THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no: 243/04

In the matter between:

MICHAEL NAYLOR

First Appellant

ATOMAER (RSA) (PTY) LTD

Second  Appellant

and

PIETER JOHANN JANSEN

Respondent

__________________________________________________________________________

Reportable
Case no: 251/04

In the matter between:

PIETER JOHANN JANSEN

Appellant

and

MICHAEL NAYLOR

First Respondent
ATOMAER (RSA) (PTY) LTD

Second Respondent
ATOMAER HOLDINGS (PTY) LTD

Third Respondent

Coram

:
SCOTT, CAMERON, CLOETE, HEHER et

MLAMBO JJA
Date of Hearing
:
6 MAY 2005
Date of delivery
:
31 MAY 2005
Summary:      Defamation – animus injuriandi – qualified privilege of occasion –
admissibility of evidence to mitigate damages – arrest – costs of unopposed
application when respondent not first invited to submit to jurisdiction – orders at paras
19 and 32.

__________________________________________________________________________
JUDGMENT
__________________________________________________________________________

SCOTT JA/…

SCOTT JA:
[1] It is convenient to dispose of both of these appeals in one
judgment. The circumstances in which they arise are briefly as
follows. On 24 October 2002 Mr Pieter Jansen, an incola  of
Gauteng, applied for and was granted ex parte an order for the
arrest of Mr Michael Naylor to confirm the jurisdiction of the High
Court, Johannesburg, in an action for defamation which Jansen
proposed to institute against Naylor and one other. It is common
cause that Naylor is an Australian citizen and a peregrine of South
Africa. The order, which was granted by Coetzee J, provided that
the arrest would fall away upon Naylor furnishing security or
showing cause why the arrest should be set aside. The question of
the costs was ordered to stand over for later determination by the
trial court. The order was served on Naylor by the sheriff who was
accompanied
by
Jansen’s
attorney.
Arrangements
were
immediately made for Naylor to put up security, which he did, and
he was not taken into custody. On 4 November 2002 Jansen
instituted action for damages against Naylor as first defendant and
Atomaer (RSA) (Pty) Ltd as second defendant. The latter, as its
name suggests, is an incola of South Africa. The cause of action
was an alleged defamatory statement of and concerning Jansen

made by Naylor, acting in the course and scope of his employment
with the second defendant, at a meeting held at Vanderbijlpark,
Gauteng, on 2 October 2002.  In due course the trial was held
before Willis J who on 31 October 2003 gave judgment in favour of
Jansen with costs. The judgment, however, made no reference to
the costs of the ex parte application granted by Coetzee J which
had been ordered to stand over. Subsequently, on 20 February
2004, Naylor filed an answering affidavit to the application for the
arrest in which he alleged that there had been no need to incur the
costs of the application since, to the knowledge of Jansen, he was
a frequent visitor to South Africa and would have consented to the
jurisdiction of the court had he been asked to do so. On 3 May
2004 Willis J granted Naylor and the second defendant leave to
appeal to this court against his judgment in the defamation case. I
shall refer to this appeal as the ‘defamation appeal’. On the same
day he ordered Jansen to pay the costs of the ex parte application.
Because the judge considered the costs order to involve a
question on which there was no authority he granted Jansen leave
to appeal to this court against the order. He recorded in his
judgment that both parties were in agreement that leave should be
granted. I shall refer to this appeal as the ‘costs appeal’. A
somewhat unusual feature of the proceedings in this court was that

while Jansen was represented by counsel in the costs appeal (in
which he was the appellant) he was not represented in the
defamation appeal (in which he was the respondent) and instead
elected to abide the judgment of the court.
[2] It is convenient to deal first with the defamation appeal. Much
of the evidence adduced at the trial was common cause. A brief
summary will serve to assist in understanding the issues that
require determination. Some time prior to October 2002 Naylor
became the chief executive of an Australian company, Atomaer
Holdings (Pty) Ltd, which operates from Perth. He also became the
chief executive of its various subsidiaries, one of which was the
second defendant. The business of the group is process
technology and involves the development and commercial
application of inter alia processing units which are used in the
processing of substances such as minerals, metals and chemicals.
Until his suspension on 30 September 2002 and subsequent
dismissal, Jansen was a manager employed by the second
defendant and the local person in charge of the group’s operations
in South Africa. Earlier in September 2002 another of the group’s
managers expressed concern about certain of Jansen’s activities.
The group’s secretary was sent to South Africa to conduct an
investigation
and
Naylor
followed
shortly
thereafter.
The

