawker Aviation Services Partnership (fourth respondent) in an amount of approximately R24. in fraudem legis.5 million. which consent may not be unreasonably refused. Enquiries by the respondent revealed that it was in Switzerland. He held that there could not be the slightest doubt that the transaction in terms of which Carmel acquired RMB's interest in the partnership was a contrived transaction. or any part thereof. That the Falcon 900 aircraft.4 2. registration number ZS-DAV.4 That the partnership take all the necessary steps to procure the return of the aircraft to South Africa. B That the fourth respondent be directed to furnish to SARS information regarding their monthly 2. in the event of the sale of the Falcon 900 aircraft. registration number ZS-DAV. account number 62011195204.
Pending an action by the club for a declaratory order that that was not the case..METLIKA TRADING LTD AND OTHERS v COMMISSIONER. C who was employed by Fidelity Guards. there could be no doubt that he intended that the issues raised before him would be finally resolved in an action to be instituted by the club. an interdict to that effect was granted against him. As to the finality of the order. there had to be a rule and that rule was stated by Schreiner JA in Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd1948 (1) SA 839 (A) at 870 to be10 C 'a preparatory or procedural order is a simple interlocutory order and therefore not appealable unless it is such as to ''dispose of any issue or any portion of the issue in the main action or suit'' or.5 The question then arose whether the doctrine of res judicata barred reconsideration of the issues in the action. held that the order granting an interim interdict was not appealable in that it was not final in effect and was susceptible of alteration by the court of first instance.9  As in African Wanderers Football Club Ltd. in African Wanderers Football Club (Pty) Ltd v Wanderers Football Club1977 (2) SA 38 (A) at 690C. coupled with the fact that an application for an interim E interdict is a proceeding separate from the main proceedings pending the determination of which it was granted (see Knox D'Arcy Ltd and Others v Jamieson and Others1996 (4) SA 348 (A) at 359H read with 357C). relying on Zweni v Minister of Law and Order1993 (1) SA 523 (A) at 532I . Pending an action for an order restraining him from being so employed. namely. ie whether it intended to dispose H finally of those issues or any part thereof. on the fact that. D  The present case is distinguishable from African Wanderers Football Club Ltd and Cronshaw. http://ipproducts.. the order is appealable.za/nxt/print. This Court held that it had to examine the issues raised in the interdict proceedings and the manner in which they were dealt with in order to determine whether the Court meant to express a final decision thereon. I think. SOU. which used to manage the affairs of a professional football team. it relied on the fact that the club indicated. including the management and control of the professional team.8 It relied.7 In this regard. Whether or not the aircraft should be returned to South Africa and whether or not the other orders relating to the aircraft should be granted is not an issue in the action pending which the interdict was granted. which amounts. had been incorporated as a private company. the right of I the club to manage its own 2005 (3) SA p12 STREICHER JA affairs. they will 9 of 15 2012/03/29 03:55 PM . the club obtained an interim interdict restraining the company from interfering with the management of the professional football team.asp?NXTScript=nxt/gateway. intrinsically difficult as it was to decide whether a decision was 'interlocutory' or 'final'. and predominantly. it was common cause between the parties that the issues raised by the company's plea were the very G issues considered by the Judge who granted the interim interdict. Schutz JA stated that. income and expenses and proposed flight schedules of the aircraft. the test in Pretoria Garrison is wholly inappropriate to determine whether the present order granted is final in effect and thus appealable. Schutz JA held that the question was decided adversely to the appellant. were intended to have immediate effect. the issues in the interdict proceedings in Cronshaw were the B same as the issues which were to be decided in a trial. that it was about to institute an action against the company for a declaration of rights concerning the very matter which was in dispute in the interdict proceedings.'  The first question that arises is whether. A furthermore. the African Wanderers Football Club (Pty) Ltd contended that the Wanderers Football Club. E  In the African Wanderers Football Club (Pty) Ltd case. Cronshaw. was formerly employed by Coin Security subject to a restraint of trade. and Zweni at 532I).. Cronshaw. it is important to bear in mind that 'not merely the form of the order must be considered but also. This Court.jutalaw. In these circumstances. as well as the other orders relating to the aircraft.co. the African Wanderers Football Club (Pty) Ltd. in the light of the decision in Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd1996 (3) SA 686 (A). to the same thing. in its founding affidavit in the interdict proceedings..6 It held that it did not. F  In determining whether an order is final.J as to the meaning of 'judgment or order' in s 20(1) of the Supreme Court Act D 59 of 1959. unless it ''irreparably anticipates or precludes some of the relief which would or might be given at the hearing'' '. its effect' (South African Motor Industry Employers' Association v South African Bank of Athens Ltd1980 (3) SA 91 (A) at 96H. from a reading of the judgment of Howard J and having regard to the order made by him. In the action. G  The order that steps be taken to procure the return of the aircraft to South Africa. and had therefore ceased F to exist.d.
