THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 823/2015

In the matter between:

TRAVELEX LIMITED
APPELLANT

and

SEAN MALONEY
FIRST RESPONDENT
GILLIAN MALONEY
SECOND RESPONDENT

Neutral citation:  Travelex Limited v Maloney (823/15) ZASCA 128
(27 September 2016)

Coram:
Mpati AP, Tshiqi and Mathopo JJA and Schoeman and
Fourie AJJA

Heard:
17 August 2016
Delivered:
27 September 2016

Summary: Civil procedure: rescission application: based on alleged lack
of jurisdiction of court that granted order of attachment ad fundandam et
confirmandam jurisdictionem: ratio jurisdictionis present: no submission
to
jurisdiction
established.

_____________________________________________________________________
ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Teffo J
sitting as court of first instance):
The appeal is dismissed with costs, such costs to include the costs of two
counsel.
___________________________________________________________
JUDGMENT
Schoeman JA (Mpati AP, Tshiqi and Mathopo JJA and Fourie AJA
concurring)

[1] The Gauteng Division, Pretoria refused an application by the
appellant to set aside an order granted at the instance of the respondents
attaching shares owned by the appellant in a company, FX Africa Foreign
Exchange (Pty) Limited (FX Africa), ad fundandam et confirmandam
jurisdictionem. This appeal is with the leave of the court a quo.

Background
[2] On 8 December 2010 the parties entered into an agreement related
to the sale of shares in FX Africa. In terms of the agreement the appellant
purchased the second respondent‟s shares in FX Africa as well as those
shares held by Sanderling Investments Incorporated, a company
incorporated in the Virgin Islands.

[3] The appellant is a peregrinus of South Africa while the respondents
are peregrini of the Gauteng Division, but incolae of South Africa. They

are both permanently resident in the area of jurisdiction of the Western
Cape Division of the High Court.

[4] The respondents, as applicants, brought an urgent application in the
Gauteng Division, Pretoria, on 19 November 2013 for the attachment of
the appellant‟s shares in FX Africa ad fundandam et confirmandam
jurisdictionem. The first respondent claimed locus standi in the Gauteng
Division on the basis that one of the suspensive conditions contained in
the agreement was that he was obliged to deliver to the appellant and FX
Africa his letter of resignation, both as an employee of FX Africa and as a
director of subsidiaries of FX Africa. The application for interim relief
was served on the appellant. Without opposition, but in the presence and
with the acquiescence of the appellant‟s counsel, an interim order was
granted attaching the shares. On the return date, 6 February 2014, the
application was unopposed, but again in the presence and with the
acquiescence of the appellant‟s legal representatives Prinsloo J confirmed
the rule nisi attaching the shares. I will refer to this order as „the initial
order‟.

[5] The attachment preceded an action for damages instituted by the
respondents against the appellant following an alleged repudiation of the
agreement. Two months later the appellant launched the rescission
application, seeking, inter alia, the setting aside of the initial order and the
action that had been instituted.

[6] The application, according to the founding affidavit of Mr Birch, a
director of the appellant, was premised on the fact that the court granting
the initial order did not have jurisdiction to do so. The reason advanced
was that the appellant had submitted to jurisdiction in the agreement and

therefore an attachment order was incompetent and impermissible.
During argument in the court a quo, counsel for the appellant raised a
further issue, namely that there was no ratio jurisdictionis for the initial
order and the subsequent action and that the court should therefore set
aside the initial order and the action.

[7] The respondents answered to the allegation relating to the
appellant‟s alleged submission to jurisdiction, but did not address the
issue of the ratio jurisdictionis of the court. This is because that issue was
not raised in the founding affidavit. The application was dismissed on the
basis that the appellant did not make out a case for rescission on those
grounds, as it should have.

[8] The appellant did not bring the application for rescission in terms
of the common law or the provisions of Uniform rule 42(1)(a) or (c). The
appellant argued that the court that granted the initial order did not have
the necessary jurisdiction to do so, due to the absence of a ratio
jurisdictionis, and that the appellant had in any event submitted to the
jurisdiction of the court.