investigation revealed that Jansen had breached his service
contract in various respects. It appeared that he had failed to
protect the group’s intellectual property rights properly and had
failed to conclude confidentiality agreements with various
manufacturing companies that had been engaged by the second
defendant to manufacture components which were regarded by
the group as a critical part of its intellectual property rights. More
importantly for present purposes, it was ascertained that Jansen
had a 45% interest in JFP Chemical Corporation CC (‘JFP’)  which
was one of the entities engaged to do manufacturing work for the
second defendant. This interest had not been disclosed to the
group as required by Jansen’s conditions of service. (In passing I
mention that Jansen was not a director of the second defendant.) It
appeared that regular payments had been made to JFP but these
had all been made against invoices submitted by JFP. There was
no suggestion that JFP had been paid for work it had not done or
services it had not rendered.
[3] A meeting was held on 30 September 2002 at which Jansen
was confronted with what the investigation had revealed. He was
less than frank regarding his interest in JFP. He denied it at first
but thereafter said he had relinquished it in July of the previous
year, which was not the case. He later conceded that he had

acquired the interest in JFP to supplement his income after the
group had declined to give him an increase in salary. As I have
indicated, he was suspended.
[4] There existed at that stage an on-going business relationship
between the second defendant and Iscor Ltd which had as its
object the joint development of a ‘gas scrubbing process’. This
involved not only research but also test work and trials which were
being conducted at Iscor’s facilities at Benmore Park. The parties
had previously entered into a confidentiality agreement but each
appeared to be somewhat wary of the other regarding their
respective
intellectual
property
rights
arising
out
of
the
development. Jansen had been involved in negotiations with Iscor
in connection with the gas scrubbing process since late 2000 and
had developed a good relationship with its management. Naylor
had met with representatives of Iscor in June 2002. Sometime in
September a meeting was arranged for 2 October 2002 to be held
at Iscor’s premises at Vanderbijlpark. Because of his suspension,
Jansen did not attend.
[5] The meeting was chaired by Mr Bezuidenhout who was
employed by Iscor as its engineering manager at Vanderbijlpark.
Some eight representatives of Iscor were present, including Mr Du
Toit who was responsible for taking minutes. Both Bezuidenhout

and Du Toit gave evidence at the trial. This evidence was by
agreement omitted from the record, presumably because it was no
longer disputed. The minutes of the meeting recorded the
following:
‘Mr Naylor informed the meeting that Mr Jansen of the South African local
office had been suspended from his position because he had misappropriated
Atomaer funds to a company of which he holds a directorship.’
Du Toit confirmed the correctness of the minutes. Bezuidenhout,
too, was adamant that the words attributed to Naylor in the
minutes had been uttered by him. Bezuidenhout said that Naylor’s
statement came as a ‘bombshell’ and had a profound effect on the
meeting.
[6] In their plea the defendants denied that the words
complained of (ie that Jansen had misappropriated Atomaer funds
to another company of which he was a director), had been uttered
by Naylor and in the alternative denied that they were defamatory
of him. Neither denial was maintained in this court and, in my view,
rightly so. The word ‘misappropriate’ is defined in the OED as
meaning: ‘to appropriate to wrong use; chiefly, to apply dishonestly
to one’s own use (money belonging to another)’. The Encarta
World English Dictionary gives the following definition: ‘to take,
especially money, dishonestly, or in order to use it for an improper

or illegal purpose’. In my view the use of the word ‘misappropriate’
in conjunction with the words ‘to a company of which he held a
directorship’ would be understood by the ordinary person hearing
the words to mean that Jansen had been stealing money from the
second defendant by diverting it to a company in which he had an
interest. This was clearly defamatory of Jansen.
[7] Proof that the words were uttered gives rise to two
presumptions: first, that the publication was unlawful and, second,
that the statement was made with the intention to defame. (See eg
Joubert v Venter 1985 (1) SA 654 (A) at 696A.)  It is now settled
that the onus on the defendant to rebut one or other presumption
is a full onus; it must be discharged on a balance of probabilities
(Mohamed v Jassiem 1996 (1) SA 673 (A) at 709H-I). I might just
add, at this stage, that the second defendant’s alleged liability was
based upon the principles of vicarious responsibility and that it was
common cause that, if Naylor was liable to Jansen, so was the
second defendant.
[8] The defendants denied in their plea both that the statement
complained of was unlawful and that it was made animo injuriandi.
Before considering the grounds upon which these denials were
based it is necessary to refer to a feature of the plea which has a
bearing on a ruling which the court a quo made regarding the

