REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 20758/2013
In the matter between:
CHANINE ELIZABETH SWANEPOEL Plaintiff
and
DEPUY INTERNATIONAL LIMITED Defendant
Coram: Wille, J
Heard: 25 October 2024
Delivered: 21 January 2025
JUDGMENT
WILLE, J:
INTRODUCTION
2
[1] This is a trial about an interlocutory issue concerning the jurisdiction of this
court. The parties will be referred to as cited in the pending main action
proceedings. The defendant filed a special plea challenging the jurisdiction of this
court.1
[2] The plaintiff underwent hip replacement surgery more than a decade ago , and
during this process, a specified hip replacement system was implanted into her right
hip.2
[3] It is averred that the defendant manufactured the system that was implanted
into her hip . It is alleged that the system was defective because it had certain latent
defects.3
[4] It is further alleged that the defendant was negligent, among other things, by
ignoring specific warnings about these alleged latent defects in the system and
failing to withdraw the system from the marketplace before the hip replacement
surgery was perfor med on the plaintiff.4
[5] Further, it is advanced that as a direct result of this negligence on the
defendant's par t, the plaintiff suffered damages, and she s till suffer ing these
damages in a not insignificant amount .5
[6] The plaintiff’s action is in delict and is essentially a product -liability claim. Th e
defendant concedes this much . The defen dant filed a special plea on jurisdiction
and pleaded over on the merits.6
[7] It was alleged that if the special plea succeeded , it w ould be dispositive of the
entire action. This is the reason for separating the jurisdiction issue from the hearing
of the main action proceedings.7
1 The defendant submitted that this court had no jurisdiction to determine the action proceedings,
2 This system was known as the ‘ASR Hip Resurfacing System ’ (the “system ”).
3 The defendant recalled the system because of latent defects.
4 The system implanted into the plaintiff had to subsequently be removed from the plaintiff.
5 The plaintiff alleges damages in the sum of R 8 041 376,15.
6 The defendant took the position that this court did not have jurisdiction to determine this dispute.
3
[8] Since the launch of the application for a separation, the plaintiff filed a notice
of intention to amend its claims against the defendant.8
[9] The defendant did not oppose the amendments sough t, which have since
formally been effected.9
BACKGROUND AND CONTEXT
[10] The plaintiff instituted these proceedings more than a decade ago, seeking
damages from the defendant . A medical doctor was initially ci ted as the second
defendant , but the action against him was subsequently withdrawn, and the action
continued against the current defendant only.10
[11] As alluded to earlier, the defendant filed a special plea and plea ded over on
the merits about ten years ago . The essence of the special plea was that this court
did not have the requ isite jurisdiction over the defendant , which was cited as a
foreign company , registered abroad.11
[12] By agreement and by order of this court, the special plea was separated out
for prior determination . The defendant’s special plea alleges that this court lacks the
requisite jurisdiction to entertain the plaintiff’s damages claim.12
[13] The core complaint by the defendant is that the plaintiff failed to attach
property to ‘found or confirm ’ this court’s jurisdiction over the foreign defendant
company and that this is fatal to the plaintiff’s action from a jurisdictional point of
view. Thus, it is alleged that the plaintiff is non-suited as a consequence .13
7 The parties agreed that the special plea be adjudicated first.
8 The plaintiff filed a number of amendments relating to the citation of the defendant.
9 The proposed amendments have since been formally effected in terms of the court rules.
10 The proceedings against the medical practitioner were resolved.
11 The plaintiff’s amendments sought to rectify this alleged jurisdictional issue.
12 By agreement an order was granted by the court on 13 June 2023.
13 The defendant pleaded that the defendant could not be regarded as a for eign company conducting
business in this country following section 23(2) of Act 71 of 2008 (the ‘Companies Act’).
