Jamieson, Neil v Sabingo, Amindo Cesar

The appellant (Jamieson), an incola of the Witwatersrand Local Division, sought to sue the respondent (Sabingo), an out-and-out peregrinus of South Africa residing in Angola, for breach of contract. The contract related to the sale and installation of a water purification system, power generator, and vibrating compact roller at a hotel in Luanda, Angola. Although initially alleged to be an oral contract concluded in Luanda, it was conceded that the contract was concluded in Johannesburg when the appellant received the respondent's facsimile transmission accepting his quotation. On 13 July 1999, Malan J granted an ex parte order attaching the respondent's right, title and interest in a judgment the respondent had obtained against Madiba Air (Pty) Ltd, to confirm jurisdiction. On 19 August 1999, before the attachment was executed (which only occurred on 7 September 1999), the respondent's attorneys wrote to the appellant's attorneys consenting to the jurisdiction of the Witwatersrand Local Division and appointing a domicilium citandi et executandi in South Africa. Willis J discharged the rule nisi on the basis that the respondent's voluntary submission to jurisdiction made the attachment unnecessary, relying on the American Flag decision. Willis J granted leave to appeal.

• Whether a unilateral submission to jurisdiction by a peregrinus defendant after an attachment order is granted but before execution thereof renders the attachment unnecessary
• Whether a distinction exists between bilateral and unilateral submissions to jurisdiction for purposes of avoiding attachment to confirm jurisdiction
• Whether the interpretation of the 'Veneta dictum' in the American Flag case was correct (not decided)
• Whether voluntary submission to jurisdiction after attachment proceedings have commenced can deprive a plaintiff of the right to attach property to confirm jurisdiction

The appeal was dismissed with costs, including costs occasioned by the employment of two counsel.

The binding legal principles established are: (1) There is no difference in principle between bilateral and unilateral submissions to jurisdiction for purposes of rendering attachment unnecessary - both types of submission make a judgment internationally enforceable and binding on the defendant's entire property, thereby achieving an effective judgment without need for attachment. (2) The purpose of attachment to found or confirm jurisdiction is to enable the court to pronounce a judgment 'which will not be void of result'. (3) Where a defendant submits to jurisdiction after an attachment order is granted but before the attachment is executed, the submission is effective to render the attachment unnecessary, as the submission achieves the purpose that attachment would serve (ensuring an effective, enforceable judgment). (4) A plaintiff has no absolute 'right' to attachment where voluntary submission to jurisdiction has occurred, because the rationale for attachment (ensuring an effective judgment) no longer applies. (5) Contracts concluded by facsimile transmission are governed by the receipt theory - the contract is concluded when and where the acceptance is communicated and received by the offeror.

The court expressly declined to determine whether the American Flag decision correctly interpreted and criticized the 'Veneta dictum' from Veneta Mineraria Spa v Carolina Collieries, noting that any observations on this point would be obiter and that the issue was not argued due to the concession that a causa jurisdictionis existed. The court also noted, without deciding, that there are conflicting decisions on whether a submission to jurisdiction given after attachment has been executed can lead to release of the attached property, citing Elscint (Pty) Ltd and the Blue Continent case (suggesting it cannot) versus Small Business Development Corporation and Ghomezi-Bozorg cases (suggesting it might). The court stated it was not called upon to decide this issue as no arguments were addressed on the point. The court also observed, without deciding, that different considerations might apply if the submission was not voluntary or if a judgment based thereon would not be recognized internationally.

This case clarifies important principles regarding jurisdiction and attachment in South African civil procedure, particularly in cases involving peregrinus defendants. It confirms that voluntary submission to jurisdiction, whether bilateral or unilateral, renders attachment to confirm jurisdiction unnecessary because such submission makes any resulting judgment internationally enforceable. The case establishes that the timing of submission is significant: submission given after an attachment order but before execution is effective to prevent the attachment from being carried out. It reinforces the principle that attachment exists not as a right of the plaintiff, but as a mechanism to ensure effective judgments. The case also demonstrates the application of the receipt theory for contracts concluded by instantaneous communication methods like facsimile transmission. The judgment provides important guidance on the interaction between attachment proceedings and voluntary submission to jurisdiction in the context of international commercial litigation.