cross-examination of Jansen, to which I shall revert later, and also
on the question of Naylor’s state of mind. In para 6.1 of the plea it
was denied that Naylor had uttered the words alleged. In para 6.2
his version of what he said at the meeting is set out. It reads:
‘6.2
The first defendant stated at the meeting, referred to in paragraph 6 of

the particulars of claim, that:
6.2.1 the plaintiff had been suspended pending an investigation;
6.2.2 the Atomaer Group (hereinafter referred to as “Atomaer”) was
concerned about the arrangements taken (or lack of such
arrangements) by the plaintiff to protect confidential information
of Atomaer;
6.2.3 JFP Chemicals, Composite House, Model Haus and other
parties were in unauthorised possession of confidential
information belonging to Atomaer relating to the units for gas
scrubbing;
6.2.4 the plaintiff appeared to have interests in one of the entities
mentioned above.’
Thereafter in para 9.2 a number of defences were raised to rebut
the presumptions of unlawfulness and animus injuriandi in the
event of the court finding that what Naylor had said, on his own
version, was defamatory. The object was in effect to answer a
version which was not the one advanced by Jansen and on which
he relied to found his action.

[9] In para 9.3 of the plea various defences were advanced in
the alternative and in the event of it being found that the statement,
alleged (as recorded in the minutes) had been made by Naylor at
the meeting. These defences were absence of animus injuriandi,
truth and public benefit, qualified privilege, fair comment and the
so-called Bogoshi defence. (See National Media Ltd v Bogoshi
1998 (4) SA 1196 (SCA.)  In this court only two of these were
pursued, namely lack of animus injuriandi and qualified privilege.
The others were not, and rightly so. For reasons that will become
apparent later it is necessary to quote para 9.3 of the plea in full.
‘9.3
In the further alternative, and should this Honourable Court find that the
first defendant did make the statement complained of (which is denied), then
the defendants plead that:
9.3.1 The plaintiff, whilst managing the operations of the second defendant,
appointed JFP Chemicals CC (“JFP”) as a contractor to the second
defendant and caused payments to be made by the second defendant
to JFP and/or to a third party, Fred Mindszenty, on behalf of JFP.
9.3.2 At the time that the said appointment and payments were made, the
plaintiff was a member of JFP, Atomaer was unaware of the payments
made to or on behalf of JFP or of  the fact that the plaintiff was a
member of JFP  or of any other entity who received payment from the
second defendant.
9.3.3 The appointment of JFP and the said payments were made without the
necessary approval from Atomaer, without following established

company procedures and in circumstances that constituted a conflict
between the interests of the plaintiff and those of his employer.
9.3.4 Accordingly, and in acting as aforesaid, the plaintiff had acted
inappropriately and the statement complained of in any event
represents the truth. The plaintiff had placed himself in a position
where he could benefit and is likely to have benefited at the expense of
his employer and the statement complained of would have been
understood as such.
9.3.5 In all their dealings with Iscor, the defendants were motivated by an
intent to convince Iscor of the necessity of Atomaer’s actions
concerning the plaintiff; to protect and maintain the relationship with
Iscor and the defendants acted accordingly, without any intention to
defame the plaintiff and without any animus iniuriandi towards the
plaintiff.
9.3.6 All statements to Iscor concerning the suspension of the plaintiff’s
employment and the reasons therefor were made during the course of
negotiations between Atomaer Holdings and Iscor about a joint gas
scrubbing project, were made in the furtherance of Atomaer’s
legitimate business interests and, in particular, in an attempt to protect
Atomaer’s relationship with Iscor. The defendants refer to paragraphs
9.2.2 and 9.2.3 and pray that same be read as incorporated herein.
Accordingly, all such statements were relevant to the issues at hand
and were made in circumstances of qualified privilege.
9.3.7 In any event, the statement represents the truth in the interest of those
persons attending the meeting and accordingly is truth in the public