its loan account in the new partnership and its share in the claim of the new J 2005 (3) SA p14 STREICHER JA partnership against FirstRand Bank in respect of the credit balance in the new banking account.METLIKA TRADING LTD AND OTHERS v COMMISSIONER. the Court a quo had jurisdiction in respect of both the new partnership's partners. As stated above. C  Pistorius Pollak on Jurisdiction 2nd ed at 70 says: 'Artificial as it may be to ascribe the term ''residence'' to the place where a partnership carries on business. Some support for this conclusion is to be found in Phillips and Others v National Director of Public Prosecutions2003 (6) SA 447 (SCA) in paras  . the court in whose area of jurisdiction the principal place of business of a F partnership is should be the most convenient forum as far as the partnership is concerned and should in general be the court whose judgments against the partnership could most effectively be enforced. in terms of the provisions of s 12 of the Companies Act 61 of 1973. there is no evidence on the basis of which it can be found B that the new partnership relocated its place of business to Mauritius. which is within the area of jurisdiction of the Court a quo. The estate of a partnership may also be sequestrated as such (s 13 of the Insolvency Act 24 of 1936. 10 of 15 2012/03/29 03:55 PM . there is merit in the submission that. The Court a quo. SOU. A partnership's  The new partnership and Carmel appeal against the whole of the order which confirmed the attachment. there is no evidence on the basis of which it can be found that the new B partnership relocated its business to Mauritius. An attachment of its assets was. for the reasons that follow.  On behalf of Carmel and the new partnership. was final in the sense required by the case law for appealability. the principal place of business of a partnership constitutes a sufficient connecting factor with the court concerned to permit it to exercise jurisdiction over the partnership.d. In terms of Rule 14(2) it may. it was submitted that the new partnership carried on business in Mauritius. as in the case of companies. there is evidence that it is the intention of Carmel that the new partnership's place of business be relocated to Mauritius. it is submitted that. in which it was held that a restraint order in terms of the Prevention of Organised Crime Act 121 of 1998 which was considered to be analogous to an interim interdict for attachment of property pending litigation. I 2005 (3) SA p13 STREICHER JA  The question then arises whether the Court a quo had jurisdiction to order that steps be taken to procure the return of A the aircraft. had jurisdiction in respect of HAS.asp?NXTScript=nxt/gateway. The assets attached were Carmel's share in the new partnership.. therefore. HAS and Carmel.' D  A partnership is not a legal entity separate from the individual partners.. be sued or sue in its own name. from its present address. as. In these circumstances. however. therefore.. being Mauritius. Rule 14(5)(h) provides that execution in respect of a judgment against a partnership shall first be levied against the assets of the partnership and only after such excussion E against the private assets of any person held to be. However. At best for the new partnership and Carmel. For these reasons. not necessary to decide the question as to whether the Court a quo had jurisdiction in respect of the new partnership on this basis. In this regard. as in the case of companies.za/nxt/print. http://ipproducts. which was confirmed by Hartzenberg J. not be reconsidered at the trial and will not be reconsidered on the same facts by the Court a quo. required in order to confer jurisdiction on the I Court a quo or to confirm its jurisdiction over the company.co. Carmel is a company registered in Mauritius. however. see also s 49(1)). H  HAS is a South African company with its registered office within the area of jurisdiction of the Court a quo.. For these reasons. it first has to be determined whether the Court a quo had jurisdiction in respect of the new partnership. It was submitted on their behalf that Carmel's partnership share was located where the new partnership carried on business. the location of the principal place of business of a partnership within the area of jurisdiction of a court should be sufficient to confer jurisdiction on that court in respect of the G partnership. It is.jutalaw. Such attachment was performed in terms of a provisional order granted by De Vos J. a partner. they are in H effect final orders. or held to be estopped from denying his status as.