Issues
[9] The appeal is opposed on three grounds, namely that (a) the
appellant procedurally should have brought the application for rescission
of the initial order either in terms of the common law or the provisions of
Uniform rule 42(1)(a) and (c) and that failure to do so resulted in the
court a quo correctly dismissing the application); (b) a recognised ratio
jurisdictionis existed and the court that granted the initial order therefore
had the requisite jurisdiction; and (c) the appellant had not submitted to
the court‟s jurisdiction.

The procedure in the application for rescission
[10] In dismissing the rescission application, the court a quo did not
consider the appellant‟s arguments that the court that granted the initial
order did not have jurisdiction to do so. Although the judgment mentions
that the appellant based its application on the lack of jurisdiction, no
reference is made in the judgment to the arguments advanced in this
regard or the issue of the absence of jurisdiction. Before us counsel for
the appellant submitted that the rescission application was in any event
unnecessary because the court that granted the initial order lacked
jurisdiction and that the initial order was, therefore, a nullity and could
simply be ignored.

[11] In Campbell v Botha1 Streicher JA quoted with approval the
following passage by Innes CJ in Lewis & Marks v Middel 1904 TS 291
at 303:
„[T]he authorities are quite clear that where legal proceedings are initiated against a
party, and he is not cited to appear, they are null and void; and upon proof of
invalidity the decision may be disregarded, in the same way as a decision given
without jurisdiction, without the necessity of a formal order setting it aside (Voet, 2.
4. 14, and 66; 49. 8. 1 and 3. . . . .
Voet 49:8:3 says:
„But by the customs of today such over stressful and pettifogging discussion on fine
points of law as to whether a decision is ipso jure void, or holds good by strict law
and must be set aside through the remedy of an appeal, has been as far as possible
abolished. The ruling has rather prevailed that decisions are never annulled under
cover of nullity without appealing. There are exceptions when the nullity arises from
a lack of jurisdiction, or of summons or of an attorney’s mandate.‟ (My emphasis.)

1 Campbell v Botha & others [2008] ZASCA 126; 2009 (1) SA 238 (SCA) at 243I-244B.

[12] This was again emphasised in The Master of the High Court (North
Gauteng High Court, Pretoria) v Motala NO & others,2 when Ponnan JA
said:
„As long ago as 1883 Connor CJ stated in Willis v Cauvin 4 NLR 97 at 98 – 99:
“The general rule seems to be that a judgment, without jurisdiction in the Judge
pronouncing it, is ineffectual and null. . . ”
Willis v Cauvin was cited with approval in Lewis & Marks v Middel 1904 TS 291; and
Sliom v Wallach’s Printing & Publishing Co, Ltd 1925 TPD 650. In the former,
Mason J (with whom Innes CJ and Bristowe J concurred) held at 303:
“It was maintained that the only remedy was to appeal against the decision of the
Land Commission; but we think that the authorities are quite clear that where legal
proceedings are initiated against a party, and he is not cited to appear, they are null
and void; and upon proof of invalidity the decision may be disregarded, in the same
way as a decision given without jurisdiction, without the necessity of a formal order
setting it aside (Voet, 2, 4, 14; and 66; 49, 8, 1, and 3; Groenewegen, ad Cod. 2; 41; 7,
54; Willis v Cauvin, 4 N.L.R. 98; Rex v Stockwell, [1903] T.S. 177; Barnett & Co. v
Burmester & Co., [1903] T.H. 30).”‟

[13] The Constitutional Court in MEC for Health, Eastern Cape &
another v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute3
affirmed this approach:
„In The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO
and Others 2012 (3) SA 325 (SCA) the Supreme Court of Appeal, reaffirming a line
of cases more than a century old, held that judicial decisions issued without
jurisdiction or without the citation of a necessary party are nullities that a later court
may refuse to enforce (without the need for a formal setting-aside by a court of equal
standing). This seems paradoxical but is not. The court, as the fount of legality, has
the means itself to assert the dividing line between what is lawful and not lawful. For

2 The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO & others [2011]
ZASCA 238; 2012 (3) SA 325 (SCA) at 331J - 332D; See also Vidavsky v Body Corporate of Sunhill
Villas [2005] ZASCA 53; 2005 (5) SA 200 (SCA) para 14.
3 MEC for Health, Eastern Cape & another v Kirland Investments (Pty) Ltd t/a Eye & Laser Institute
[2014] ZACC 6; 2014 (3) SA 481 (CC).