interest. In the alternative, the statement represents a comment
concerning the suspension of the plaintiff’s employment; the statement
is fair in the circumstances and the facts on which the statement
complained of are based, are true.
9.3.8 The first defendant did not make the statement complained of
recklessly, without regard to the truth thereof. The first defendant
based the statements made by him about the suspension of the plaintiff
from his employment, on facts uncovered about the plaintiff’s
involvement with JFP and the activities of the latter and the plaintiff.
The first defendant had reason to believe that the plaintiff had or may
have caused JFP to be unduly advantaged, as a result of the plaintiff’s
involvement with that entity. Accordingly, and in light of the content of
paragraphs 9.3.1 to 9.3.6, the publication of the statement was
objectively reasonable.’
[10] In his evidence Naylor dealt in detail with Jansen’s conduct
and the business relationship that existed between the Atomaer
group and Iscor. On the issue of what he had said at the meeting
concerning Jansen, his evidence, however, was equivocal and
less than satisfactory. He repeated the version set out in para 6.2
of the plea quoted above and insisted that he had no recollection
of uttering the words recorded in the minutes. He said it had never
entered his head that Jansen had stolen funds but nonetheless he
could not after a lapse of 12 months categorically deny that he had
uttered the words in question. I might mention that in a letter

written soon after the event on 20 October 2002 by the defendants’
attorney in response to Jansen’s letter of demand, it was alleged
that Naylor had merely informed the meeting that Jansen had been
suspended pending an investigation but ‘did not verbalise the
reasons for the suspension or pending investigation’. This was
inconsistent with both Naylor’s evidence and the version pleaded.
His explanation that he did not have his notes with him and that he
had other things on his mind when he gave instructions to his
attorney is hardly persuasive and does not reflect well upon his
credibility. Naylor did not simply rely on his inability to recall having
uttered the defamatory words. He went further: he insisted that
even if he had said what he was alleged to have said, the meaning
attributed to the words was not what he had intended and that it
had never been his intention to suggest that Jansen had been a
party to the theft of money. In the absence of some clear indication
to the contrary, it will be inferred that a person making a verbal
statement intends it to have the meaning that persons hearing it
will ordinarily attribute to it. In the present case, of course, Naylor
was faced with a full onus of negativing animus injuriandi. But even
if he had inadvertently expressed himself incorrectly, the reaction
from the representatives of Iscor would immediately have brought
this to his attention. He readily conceded that his announcement

had had a profound effect on the meeting. Indeed, Bezuidenhout
of Iscor understood Naylor’s announcement to mean that Jansen
had in effect stolen money and he immediately responded
accordingly. (He subsequently phoned Jansen to ask him ‘hoekom
het jy gesteel’ and to inform him that he was persona non grata at
Iscor.) In these circumstances, Naylor’s bald denial that he
intended to say what he in fact said cannot rebut the inference of
animus injuriandi, far less the presumption. In the course of cross-
examination he proffered the explanation that it was only after the
proceedings commenced that he learned that the word
‘misappropriate’ ordinarily implied theft. The court a quo observed
Naylor to have presented himself as a highly intelligent and
experienced businessman fluent in English, and disbelieved this
explanation. I can see no reason to differ. It follows that the
contention that Naylor lacked the necessary animus injuriandi must
be rejected.
[11] I turn to the defence of qualified privilege. Given the
relationship between Naylor, acting on behalf of the second
defendant, and Iscor at the time, there can be little doubt that the
occasion of the meeting on 2 October 2002 was a privileged one.
Viewed objectively, each party to the negotiations enjoyed a right
or legitimate interest to make statements to, and receive

statements from, the other. Furthermore, an explanation for
Jansen’s absence from the meeting and the circumstances relating
thereto would clearly have been ‘germane to the occasion’. (See
De Waal v Ziervogel 1938 AD 112 at 122-123.) Indeed, the
evidence established that Jansen had been involved in
negotiations on behalf of the second defendant with Iscor for some
while and enjoyed the confidence of Iscor’s management. His
absence from the meeting called for explanation. Whether the
statements were true or not would have no bearing on whether
they were germane to the occasion. But that does not mean that
the truth or otherwise of the statement in question would be
irrelevant. The privilege is a qualified one. In the event of it being
shown that the statement was made with knowledge of its
untruthfulness, the inference that would arise, in the absence of
any indication to the contrary, would be that the statement was
actuated by malice. As observed by Corbett JA in Borgin v De
Villiers and another 1980 (3) SA 556 (A) at 578H:
‘The defence of qualified privilege is, however, not concerned with the
truthfulness or otherwise of the publication, though proof that the defendant
did not believe that the facts stated by him were true may give rise to the
inference that he was actuated by express malice.’