4
[14] Firstly, I must consider and determine w hether or not the defendant submitted
to the jurisdiction of this court. If that question is a nswered in the plaintiff’s favour,
the special plea must be dismissed. Secondly, i f there was no submission to
jurisdiction , I must determine whether or not the plaintiff’s failure to attach property to
found or confirm jurisdiction is fatal to her action . Concerning the second issue, i t is
the plaintiff’s case that even if there was no submission to this court’s jurisdiction,
this court is invited to apply a flexible approach to jurisdiction such that an
attachment of property t o found or confirm jurisdi ction , in this case, is no longer an
absolute jurisdictional requirement .14
[15] The court was urged to consider issues of appropriateness and convenience ,
taking into account the circumstances of this case. The plaintiff says this because
the defendant was conducting business within the territory of this court when the
summons was served, which she says (on its own) is sufficient to clothe this court
with jurisdiction to hear and d etermine these proceedings.15
[16] Finally, and in the alternative, the plaintiff argues that the common law rule
necessitating an attachment to found or confirm jurisdiction is incompatible with our
current constitutional values and that I have a constitutional duty to develop the
common l aw to accord with th ese values.16
THE PLEADINGS
THE PLAINTIFF’S CLAIMS
[17] The plaintiff’s particulars of claim (as amended ) reflect ed that the plaintiff i s a
veterinary nurse and she is a resident of this country. As far as the defendant is
concerned, the following:
(a) The defendant is DePuy Orthopaedics Inc ( ‘DPO’), DePuy (Ireland)
Limited ( ‘DPI’), and Johnson & Johnson Inc ( ‘J&J’), all foreign
14 The court was asked to develop the common law (if required).
15 The plaintiff says this is a factual issue to be determined in her favour.
16 This, if I find for the defendant on the other jurisdictional shields raised by the defendant.
5
companies as defined in section 1 of the Companies Act ( and that was
the case as at 20 January 2014 ).
(b) The defendant and/or D PO and/or D PI and/or J ohnson & Johnson
Medical (Pty) Limited (‘J&JM’) and/or Orthomedics (Pty) Limited
(‘OPY’) and/or Orthomedics Management Company (Pty) Limited
(‘OMC ’) were subsidiary companies of J &J and/or one or more were
related to the defendant as envisaged in section 2 of the Companies
Act.
(c) At all material times and until at least 20 January 2014 , the defendant
carried on and conducted business within this Honourable Court’s
area of jurisdiction at Block A, Parklane, corner of Alexander and
Parklane Roads, Pinelands, Western Cape Province, which address
was its principal place of business within the Republic and/or within
this Honourable Court’s area of Jurisdiction.
(d) In the alternative, at all material times and until at least 20 January
2014 , DPO and/or DPI and/or JJM and/or O PY and/or O MC carried
on and conducted business within this Honourable Court’s area of
jurisdiction as the duly authorised agent(s) of the defendant,
alternatively as the duly authorised agent of all the manufacturing
companies in the J &J group of companies for the system.17
[18] Regarding the system , the plaintiff alleges that at Constantia Berg Medi -Clinic ,
Dr Hanna inserted the system in the plaintiff’s right hip. The defendant
manufactured the system .18
[19] Through a letter dated 6 December 2010 , Dr Hanna informed the plaintiff that
the defendant was recalling the system . On 6 April 2011 , Dr Hanna received the
results of a test of the plaintiff’s blood sample , indicating a high level of microscopic