the court itself to disclaim a preceding court order that is a nullity therefore does not
risk disorder or self-help.‟

[14] The respondents argued that even if there was a lack of jurisdiction
in the present matter that did not exonerate the appellant from proceeding
in terms of the rules or the common law. They relied on Bezuidenhout v
Patensie Sitrus Beherend Bpk4 where Froneman J said:
„I could find no support in the cases he [advocate for the applicant] referred to for the
proposition that another court of equal standing could vary or discharge an order for
temporary relief if the court that issued the original order lacked jurisdiction to deal
with the issues it did (but, to be fair, I may have misunderstood the argument).‟

[15] The facts of the instant matter differ markedly from Bezuidenhout.
In that case it was found that the Competition Tribunal did not have the
competence under the Competition Act 89 of 1998 to issue orders in
conflict with pre-existing orders of the relevant division of the high court
which had not been set aside, nor does the tribunal have the competence
under the Act to set aside such orders. The passage from the judgment of
Fronaman J quoted above was in response to counsel‟s contentions and is
of no assistance to the respondents.

[16] I incline to the view that if a judgment or order has been granted by
a court that lacks jurisdiction, such order or judgment is a nullity and it is
not required to be set aside. However, I agree with the view expressed in
Erasmus Superior Court Practice, that if the parties do not agree as to the
status of the impugned judgment or order, it should be rescinded.5 That is
the position in the instant matter where the appellant applied to have the
order set aside on the premise that the court did not have jurisdiction.

4Bezuidenhout v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (E) at 231H-232A.
5 D E van Loggerenberg and P B J Farlam 2 ed  (looseleaf) Vol 1 Erasmus Superior Court Practice.
Section 21 notes.

Therefore, the usual requirements for a rescission application in terms of
the common law or rule 42 do not apply.

Did the court granting the initial order have jurisdiction?
[17] In Ewing McDonald & Co Ltd v M & M Products Co6 the different
bases upon which a court will assume jurisdiction in a claim sounding in
money were discussed. Of relevance to the instant matter is point (c)
which is set out as follows.
„Where the plaintiff is a peregrinus (foreign or local) and the defendant is a foreign
peregrinus both a recognised ratio jurisdictionis as well as an arrest or attachment are
essential. Any arrest or attachment merely ad fundandam jurisdictionem would not be
sufficient. To be sufficient the arrest or attachment must necessarily be one ad
confirmandam jurisdictionem. (Cf Pollak (op cit at 52, 58, 62 - 3); Herbstein and Van
Winsen (op cit at 40); Maritime & Industrial Services Ltd v Marcierta Compania
Naviera SA; NV Scheepsvictualienhandel Atlas & Economic Shipstores Ltd v
Marcierta Compania Naviera SA 1969 (3) SA 28 (D).)‟
This was affirmed as a correct exposition of our law.7

[18] The respondents are incolae of the Western Cape Division of the
High Court and thus local peregrini of the court a quo. The appellant is a
foreign peregrinus. Therefore it is necessary to determine: (a) whether
there was a recognised ratio jurisdictionis, for only if there was a ratio
jurisdictionis would an attachment be competent; and (b) if the court had
jurisdiction then it must be determined whether or not the appellant had
submitted to its jurisdiction.

[19] In the founding affidavit, Mr Birch only referred to the submission
to the court‟s jurisdiction and did not allege a lack of a ratio jurisdictionis.

6 Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A) at 258E-259B.
7 Siemens Ltd v Offshore Marine Engineering Ltd 1993 (3) SA 913 (A) at 929G-H.

This is understandable, for if the court did not have jurisdiction, then
there could be no valid submission to jurisdiction. However, in the court a
quo and in this court the appellant presented these contradictory
arguments viz that there was no ratio jurisdictionis and that the appellant
had submitted to the jurisdiction of the court. The latter cannot happen
without the former. It is therefore necessary to determine whether there
was a ratio jurisdictionis and only if so, whether the appellant has
submitted to the jurisdiction of the court.