11 It is. However. the partner in the partnership. R24 550 450. in actual fact. It did so in collaboration with its holding company. However. had been interdicted from alienating or disposing of any of their assets. it was submitted that any credit balance on the account would accrue to the previous partnership.METLIKA TRADING LTD AND OTHERS v COMMISSIONER. approximately R190 000 000. http://ipproducts. in the light of the fact that they were trying to defeat the right that the respondent would acquire at the successful conclusion of the action to levy execution against the aircraft. G HAS would. The appellants did not contend that the respondent had not D established the requisites for such an interdict.d. the respondents relied on Lenders & Co Ltd v Lourenco 11 of 15 2012/03/29 03:55 PM . have become entitled to require RMB and Manco to withdraw from the partnership. to which I shall refer. necessary to determine whether the Court a quo could enforce compliance H with the order. for many years.. Metlika. It claimed to be B entitled to such an order in order to preserve the assets of Ben Nevis. on H these facts. once again. that Carmel had not acquired a loan against the new partnership. Metlika..9% interest in an asset worth. It is similar to the Mareva injunction in English law. to the effect that such an order is G permissible. C  An interdict at the instance of a creditor preventing his debtor. I to Carmel to acquire the RMB and Manco interests in the partnership. SOU. On the appellants' own version. Metlika provided the necessary funds. It follows that there is no merit in respect of Carmel's appeal against the orders confirming the attachments and that it should be dismissed. counsel did refer us to English authority. Counsel for the respondent was similarly unable to find a case in which such an order had been granted.  Counsel for the partnership and Carmel submitted. In terms of that order. from getting rid of his assets to defeat his creditors has. never that the respondent was entitled to the return of the aircraft on the basis of a breach of the preservation order. In terms of the option agreement. ie a 99. In respect of Carmel's interest in the new partnership's credit in its banking account with FirstRand Bank. furthermore. what the respondent alleges to be.. They were unable to find any case in England or in South Africa in which a party had been ordered by F way of this type of relief to procure the return of an asset situated in another country to England or South Africa.asp?NXTScript=nxt/gateway. By not doing so. pending an action instituted or to be instituted by the creditor. E  The next question to be decided insofar as the jurisdiction of the Court a quo is concerned is whether it had jurisdiction to order that steps be taken to procure the return of the aircraft. HAS would have had no difficulty in raising the funds to acquire the aircraft for itself. F HAS. In support of their submission that the Court a quo could not give effect to its order. being its right to acquire the aircraft and thereby breached the Court order. The movements of the aircraft were never restricted. therefore. as well as its holding company.  The Court a quo granted the order on the basis that the preservation order had been breached. on the appellants' version. the partnership would have come to an end and HAS would have become the owner of the aircraft. They argued that the aircraft was in a foreign country and E that the Court a quo had no jurisdiction to order its return to South Africa because such an order infringed the sovereignty of the foreign country concerned and because the Court a quo would be unable to give effect to its order. Had it done so. Metlika and HAS. Faced with this problem. ie they did not contend that. the estate of King or Ben Nevis. the agreement in terms of which Carmel acquired C RMB's partnership interest specifically recorded that Carmel purchased RMB's loan claims against the partnership. It is self-evident that.  If the Court a quo were not able to enforce compliance with the order which it granted. J 2005 (3) SA p15 STREICHER JA  It does not follow that HAS and Metlika breached the order by removing the aircraft to a foreign country and by failing to return A it to South Africa. was indebted to RMB in an amount of R24 550 450. the partnership. had the aircraft been within the area of jurisdiction of the Court a quo. it had no jurisdiction to grant it. against payment of that amount. However. counsel for the respondent submitted that the respondent's case was.co.jutalaw.. It is common cause that the value of the aircraft is approximately R190 000 000. after RMB had terminated the loan agreement and had applied the deposit in respect of the outstanding balance of the loan agreement. Carmel purchased RMB's as well as Manco's interests in the partnership and therefore D also their interests in the credit balance.za/nxt/print. the respondent would not have been entitled to an interim restraining order preserving the aircraft as an asset in.F). been recognised in our law (Knox D'Arcy at 372C . Metlika and HAS would not have done so had Carmel been anything other than Metlika in another guise. it alienated a valuable asset.