[12] Jansen filed a replication alleging malice. The question in
issue is whether on all the evidence malice on the part of Naylor
was established on a balance of probabilities. I may mention that
the court a quo did not consider the defence of qualified privilege
but in passing and in a different context indicated that it was
prepared to ‘accept’ that Naylor did not act with malice. However,
no reasons were advanced for this acceptance.
[13] It is not in dispute that Jansen breached the conditions of his
employment and that this included utilising the services of an entity
in which he had an undisclosed interest. The latter conduct clearly
involved a breach of the good faith he owed to his employer and to
this extent was dishonest. But this conduct fell far short of actually
stealing money from his employer, whether by diverting it to
another company in which he had an interest or otherwise. This
much was acknowledged by Naylor. He testified that he had no
justification for accusing Jansen of stealing. The necessary
implication is that a statement of fact to that effect would have
been to his knowledge untrue. But once it is accepted, as I have,
that Naylor uttered the words in question knowingly, ie with
appreciation of what he was saying, the inference is inescapable
that he knew that what he was saying was untrue. In the absence
of any indication to the contrary – and, save for Naylor’s bald

denial, there is none – one is driven to the conclusion that he
made the statement in question knowing it to be untrue and with
the object of injuring Jansen in his reputation or possibly to ensure
that the latter’s good relationship with Iscor was terminated. This
amounts to malice. See Basner v Trigger 1946 AD 83 at 105. It
follows that this defence too must fail.
[14] There
is
however
a
further
aspect
that
requires
consideration. In the course of Jansen’s evidence, the court a quo
made a ruling disallowing cross-examination on the matter of
Jansen’s breach of his terms of employment. The reasoning of the
learned judge, in short, was that this was irrelevant both to the
case made out by Jansen and to the defendants’ response to that
case, which was a denial that the words complained of had been
uttered. It was argued in this court that the ruling was incorrect
because the cross-examination was relevant on two grounds, the
one being in respect of the alternative defences raised in para 9.3
of the plea (quoted in para 9 above) and the other being in respect
of the quantum of Jansen’s damages. I mention at this stage that
Naylor was permitted to testify at some length on the issue of
Jansen’s breach of his employment conditions and in doing so he
covered all the factual allegations contained in para 9.3 of the plea.
If these allegations are accepted (as I have for the purpose of the

appeal), the refusal to permit cross-examination can result in no
prejudice as far as the defences raised in para 9.3 are concerned.
But different considerations apply to the question of quantum. It is
clear from both the judge’s ruling and subsequent judgment that he
did not take Jansen’s wrongful conduct in relation to his employer
into account when awarding damages. It follows that if the
evidence as to the breach of his conditions of employment was
admissible for this purpose the court a quo misdirected itself and
for this reason alone the damages determined by it would have to
be reconsidered.
[15] It has long been established that while evidence of a
plaintiff’s general bad character is admissible to reduce the
damages that may be awarded, evidence of particular acts of
misconduct is not. But the rule does not operate to exclude
evidence in a plea of justification that falls short of completely
justifying the defamatory statement but which is sufficiently related
to it to mitigate its impact. In Sutter v Brown 1926 AD 155 at 172
evidence was held admissible in mitigation of damages to
establish ‘some severable and substantial portion, though not the
whole of the defamatory matter’. But the exception to the general
rule is not limited to evidence that justifies a portion of the
defamatory matter; it is sufficient if the circumstances sought to be

proved are directly related to, ‘or linked up’ with, the words
complained of. See Walton v Cohn 1947 (2) SA 225 (N) at 231;
Geyser v Pont 1968 (4) SA 67 (WLD) 78A-B.
[16] In the present case the factual allegations contained in para
9.3 of the plea and confirmed by Naylor in evidence would no
doubt justify what he contended he had said at the meeting. But
they fall short of justifying what he in fact said. Nonetheless, the
allegations (and the evidence) deal with the very conduct on the
part of Jansen that gave rise to the defamatory words being
spoken by Naylor and although Jansen’s conduct amounted to
something less than theft, namely a breach of the duty of good
faith that he owed to the second defendant, that conduct, like theft,
nonetheless involved dishonesty. For these reasons there is in my
view a direct link in this case between the making of the
defamatory statement and Jansen’s conduct. I, therefore conclude
that the court a quo erred in not taking into account Naylor’s
evidence in support of the allegations in para 9.3 of the plea when
determining the quantum of damages.
[17] The order ultimately granted by the learned judge was
somewhat unusual. He ordered the defendants to pay the plaintiff
damages in the sum of R30 000 together with interest and costs,
but directed that the order was only to take effect in the event of