Ratio jurisdictionis for the action
[20] The agreement, which forms the basis of the action, was signed in
Cape Town and Switzerland. The purchase price had to be paid in Cape
Town. The appellant argued that no other performance in terms of the
contract conferred jurisdiction on the court a quo, and as the contract was
not repudiated within the jurisdiction of the court a quo, the court did not
have the necessary jurisdiction to entertain the action or the application
for attachment. The appellant submitted that only the Western Cape
Division had the necessary jurisdiction.

[21] It is the respondents‟ case that this argument is incorrect, as there
were certain performances that had to take place within the area of
jurisdiction of the court. In Veneta Mineraria Spa v Carolina Collieries
(Pty) Ltd8 it was determined that „[b]y prorogation a defendant subjects
his person to the jurisdiction of the Court, but that is not enough. One or
more of the traditional grounds of jurisdiction must also be present.‟.

8 Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd 1987 (4) SA 883 (A) at 890E - 891B; See
also:Gallo Africa Ltd & Others v Sting Music (Pty) Ltd & Others [2010] ZASCA 96, 2010 (6) SA329
(SCA) at para 10.

[22] A court in whose area of jurisdiction a contract must be performed
has jurisdiction, as well as the court in whose area of jurisdiction part of a
contract has to be performed.9

[23] As no evidence was presented in the founding affidavit regarding
the lack of jurisdiction, it is incumbent on the court to rely solely on the
agreement to determine whether or not there is a contractual connection
with the court a quo‟s area of jurisdiction (Is it not of the court that
granted the initial order). The agreement relates to the sale of shares in
FX Africa, which company has both its registered office and principal
place of business in Johannesburg, within the court‟s area of jurisdiction.
The shares are located within the court‟s area of jurisdiction and, in terms
of the agreement, delivery of the share certificates and other
documentation had to take place within the court‟s area of jurisdiction.
The grant of exchange control approval was a suspensive condition of the
agreement and had to be performed within the court‟s area of jurisdiction.
Furthermore, in the event of any of the suspensive conditions not being
fulfilled, the respondents had to pay an amount of R2.2 million into the
appellant‟s bank account in Johannesburg, within the area of jurisdiction
of the court a quo. Although the agreement was not entered into or
payment of the purchase price had to be effected within the court‟s area
of jurisdiction these mentioned facts bring it into the ambit of a „direct
connection‟ to the court‟s area of jurisdiction. Therefore the necessary
ratio jurisdictionis, in my view, did exist.

Submission to the jurisdiction of the court
[24] The correct approach to determine whether the appellant had
submitted to the jurisdiction of the court is to ask if the cumulative effect

9 Roberts Construction Co  Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A) at 331H-332A.

of the proven facts establish a submission on the balance of
probabilities.10

[25] The respondents argued that any submission by the appellant to the
court‟s jurisdiction would be incompetent, for a peregrinus defendant can
only submit to the jurisdiction of a court of which the plaintiff is an
incola. Therefore any submission by the appellant would have had no
effect because the respondents are also peregrini of the court. They based
this argument on Tsung & another v Industrial Development Corporation
of SA Ltd11 where the following was said:
„The rationale for jurisdiction is often said to be one of effectiveness, and attachment
is historically and logically closely related to this principle; but not only has the
principle of effectiveness been eroded (Forsyth says “it is artificial and conceptual
rather than realistic”), effectiveness is also not necessarily a criterion for the existence
of jurisdiction. In one instance, effectiveness is non-existent, and that is in the case of
submission to jurisdiction (also referred to as prorogation). The reason is this: If a
peregrine defendant has submitted - whether unilaterally or by agreement - to the
jurisdiction of the court of the incola, an attachment or arrest to found or confirm
jurisdiction is not only unnecessary, it is not permitted. (Consent on its own cannot
confer jurisdiction unless the plaintiff is an incola.)‟ (footnotes omitted, my
emphasis).

[26] In the case of a peregrinus defendant, what is additionally required,
with either attachment to found jurisdiction or a submission to
jurisdiction, is „ . . . the link between the cause and the court, a link that is
established when the plaintiff is an incola‟12. As stated in Veneta
Mineraria SPA at 894A-B, if the plaintiff and defendant are both

10 Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd [2004] ZASCA
116; 2005 (2) SA 522 (SCA) para 13.
11 Tsung v Industrial Development Corporation of SA Ltd  [2006] ZASCA 28; 2006 (4)      SA 177
(SCA) para 6.
12 Hay Management para 23.

peregrini, submission to jurisdiction by the defendant alone is
insufficient, one or more of the traditional grounds of jurisdiction must
also be present. Therefore if there is a ratio jurisdictionis, although the
plaintiff is not an incola, the appellant was able to submit to the
jurisdiction of the court. This is the only logical conclusion.