17 For all their Hip Resurfacing Systems.
18 This was not the subject of any dispute.
6
metal particles in the vicinity of her right hip. Dr Hanna accordingly recommended
surgery to replace her right hip implant with a ‘non-metal bearing and a stemmed ’
prosthesis.19
[20] On 23 June 2011 at Constantia Berg Medi -Clinic , Dr Hanna removed the
system and implanted a coral stem with a pinnacle cup with a ceramic -on-ceramic
liner ( ‘the p rosthesis ’) in the plaintiff’s right hip .20
[21] On 3 July 2011 , the prosthesis dislocated while the plaintiff was in bed at
home. After that, under general anaesthetic, Dr Hanna , at Constantia Berg Medi
Clinic, relocated the prosthesis.21
[22] On 4 July 2011 , an x-ray revealed the prosthesis had again dislocated. On 5
July 2011 , Dr Hanna inserted a dual mobility femoral head on a polyethene internal
liner in a shell on the prosthesis to attempt to stabilise the dislocation of th e
prosthesis.22
[23] It is alleged that a s a consequence of the plaintiff’s hip implant /s, the
subsequent hip revision and the subsequent insertion of the dual mobility cup, the
plaintiff : - (a) suffered (and will suffer) shock, pain and discomfort; (b) has incurred
and will in the future incur medical and psychological expenses and, (c) has and will
suffer a loss of earning capacity because of enforced early retirement.23
[24] Further, the plaintiff says t hese consequences are due solely to the
negligence of the defendan t, who manufactured the initial latent ly defect ive system.
The pl eaded claim against the defendant is for damages , interest, and legal costs.24
[25] The plaintiff also allege s that if his court find s that it does not have the
requisite jurisdiction to entertain and d etermine the plaintiff’s claim in terms of the
19 This was the second hip replacemen t surgery performed on the plaintiff.
20 This was a hip replacement manufactured from a totally different type of material.
21 This was then the third surgical operation performed on the plaintiff.
22 Another surgical procedure followed.
23 These allegations are made in support of the damages claim to the sum of R8 041 376,15.
24 The damages allegedly suffered have been separately pleaded.
7
common law, then I should develop the common law by declaring that absent the
attachment of property of a fore ign ‘peregrin us’ to found or confirm jurisdiction
considerations of appropriateness and convenience are nonetheless be sufficient to
clothe th is court with the jurisdiction in these circumstances .25
THE DEFENDANT ’S SPECIAL PLEA
[26] The defendant admits to having manufactured the system. However, in its
(amended) special plea , the defendant avers that:
(a) The defendant is a private limited company duly registered in the
United Kingdom , and its registered address is in Leeds, West
Yorkshire .
(b) It does not have a registered office or principal place of business within
the area of jurisdiction of this Honourable Court .
(c) The defendant is not registered as an external company, nor does it
meet the requirements to be so registered.
(d) At all mater ial times, the defendant did not carry on or conduct
business for profit within this Court’s jurisdiction.
(e) None of the companies listed by the plaintiff (in her amended
particulars of claim) are or were the defendant’s agents in the Republi c
of South Africa.
(f) None of the said companies are ‘linked ’ to the defendant.
(g) Neither the defendant nor any of the companies referred to above are
subsidiaries of J &J.
25 This is the alternative claim by the plaintiff regarding jurisdiction.
8
(h) The defendant is a foreign peregrinus of the Republic.
(i) The plaintiff should have obtained prior leave to institute these
proceedings.
(j) The plaintiff also failed to attach any assets of the defendant in the
Republic of South Africa to found and/or confirm the jurisdiction of this
Court.26
[27] The defendant ’s special plea avers that this court lacks jurisdiction to entertain
the plaintiff’s claim . The defendant seeks dismissal of the plaintiff’s claim with costs .
The defendant (as I unde rstand it) states that the plaintiff should have attached
assets in this country to f ind or confirm the jurisdiction of this court.27
THE PLAINTIFF’S REPLICATION
[28] The plaintiff replicated and plead ed that the defendant had , in any even t,
submitted to the jurisdiction of this court by conduct before the institution of the
action because :-
(a) The defendant implemented a r ecall of the system in South Africa . In
doing so, the defendant appointed Crawford and Company SA (Pty)
Ltd (“C&C”) in Sandton and also local attorneys to deal with all claims
regarding the system .
