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High Courts only have jurisdiction over matters when the nature of the claim falls within the statutory jurisdiction of the High Court specifically and when the amount of a claim exceeds the value of R100 000, 00. The specific High Court jurisdiction will depend upon where the cause of action (that which brought about the dispute, i.e. where the contract was signed, there the negligence occurred etc.) arose or whether the defendant resides within the proximity of that particular High Court. Furthermore the High Court only has jurisdiction over citizens of South Africa unless jurisdiction is established and founded in a High Court with regards to a foreign person or entity.

 

It follows that when a foreign person or entity, which does not normally fall under the court’s jurisdiction, needs to be sued in South Africa, that person or entity either needs to agree to submit to the jurisdiction of the court, or jurisdiction has to be founded in some other way.

 

Our common law recognized two ways in which jurisdiction could be so founded – one, a plaintiff could bring a application to attach certain property of the foreign person or company, or two, the plaintiff could bring an application for the arrest of a foreign person.

 

This common law principle of necessity of attachment or arrest to found jurisdiction over a foreign defendant was implemented through Section 19(1) of the Supreme Court Act 59 of 1959, which reads:

 

(c) Subject to the provisions of section 28 and the powers granted under section 4 of the Admiralty Jurisdiction Regulation Act, 1983 (Act 105 of 1983), any High Court may-

(i)         issue an order for attachment of property or arrest of a person to confirm jurisdiction or order the arrest suspectus de fuga also where the property or person concerned is outside its area of jurisdiction but within the Republic: Provided that the cause of action arose within its area of jurisdiction; and

(ii)        where the plaintiff is resident or domiciled within its area of jurisdiction, but the cause of action arose outside its area of jurisdiction and the property or person concerned is outside its area of jurisdiction, issue an order for attachment of property or arrest of a person to found jurisdiction regardless of where in the Republic the property or person is situated.

 

The significance of this case rests in the fact that an arrest under common law for the purposes of founding or establishing jurisdiction was abolished and that S 19 (1) (C) of the Supreme Court Act 39 of 1959 was made redundant. The Supreme Court of Appeal used its inherent power, as described in Section 173 of the Constitution, to develop the common law, taking in to account the interests of justice, and created substitute practices other than arrest.

 

This case involved a claim for damages in delict. The Appellant, a South African company with office in the area of jurisdiction of the High Court, applied to the High Court for the order of arrest of the two respondents, who were citizens of Australia (residing and domiciled in Australia), to found or confirm jurisdiction.

 

The appellant had failed to attach the property belonging to the respondents which at one stage was available for attachment. The respondents refused to submit to the jurisdiction of the High Court. The Respondents apposed the application on two grounds, namely; that there was no prima facie case and that foreign nationals, whilst in South Africa, enjoyed the protection of the Constitution and their arrest would be contrary to the Bill of Rights. For the purposes of the appeal, the court considered only the latter contention.

 

The Minister of Justice was joined to the proceedings based on the constitutional challenge to S 19 (1) (c) of the Supreme Court Act 39 of 1959. The Minister’s submissions were as follows: that the legislation was not unconstitutional since the above provision was enacted in order to give effect to the rights enshrined in S34 of the Constitution, namely that of S34 (access to courts); that the courts would then have the discretion to balance the rights of the parties and grant an application accordingly; and that the act spoke merely of ‘arrest’ and not actual detention.

 

The Court stated that the actual jurisdictional purpose of attachment and arrest was to enable the court to hand-down an effective judgment.

 

At first, the court considered whether the arrest was an infringement on the rights to the freedom and security of the person. It disagreed that the arrest in terms of the act was mere arrest and did not result in actual detention. It stated that there is no legal obligation on a foreigner to either consent to the jurisdiction of a South African court or to provide a monetary basis to avoid the arrest. The legislation was decided to only have been contemplated for actual detention and thus aimed at limiting the defendant’s liberty. The court had to consider, at this stage, whether there was a ‘just cause’ for this limitation.

 

In doing so, they distinguished between the attachment of property and arrest. It was established that in the former there was no infringement of constitutional rights as the property would serve to secure a payment of any judgment. Arrest however, would not achieve this. It would only serve to coerce the defendant to make payment or to provide security in order to prevent imprisonment and thus guarantee liberty. It was decided that there was no ‘just cause’ in arresting the defendant for these purposes.

 

The court then performed a S36 analysis. Such an analysis serves to determine that despite the fact that there might exist a violation of a constitutional right, it may still be permissible i.e. the right may be limited, after a thorough application of the particular matter within the particular criteria under S36 of the Constitution. One of these criteria is whether or not there are less restrictive means to attain the purpose of the law (to found or confirm jurisdiction in this context) without the violation of a constitutional right. 

 

The Court stated that there were indeed less restrictive means to establish jurisdiction and that the common law needed to be developed to provide alternative possibilities to jurisdictional arrest, especially where attachment of property is not possible and that substitute practices, other than arrest are needed.

 

As a result, the court declared the abolition of the common law rule of arrest and that should attachment not be possible, then a “… South African High Court will have jurisdiction of the Summons is served on the defendant while in South Africa and that there is a sufficient connection between the suit and the area of jurisdiction of the court concerned, so that the disposal of the case by the court is appropriate and convenient.”

 

Accordingly S19 (1) (c) was made redundant and was ordered to be removed by legislative amendment and that until then the section must be read down.

 

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