[27] Mr Birch stated in the founding affidavit that:
„. . .properly construed, paragraph 17 of the agreement required any dispute to be
resolved finally by way of arbitration and, in the event of a dispute arising, that
written notice thereof be given should any party wish to commence arbitration
proceedings to have the dispute resolved.‟

[28] Clause 17 of the agreement deals with arbitration in the event of
any dispute arising from the agreement. It is argued that in terms of
clause 17.7 of the agreement the appellant submitted to the jurisdiction of
the court and therefore attachment was not allowed.
Clause 17 reads:
„17
ARBITRATION
17.1
Any dispute arising from or in connection with this agreement shall be finally
resolved in accordance with the Rules of the Arbitration Foundation of
Southern Africa (“AFSA”) by an arbitrator or arbitrators appointed by AFSA.
17.2
Any Party shall be entitled to require that a dispute be determined by
arbitration in terms of this 17 by giving written notice thereof to the other
Parties.
17.3
This 17 shall not preclude any Party from obtaining interim relief on an urgent
basis from (or instituting any interdict, injunction or similar proceedings in) a
court of competent jurisdiction pending the decision of the arbitrator.
17.4
The decision of the arbitrator shall be final and binding on the Parties to the
dispute and may be made an order of any competent court at the instance of
any of the Parties to the dispute.

17.5
The Parties hereby consent to the non-exclusive jurisdiction of the South
Gauteng High Court, Johannesburg for the purpose of any interim relief
proceedings referred to in 17.3 and/or making the decision of the arbitrator an
order of court.
17.6
The Parties agree to keep the arbitration including the subject-matter of the
arbitration and the evidence heard during the arbitration confidential and not
to disclose it to any one except for purposes of interim relief in terms of 17.3
and/or an order to be made in terms of 17.4 or, where required by law, a court
of competent jurisdiction or under the rules of any relevant stock exchange,
listing authority or other competent regulatory body.
17.7
The provisions of this 17 -
17.7.1
constitute an irrevocable consent by each of the Parties to any
proceedings in terms hereof and no Party shall be entitled to withdraw
therefrom or claim at any such proceedings that it is not bound by such
provisions;
17.7.2
are severable from the rest of this Agreement and shall remain in effect
despite the termination of or invalidity for any reason of this
Agreement.‟

[29] To determine whether the appellant submitted to the jurisdiction of
the court a quo, it is necessary to interpret the whole document and
specifically clause 17 thereof. Such interpretation should be objective,
starting with the words of the agreement, while keeping in mind that the
interpretation does not occur in stages, but is „essentially one unitary
exercise‟.13

[30] The whole tenor and context of clause 17 is confined to arbitration.
Clause 17.1 determines that any dispute will be resolved by arbitration
while 17.2 requires written notification of arbitration. Clauses 17.3 and
17.5 relate to submission to jurisdiction solely pending the finalisation of

13 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013] ZASCA
176; 2014 (2) SA 494 (SCA) para 12.

arbitration. It does not deal with an unreserved general submission to
jurisdiction. Clause 17.4 determines that the decision of the arbiter is final
and 17.6 with the confidential nature of the arbitration proceedings and
award. The submission referred to in clause 17.7 is a submission to
arbitration and there is nothing to indicate that the appellant considered
any other legal action.

[31] Apart from the analysis of clause 17 the appellant chose, both in
respect of its physical address and service by facsimile, a London address
and telephone number as its domicilium citandi et executandi. In Hay
Management14 it was found that a foreign company‟s selection of a
domicilium citandi et executandi in South Africa was a significant factor
indicating submission to jurisdiction. By parity of reasoning, the choice
of a foreign domicilium, tends to show that the appellant did not submit
to the jurisdiction of the court.

[32] I am of the view that the cumulative effect of the proved facts does
not, on a balance of probabilities, establish a submission to the
jurisdiction of the court a quo.