(b) In the ‘Patient Consent Form ’ that the plaintiff was requested to
complete , which was provided to her (by Dr Hanna as part of the
system recall ), the defendant nominated an address in South Africa to
which the form should be returned as follows:
(i) ‘…DePuy International Limited
26 This is the core shield raised by the defendant.
27 This is the focus of the defendant’s special plea on jurisdiction.
9
(ii) c/o Crawford and Company (SA) (Pty) Ltd Crawford House,
17 Muswell Road South, Bryanston 2021, South Africa
P.O. Box 782023, Sandton 2146, South Africa …’
(c) The ‘Information for Patients ’ document provided to the plaintiff by the
defendant’s attorneys invited the plaintiff to contact a helpline, and the list
of telephone numbers provided included a South African contact number.
(d) Before the commencement of the action, the defendant’s attorneys
addressed a letter to the plaintiff’s attorneys wherein the defendant invited
the plaintiff to agree to a process in terms of which :
(i) the operation of prescription would be suspended but would run again
after receipt of a notice (by either party) to that effect , and
(ii) the defendant nominated South African attorneys to receive any such
notice on its behalf.
(e) The defendant accepted service of the summons in these proceedings
(at Block A, Parklane, C orner Alexander and Parklane Road,
Pinelands) on the defendan t’s behal f.
(f) By implementing the system's recall in the manner set out above , the
defendant was undoubtedly conducting business in South Africa.28
[29] Accordingly , the replication asserts that the defendant unequivocally
proclaimed its willingness to submit to the jurisdiction of the South African courts.29
THE TRIAL PARTICULARS
28 These factual allegations were not materially engaged with by the defendant.
29 These averments are made with reference to the surrounding factual circumstances.
10
[30] The defendant provided trial particulars to the effect that the system
manufactured by the defendant (which was initially implanted in to the plaintiff) was
being distributed in this country ; it was done so by the local agent of DPI.30
[31] The defendant averred that it no longer possessed a copy of this distribution
agreement . However, the defendant admit ted that it manufactured the system . Still,
it denie d having sold or distributed the system to its agent and c laimed not to know
who distributed it to DPI. Subsequently, the defendant asserted that t his sole agent
sold all of its assets to DPI, who , in turn, became the local agent of J &JM.31
[32] Before the trial, the plaintiff sought an admission as to whether or not the
defendant had any property located or situated in this country at the time of the
commencement of this action. The defendant declined to make the admission
sought by the plaintiff .32
THE PLAINTIFF’S CASE
DR HANNA
[33] He is an experienced orthopaedic surgeon who testified that he had
performed several medical procedures concerning the plaintiff’s right hip . The first
procedure was resurfacing the plaintiff’ s right hip using the system . The second
procedure was removing and replacing the system with the prosthesis.33
[34] The third procedure was stabilising the dislocation of the prosthesis by
inserting a femoral head. Dr Hanna testified that the barcode removed from the
system's packaging used in the first operation reflects the defendant's name .34
30 “Orthomedics” was recorded as the exclusive agent for DPI in South Africa.
31 Johnson and Johnson Medical.
32 This was recorded in the defendant’s “ Response to Request for Admis sions ”.
33 This was in connection with the system that was recalled due to latent defects.
34 This was not the subject of any dispute.
11
[35] The barcode taken from the packaging of the prosthesis used in the second
operat ion reflects the name of DPO. The barcode taken from the devices used in
the third operation demonstrate s the name of ‘De Puy France ’. When a device was
needed locally, he would contact ‘Ortho medics’ (OM) . He said this was the local
company representing ‘Depuy ’ (DP) in Cape Town . Dr Hanna regarded OM as the
defendant's local franchise for the products he needed and, more im portantly, for the
system's supply .35
[36] Concerning the system's recall , his evidence was that he was contacted by
DP requesting that he inform his patients about the recall. DP gave him a template
letter (which he modified) and then sent it to his patients, including the defendant .36
[37] DP appointed a local company to handle South African patients . The local
telephone number on the information for the patient document he provided to the
defendant was for th is local company .37
[38] Further, he testified that there was no cure for the continuing pain and
discomfort tha t the plaintiff experienced after the various operations she underwent .