the defendants failing to send a formal apology (which the judge
formulated) to the plaintiff and the senior executive officer of Iscor
within 30 days of the order. In the event of the defendants making
the apology they were ordered to pay costs on the attorney-and-
client scale. There is no cross-appeal by Jansen and accordingly
no basis upon which this court could properly interfere with that
part of the order which afforded the defendants an option of
tendering an apology; nor was argument presented to us on the
appropriateness or otherwise of such an order. I shall therefore
refrain from commenting upon it. However, in view of what has
been said above, it follows that the award of R30 000 must be
reduced. In all the circumstances, an amount of R15 000 strikes
me as fair and reasonable and I propose to reduce the award
accordingly.
[18] To sum up, none of the defences raised by the defendants
can be sustained and to this extent the appeal must fail. The
limited success achieved on appeal, namely by the reduction of
the amount of R30 000 to R15 000, does not in my view justify an
order of costs in favour of the defendants. Jansen, it will be
recalled, abided the judgment of this court.
[19] In the result the following order is made in the defamation
appeal:

The appeal succeeds to the limited extent that the amount of
R30 000 referred to in paragraph 1 of the order of the court a quo
is reduced to R15 000. Save as aforesaid, the appeal is dismissed.
[20] I turn to the costs appeal which, it will be recalled, is
Jansen’s appeal against the order made by Willis J that he pay the
costs of the application for the arrest of Naylor to confirm the
jurisdiction of the court a quo. (For convenience I shall continue to
refer to the parties as before.) It is necessary at the outset to
observe that the validity of an arrest (as opposed to an attachment
of property) to found or confirm jurisdiction is not in issue. In
modern times the arrest of a person for this purpose has in general
become no more than a technique to obtain security. As happened
in the present case, the procedure adopted is to negotiate the
issue of security immediately the defendant is arrested so that he
or she is not taken into custody. Whether this will survive
constitutional scrutiny is not an issue we are called upon to decide.
It is also not in issue that, in the absence of a submission to the
jurisdiction of the court, an arrest or attachment was necessary to
confirm the court a quo’s jurisdiction to entertain the defamation
action against Naylor. Indeed, it is well-established that even if a
plaintiff is an incola and there exists a recognised ground of
jurisdiction a court will not exercise jurisdiction over a peregrine

defendant in an action sounding in money unless the defendant
has first been arrested or his or her property attached to confirm
the court’s jurisdiction or the defendant has submitted to the
jurisdiction of the court.  (See eg Ewing McDonald & Co Ltd v M &
M Products Co 1991 (1) SA 252 (A) at 258D-G. As to the
circumstances in which a submission to jurisdiction will suffice, see
Hay Management Consultants (Pty) Ltd v P3 Management
Consultants (Pty) Ltd 2005 (2) SA 522 (SCA).)
[21] In the present case Naylor in his answering affidavit (filed
after judgment had been delivered in the defamation case) insisted
that had he been requested to submit to the jurisdiction of the court
he would have done so. He added that it was known to Jansen
that by reason of his business interests in  South Africa he was a
regular visitor to this country and that Jansen would have known
that there was no question of him ‘absconding from or fleeing
South Africa’. The question in issue in this appeal is therefore
whether in such circumstances a plaintiff who is ultimately
successful in the main action will forfeit his (or her) right to the
costs of the application for the arrest or attachment if he fails first
to afford the peregrine the opportunity of consenting to the
jurisdiction of the court before proceeding for such an order.

[22] Ms Robinson who argued the costs appeal on behalf of
Naylor contended in limine that this court, in the exercise of its
discretion in terms of s 21 A of the Supreme Court Act 59 of 1959,
should decline to entertain the appeal as the result would have no
practical effect save in respect of costs which, in terms of the
section, are to be left out of account save under ‘exceptional
circumstances’. I cannot agree. As will appear from what follows,
the circumstances in the present case are exceptional as the order
granted by the court a quo involves not only a departure from a
practice that is well-established but also an inroad in what has
hitherto always been regarded as a substantive right enjoyed by
an incola. I should add that the point taken is somewhat surprising
as it appears from the judgment of the court a quo granting leave
to appeal that both counsel were in agreement not only that leave
should be granted but that it should be granted to this court.
[23] It is a generally accepted practice in applications for an
attachment or arrest to found or confirm jurisdiction for the order to
be sought ex parte. See Pollak on Jurisdiction 2 ed at 85 and 88.
The order so granted either takes the form of a  rule nisi or
provision is made in the order entitling the respondent on notice to
the applicant to apply to have the order set aside as a matter of
urgency. In either event, the onus of justifying the arrest or