Conclusion
[33] It follows that, as the court hearing the application for attachment
ad fundandam et confirmandam jurisdictionem had the requisite
jurisdiction, the application was correctly dismissed, albeit for different
reasons.

[34] The following order is made:

14 Para 14.

The appeal is dismissed with costs, such costs to include the costs of two
counsel.

______________________
I Schoeman
Acting Judge of Appeal

APPEARANCES

For Appellant:
M J Fitzgerald SC
Instructed by:
Bowman Gilfillan, Pretoria
Matsepes, Bloemfontein

For Respondent:

W R E Duminy SC (with him I C Bremridge

SC)
Instructed by:
Ward Ward & Pienaar Attorneys, Pretoria
Symington & De Kok, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

27 September 2016

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Travelex Limited v S Maloney & another (823/15) ZASCA 128 [27 September 2016]

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) delivered a judgment whereby the appeal was dismissed
with costs.

The issues before the SCA was (i) whether the appellant procedurally could have brought the
application for rescission of an order ad fundandam en confirmandam jurisdictionem solely on the
alleged lack of jurisdiction of the court granting the order or should the application have been brought
either in terms of the common law or the provisions of Uniform rule 42(1)(a) and (c); and (ii) whether a
recognised ration jurisdictionis existed and the court that granted the initial order therefore had the
requisite jurisdiction and (iii) whether the appellant had not submitted to the court’s jurisdiction.

On 8 December 2010 the parties entered into an agreement related to the sale of shares in FX Africa.
In terms of the agreement the appellant purchased the second respondent’s shares in FX Africa as
well as shares held by Sanderling Investments Incorporated, a company incorporated in the Virgin
Islands. The appellant was a peregrinus of South Africa while the respondents were peregrini of the
Gauteng Division, but incolae of South Africa. They were both permanently resident in the area of
jurisdiction of the Western Cape Division of the High Court.  The respondents, as applicants, brought
an urgent application in the Gauteng Division, Pretoria, on 19 November 2013 for the attachment of
the appellant’s shares in FX Africa ad fundandam et confirmandam jurisdictionem. The first
respondent claimed locus standi in the Gauteng Division on the basis that one of the suspensive
conditions contained in the agreement was that he was obliged to deliver to the appellant and FX
Africa his letter of resignation, both as an employee of FX Africa and as a director of subsidiaries of

FX Africa. Without opposition, but in the presence and with the acquiescence of the appellant’s
counsel, an interim order was granted attaching the shares. On the return date, 6 February 2014, the
application was unopposed, but again in the presence and with the acquiescence of the appellant’s
legal representatives the court a quo confirmed the rule nisi attaching the shares. The attachment
preceded an action for damages instituted by the respondents against the appellant following an
alleged repudiation of the agreement. Two months later the appellant launched the rescission
application, seeking, inter alia, the setting aside of the initial order and the action that had been
instituted.

The appellant contended that the court granting the initial order did not have jurisdiction to do so and
that the appellant had submitted to the jurisdiction in the agreement and therefore an attachment
order was incompetent and impermissible. In the court a quo, counsel for the appellant raised a
further issue, namely that there was no ratio jurisdictionis for the initial order and the subsequent
action and that the court should therefore set aside the initial order and the action.

On appeal, the SCA stated that if a judgment or order has been granted by a court that lacks
jurisdiction, such order or judgment is a nullity and it is not required to be set aside.  If parties do not
agree as to the status of the impugned judgment or order, it should be rescinded and that was the
position in the instant matter where the appellant applied to have the order set aside on the premise
that the court did not have jurisdiction.

The SCA had to determine: (a) whether there was a recognised ratio jurisdictionis, (for only if there
was a ratio jurisdictionis would an attachment be competent) and (b) if the court had jurisdiction then
it must be determined whether or not the appellant had submitted to its jurisdiction.

The SCA held that in order to determine whether the appellant submitted to the jurisdiction of the
court a quo, it is necessary to interpret the whole document and one of the factors is that the
appellant chose as its domicilium citandi et executandi a foreign domicilium.  The SCA found that the
cumulative effect of the proved facts did not on a balance of probabilities establish a submission to
the jurisdiction of the court a quo and the court hearing the application for attachment had the
requisite jurisdiction and correctly dismissed the application, albeit for different reasons.

--- ends ---