The Court would therefore have been powerless to enforce its judgment if the respondent chose to ignore H the order and started fishing in the waters of Tristan da Cunha. From a reading of the judgment. The respondent was only temporarily within the area of jurisdiction of the Court. Makoti v Brodie and Others1988 (2) SA 569 (B).12 C  The Roman-Dutch jurists held conflicting views in this regard. the Transvaal Provincial Division was not prepared to grant an order that F the Government should hand over cattle held by it in Botswana to the respondent who was entitled to have the cattle restored to him. http://ipproducts. Voet 5:1:77 and Voet 2:1:46:47.20 12 of 15 2012/03/29 03:55 PM .. and Parents' Committee of Namibia and Others v Nujoma I and Others1990 (1) SA 873 (SWA).'  In Minister of Agriculture v Grobler. Marques Wharf Co Ltd 1904 TH 176. South Atlantic Islands Development Corporation Ltd v Buchan1971 (1) SA 234 (C). It refused to do so because the matter 'had not sufficiently clearly (been) laid before the Court' and the authorities were not conclusive. that his attention had not been directed to the work of any writer on the Roman Dutch law and that he had been unable to find any case in the Courts of Equity in England in which such jurisdiction had been exercised.17  In Makoti v Brodie. It makes in the same direction E that it has been generally laid down by commentators that movables go with the person. Direct proceedings to recover the timber had to be brought in the court at Delagoa Bay and the same result could not be obtained indirectly through the medium of the Transvaal Court. Forsyth.. 2005 (3) SA p16 STREICHER JA  In Lenders & Co Ltd v Lourenco Marques Wharf Co Ltd. prohibiting him from fishing in the waters of Tristan da Cunha. in the Parents' Committee case. not persuaded that it could give an effective judgment against incolae of the Court for the release of detainees unlawfully detained in Angola. . Smith J stated B that no authority had been cited showing that the Court had jurisdiction. the court may assume jurisdiction to grant an interdict (whether mandatory or prohibitory) no matter if the act in question is to be performed or restrained outside the court's area'. SOU. but allow of restitution at every place. it was held that the Transvaal High Court had no jurisdiction A to order the delivery of timber at Delagoa Bay.18 B  The Supreme Court of South West Africa was. and. relying on Lenders and South Atlantic Islands. Private International Law 4th ed at 233.d.16 G  In South Atlantic Islands Development Corporation Ltd v Buchan. so far as concerns legal results. having to be moved from one place to another at the discretion of the Judge or even of the unsuccessful defendant. including the very place of domicile. it 2005 (3) SA p17 STREICHER JA was held that a court does not have jurisdiction to order incolae A defendants to deliver movable property situate outside the country because a court could not give an order which would be effective in the sense that the court could ensure its execution in 'the usual direct manner. A Judge was thus able effectively to give judgment against a defendant subject to him in respect of domicile for the making restitution of something movable in any suitable place.13 Voet says at 5:1:77:14 D 'Movables are not tied to any definite place. In this regard. Minister of Agriculture v Grobler 1918 TPD 483.15 The Court had been referred to Lenders.co. ie that the mere fact that a respondent is an incola of the court is insufficient to confer jurisdiction on the court to make an order for delivery of movable property situate D outside the Republic.jutalaw.. That was held to be so although the respondent was a company registered in the Transvaal and had its head office within the jurisdiction of the Court. Others were of the view they could also be dealt with at the place where the defendant was domiciled. it would seem that it had not been submitted that such a judgment could be rendered effective by way of contempt proceedings C against the respondents. on the other hand.asp?NXTScript=nxt/gateway. . He argues that if 'the respondent is E an incola . the court will have control over him and will be in a position to ensure compliance with its order'. are deemed to be at the place where the owner of them cherishes domicile.  Pollak19 accepts that Lenders reflects our law as regards foreign jurisdictions. even though physically they have been stationed elsewhere.METLIKA TRADING LTD AND OTHERS v COMMISSIONER. ie by directing an officer of the Court to take possession' of the movable..za/nxt/print. the Court refused to grant an order against the master of a foreign fishing vessel. Some were of the view that disputes as to ownership or possession should be aired only at the place where the thing was situated. is of the view that 'if the respondent is an incola.