attachment remains on the applicant. See Anderson and Coltman
Ltd v Universal Trading Co 1948 (1) SA 1277 (W) at 1283-4.
[24] The primary reason for the order being granted ex parte is
undoubtedly the real risk that if the peregrine receives notice of the
application he may leave the country before the matter has been
resolved. In that event the incola would either have to follow him to
his country of domicile, or wait for him to return to South Africa, if
he ever did.  It would generally speaking not be an easy matter for
an incola applicant to predict with any degree of certainty what a
peregrine respondent would do if given notice of the impending
application. On the other hand, it is easy enough for a peregrine
respondent, ex post facto and once the arrest or attachment has
been put into effect, to profess that he would have submitted to the
jurisdiction of the court had he been asked. Indeed, in the present
case a letter of demand threatening proceedings was sent to
Naylor. He consulted an attorney who wrote back advising that any
proceedings would be ‘strenuously’ opposed. There was no
mention of a submission to the jurisdiction of a South African court
until after the order had been served.
[25] There is also another important but less obvious reason for
proceeding ex parte. If a peregrine submits to the jurisdiction of the
court in response to a threat, whether express or implied, that if he

fails to do so he may be arrested or have his goods attached, there
is always the danger that a judgment thereafter given against him
may not be recognised internationally. The reason is that the
peregrine may be able to contend in some other forum that the
submission was not voluntary as it was induced by the threat of an
arrest or attachment which in that forum is regarded as unlawful.
See Blue Continent Products (Pty) Ltd v Foroya Banki PF 1993 (4)
SA 563 (C) at 574F-G.
[26] It is important to bear in mind that although an attachment (or
arrest) and a submission to the jurisdiction both have the effect of
founding or confirming jurisdiction, there are significant differences
between the two. An attachment or arrest serves also to provide
an incola with property or security in South Africa against which he
can execute the judgment in the event of his action being
successful. (See Yorigami Maritime Construction Co Ltd v Nissho-
Iwai Co Ltd 1977 (4) SA 682 (C) at 697E-698D;  MT Argun 2001
(3) 1230 (SCA) at 1244E-F.) A submission, on the other hand,
does no more than found or confirm jurisdiction so that once an
incola obtains judgment he is obliged to pursue the peregrine to
the latter’s country of domicile and there seek to have the
judgment enforced. Unless, therefore, the security obtainable or
the value of the property available for attachment is substantially

less than the value of the claim, an incola would normally prefer to
attach the property or the person of the peregrine to provide
security for his claim. (Cf Jamieson v Sabingo 2002 (4) SA 49 SCA
para 25 at 58G.)
[27] The procedures relating to attachments and arrests were
developed by the tribunals of Holland to enable incolae to proceed
against peregrines in the jurisdiction instead of being compelled to
follow their debtors to domiciles abroad.  (See The Owners, Master
and Crew of the SS Humber v Owners and Master of the SS
Answald 1912 AD 546 at 555.) If a peregrine submits to the
jurisdiction prior to an order being granted for the attachment of his
person or property an incola will lose his right to pursue the latter
procedure; he may even lose it if the submission is made after the
order is granted but before it is put into effect. (See Jamieson v
Sabingo, supra, para 29 at 59B-E.) But until there has been a
submission an incola is entitled as of right to seek an order of
attachment or arrest with the concomitant benefit of obtaining
security for his claim. A court to which the application is made has
no discretion to refuse it once the requirements for an order are
met. In Longman Distillers Ltd v Drop Inn Group of Liquor
Supermarkets (Pty) Ltd 1990 (2) SA 906 (A) at 914E-G Nicholas
AJA explained the situation as follows:

‘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 the
attachment ad fundandam of the property of the peregrine respondent
(defendant). It has no discretion (Pollak The South African Law of Jurisdiction
at 64, citing Lecomte v W and B Syndicate of Madagascar 1905 TS 696 at
702). The Court will not inquire into the merits or whether the Court is a
convenient forum in which to bring the action (Pollak (ibid)). Nor, it is
conceived, will the Court inquire whether it is “fair” in the circumstances for an
attachment order to be granted.’’
(See also Weissglass NO v Savonnerie Establishment 1992 (3) SA
928 (A) at 937C-F.)  It follows that an applicant for an order of
attachment or arrest to found or confirm jurisdiction is under no
obligation first to invite the respondent peregrine to submit to the
jurisdiction, nor does the latter enjoy a right to be afforded an
opportunity to submit to the jurisdiction before the applicant seeks
an arrest or attachment order. (See Associated Marine Engineers
(Pty) Ltd v Foroya Banki PF  1994 (4) SA 676 (C) at 688G-J.)
[28]   In view of the aforegoing and because the ex parte
application for the attachment of the property of a peregrine (or his
arrest) is a preliminary step in the proceedings against him, the
costs of the application, if unopposed, are normally made costs in
the cause of the main action. (If opposed the costs order would

normally follow the result of the application.) The reasoning of
Willis J for not making a similar order was shortly this. It was not
permissible, he said, to ‘peer behind the allegation’ of Naylor that if
requested he would have submitted to the jurisdiction of the court;
therefore it had to be accepted that had Jansen invited Naylor to
submit there would have been no need to bring the application.
Accordingly, so the reasoning went, Jansen was not entitled to his
costs of the application in the same way as a plaintiff who receives
payment against service of a summons would not be entitled to his
costs if he omits to send a letter of demand. After referring to
Havenga v Lotter 1912 TPD 395 and other cases to the same
effect regarding the question of costs where a plaintiff omits to
send a letter of demand, the judge said:
‘Ms Robinson argued convincingly, in my view, that the same principle must
apply in matters such as this. In other words, although the applicant was
entitled as of right to seek an order for the attachment of the person of
Michael Naylor in order to confirm jurisdiction, if it subsequently emerges that
this course of action was unnecessary, the applicant, although entitled to the
relief which he sought, would not be entitled to the costs of the application.
There is no authority directly in point, so I have been advised by counsel for
both sides, and accordingly I believe it appropriate to extend this general
principle to a matter such as this.’

[29]  I cannot agree. The general principle to which the judge
refers is in my view inapplicable to an application to attach the
property of a peregrine (or to arrest him to obtain security).  First,
there is always the risk of the peregrine respondent leaving the
country without submitting to the jurisdiction. As I have indicated,
the object of the arrest and attachment procedure is to assist an
incola. Requiring the incola to guess what the peregrine will do if
invited to submit could serve to undermine the very purpose for
which that procedure was developed. Second, the application is
not for an order directing the peregrine to submit to the jurisdiction
(which is what it is suggested an applicant must first invite the
respondent to do). It is an application for something different,
namely for an order for the attachment of the property or person of
the peregrine. As I have indicated, that is an order to which an
incola is entitled as of right and which he loses only when the
peregrine submits to the jurisdiction. An attachment or arrest will
ordinarily better protect the rights of an incola. I can see no reason
why he should be required first to tender a relief that affords less
protection than the one he seeks.
[30] To return to the present case, Jansen was entitled as of right
to an order for the arrest of Naylor to confirm jurisdiction. In
seeking the order ex parte he was following a well-established

practice. That order carried with it the advantage that the security
put up by Naylor would be available to satisfy a judgment granted
in favour of Jansen in the defamation action. Merely because
Naylor may have submitted to the jurisdiction had he been invited
to do so placed no obligation on Jansen to apprise him of his right
to do so. Jansen understandably wished to have the benefit of
security; he did not want to have to pursue Naylor to Australia and
seek, possibly with opposition, to have the order implemented
there. I can see no reason why Jansen should have been deprived
of the costs of the application for failing to invite Naylor to tender a
relief which, as I have said, was different and less advantageous to
Jansen than the relief he was seeking and to which he was
entitled.
[31] In my view, therefore, the judge in the court a quo
misdirected himself in his approach to the question of costs.
Having found for Jansen in the main action there was no
justification for not ordering Naylor to pay the costs of the arrest
application.
[32] The costs appeal is therefore upheld with costs. The order of
the court a quo as to costs in relation to the arrest application is set
aside and the following order is substituted:

‘The respondent (Naylor) is ordered to pay the costs of the

applicant (Jansen).’

_____________

D G SCOTT

JUDGE OF APPEAL

CONCUR:

CAMERON
JA
CLOETE

JA
HEHER

JA
MLAMBO
JA