..METLIKA TRADING LTD AND OTHERS v COMMISSIONER.asp?NXTScript=nxt/gateway. to ordering the transfer of assets to a jurisdiction in which the order of the English Court after the trial would be recognised from a jurisdiction in which that order will not be recognised. in the particular circumstances of the case. the Court was dealing with the question whether the defendants should procure the transfer of certain assets out of Switzerland. F such an order was not made as the Judges were agreed that. the order should not be made in the exercise of the Court's discretion.d.'  In Derby & Co Ltd and Others v Weldon and Others (No 6)  3 All ER 263 (CA). that the refusal of a Mareva injunction would involve a real risk that a judgment or award in favour E of the plaintiffs would remain unsatisfied'. quite understandably. on the assumption that the plaintiff has shown at least ''a good arguable case''. The problems caused by rapidly growing commercial and financial sophistication are universal and our courts can only benefit from taking note of the way in which the English courts deal with such H problems. in Derby & Co Ltd and Others v Weldon and Others (No 2)  1 All ER 1002 (CA) at 1007f . held that more recent developments of the law in relation to Mareva injunctions showed that views expressed by him in that judgment were wrong.za/nxt/print. in respect of an appeal against an order made after judgment. concluded that F Mareva injunctions should be limited to assets located within the jurisdiction.856A. SOU. precluding the defendants from dealing with any of their assets worldwide without giving five days' notice to the G plaintiffs' solicitors in every case. is die feit A dat 'n vonnisskuldenaar wat nie vrywillig aan 'n Hofbevel ad factum praestandum uitvoering gee nie minagting pleeg en hom aan gevangenisstraf blootstel.g: 'We live in a time of rapidly growing commercial and financial sophistication and it behoves the courts to adapt their practices to meet the current wiles of those defendants who are prepared to B devote as much energy to making themselves immune to the courts' orders as to resisting the making of such orders on the merits of their case.' Lord Donaldson of Lymington MR said. . Whether an order which is qualified in this way would be I 2005 (3) SA p18 STREICHER JA enforced by the courts of states where the defendant's assets are situated would of course A depend on the local law. provided that the order makes it clear that it is not to have any direct effect on the assets or on any third parties outside the jurisdiction save to the extent that the order may be enforced by the local courts.25 He concluded that he could see no objection in principle and. The latter submission was. be transferred: I 2005 (3) SA p19 STREICHER JA 'Na my oordeel behoort hierdie vraag bevestigend beantwoord te word.. of course. G  English principles relating to Mareva injunctions are. dealing with a pre-judgment Mareva injunction.. on the whole of the evidence then before it. 'n Belangrike faktor wat ommiddellik na vore tree. but within the Republic. that is no longer the position in England. However. not advanced in oral argument before us.24 He quoted a passage from a judgment by Kerr LJ to the effect that the test for a Mareva injunction is 'whether. in Babanaft International Co SA v Bassatne and Another  1 All ER 433 (CA) at 444b .d: 'Apart from any EEC21 or EFTA22 connection.  In Ashtiani and Another v Kashi  2 All ER 970 (CA) at 976 and 979. there is in any event no jurisdictional (as opposed to discretionary) ground which would preclude an English court from granting a pre-judgment Mareva injunction over assets situated anywhere outside the H jurisdiction. Some 14 years later. Kerr LJ said. in an appropriate case. not automatically applicable but serve to show that no reason in principle for not coming to the assistance of the respondent in the present case is to be found in the English law. .co.  In Hugo v Wessels1987 (3) SA 837 (A) at 855J . . which are owned or controlled by a defendant who is subject to the jurisdiction of our courts. who had given a judgment C in Ashtiani. Hoexter JA said.26 The other members of the Court agreed that the Court had the power to make such an order. The 13 of 15 2012/03/29 03:55 PM . the Court of Appeal in England. in regard to the question whether effect could be given to an order that an immovable property situated outside the jurisdictional area of the court.'  Counsel for the first and second appellants submitted in their heads of argument that Hugo v Wessels did not assist the respondent in that it was distinguishable and in that the order in the present case is an order ad pecuniam solvendam and B not ad factum praestandum. Dillon LJ. However.23 He stated that the object of a Mareva injunction was 'that within the limits of its powers no court should permit a defendant to take action designed to ensure that subsequent orders of the court D are rendered less effective than would otherwise be the case'. http://ipproducts.jutalaw. the court concludes.
HAS. in the event of a failure by HAS to comply with the order. http://ipproducts. As operations manager. It will. Webbers. the appeal is dismissed with costs. In these circumstances it was clearly within the power of the new partnership and HAS to procure the return of the aircraft to the Republic. if the respondent is an incola. including the costs of three counsel. Respondent's Attorneys: State Attorney.co. That Hugo v Wessels is distinguishable on the facts is clear but that does not affect the quoted statement at all. South African Civil Aviation Authority. It is an order in personam against A respondents subject to the Court's jurisdiction and not against third parties. At 47A . Patel AJA and Ponnan AJA concurred. In terms of an operations management agreement with E the partnership.  It is thus clear that the intention was that the aircraft be based in South Africa and that its operation to and from South Africa be managed by HAS. At 45D.jutalaw. to the extent not consistent with this judgment. Conradie JA.METLIKA TRADING LTD AND OTHERS v COMMISSIONER.. Honey Attorneys. if not complied with. The order could be enforced by contempt of I Court proceedings against the directors of HAS. C First and Second Appellants' Attorneys: Moss-Morris. As consideration for its services. In F doing so.D. Third and Fourth Appellants' Attorneys: Cliffe Dekker Inc. Cameron JA. HAS was entitled to 80% of the amount by which the difference between the income earned by the business and the expenses incurred by the H business exceeded a certain amount.. it was obliged to procure that the aircraft at all times complied with all laws and regulations applicable in the Republic with regard to mechanical condition. HAS was. a South African company which is a partner in the partnership that owns the aircraft. The authority to the contrary is not persuasive and should. I agree with Forsyth's view that.. 14 Gane's translation. 12 At 180. Jacobson & Levy Inc. Carmel. D The first and second appellants did not persist with their appeal against some of the additional orders. C  In the light of the aforegoing. Bloemfontein. HAS was obliged to G ensure compliance with the immigration and exchange control regulations of the Republic and the health and foreign travel requirements of the country of destination. The availability of that remedy. At 890E . the Court may assume jurisdiction to grant an interdict (whether mandatory or prohibitory) in personam no matter if the act in question is to be performed or restrained outside the Court's area of D jurisdiction.D. At 47C . For the same reason. At 46C .J. which agreement provided that it could not be terminated on or before 31 August 2004.d. Sandton. rendered the order sufficiently effective to confer jurisdiction on the Court a quo to grant the order. the operations manager of the aircraft. B  For these reasons. Ewing McDonald & Co Ltd v M & M Products Co1991 (1) SA 252 (A) at 259D . Steytler NO v Fitzgerald 1911 AD 295 at 346.. at the time when the order under appeal was granted. In the case of cross-border flights. It applies with equal force in the present situation. Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd1969 (2) SA 295 (A) at 307.F. be considered to have been overruled. Sandton. Pretoria. J 2005 (3) SA p20  The order does not affect the sovereignty of a foreign court at all. there is no merit in the argument by the respondents that the order amounts to an impermissible attempt to enforce a South African revenue claim in a foreign State. At 47H.asp?NXTScript=nxt/gateway. Pretoria. order is clearly one ad factum praestandum.  The aircraft is registered in South Africa in the name of HAS. technical fit-out and general airworthiness and that the aircraft was at all times operated only by qualified and duly registered pilots in compliance with the laws of the Republic.B. 13 Voet 5:1:77. Pretoria and Bloemfontein.za/nxt/print. be enforced in South Africa against the respondents concerned. Bloemfontein. it was responsible for the management and operation of the aircraft on behalf of the new partnership. Jacobson & Levy Inc. SOU. 1 2 3 4 5 6 7 8 9 10 11 14 of 15 2012/03/29 03:55 PM .
co. European Free Trade Association. At 103.za/nxt/print. 15 of 15 2012/03/29 03:55 PM .g. See at 240G .asp?NXTScript=nxt/gateway. Ltd. At 231 . At 273d.METLIKA TRADING LTD AND OTHERS v COMMISSIONER.. 15 16 17 18 19 20 21 22 23 24 25 26 At 488. At 576A and E.H.. SOU. European Economic Community.3. http://ipproducts. E © 2005 Juta and Company.d. At 272a.. See at 486..jutalaw. At 273f . At 273e .
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