Thus, he corroborated to a limited extent the allegations made by the plaintiff in
support of her claim for damages.38
MR WIESE
[39] OM employed him, and he was involved in the local marke t to supply the
‘system’. After some time, he became employed by J&JM.39
[40] OM and J&JM occupied the address where the summons was initially served .
He testified that this was the case when OM initially employed him and later when
J&JM employed him.40
35 Similarly, this was not the subject of any dispute.
36 This evidence was not disputed.
37 Crawford & Company (SA) (Pty) Ltd.
38 However, accepting this was not the purpose for which his evidence was tendered. .
39 During 2011.
40 Block A, Parklane, Corner Alexander & Parklane Road, Pinelands .
12
[41] According to him, OM was DP's exclusive local agent . In addition, DP
provid ed the staff for OM. DP was also responsible for both the online and in -person
training at OM. OM also reported to DP abroad, where the defendant is based .41
MS VIVIER
[42] At this time, she was a candidate attorney in the employment of the plaintiff’s
attorneys and testified to the accuracy of her contemporaneous file note she had
made.42.
[43] The filed note made b y her at the time and before the summons was served
record ed the following:
‘…TC to DePuy Int. Ltd @ Pineland s
spoke to Steve – their address in Pinelands is:
Block A
Parklan ds
cnr of Alexander and Parklane
They have merged with a company , Synthes & they are now re ferred to
as DePuy Synthes & not DePuy International Ltd …’43
MS BLAKE
[44] She is a qualified conveyancer who testified that specific electronic searches
performed by her revealed : (a) that s he could find no record of immovable property
ever having been registered in the name of DePuy International Limited or DP; (b)
that OM was initially incorporated as ‘DePuy S.A.’ and (c) that ‘Orthomedics
Management Company’ was initially incorporated as ‘DePuy International Limited ’.44
41 In Leeds in the Uni ted Kingdom.
42 Dated 13 January 2014 .
43 This was a record of a contemporaneous note made by the witness.
44 In 1991.
13
THE EXPERT EVIDENCE
[45] The defendant initially closed its case without leading any evidence. The
defendant thereafter applied to admit further limited evidence confirming that the
defendant was a patentee for several patents it had registered in South Africa. The
defendant app lied for leave to re -open its case and call an expert in the field of
patent law. The plaintiff did not oppose this application .45
[46] Thereafter, the experts filed a joint minute and agreed: (a) that the defendant
was the registered patentee concerning at least two valid patents in force when the
plaintiff issued her summons ; (b) that b oth such patents could be attached to found
or confirm jurisdiction and, (c) a lthough neither patent had been valued, the fact that
they had been maintained on the register and their annual renewal fees had been
paid was indicative of the patents being of sufficient nominal value to the
defendant.46
CONSIDERATION
SERVICE OF THE SUMMONS
[47] The return of service concerning the summons is prima facie evidence that
the defendant accepted service of the summons locally. S ervice at a place which is
not the company’s prominent place of business but is its principal place of business
in this jurisdiction constitute s good service..47
[48] Thus, at the very least, the defendant is properly before this court. I say this
because the defendant was able to enter an appearance to defend and file pleadings
duly represented by attorneys and counsel.48
45 The parties agreed that they could each present expert evidence on this limited issue.
46 The parties agreed on the issue of nominal value and not on the issue of saleable value.
47 Federated Ins Co Ltd v Mala wana 1986 (1) 729 (AD) at 758H –759H .
48 Investec Property Fund Limited v Viker X (Pty) Limited 2016 JDR 0904 (GJ) paragraph 11-13.
14
[49] The defendant says that the summons was not served on the defendant in
this country and submits that the summons was only served to the defendant’s local
agent in this country. This argument is challenging to follow because the defendant’s
original plea was filed on behalf of DPIL and not on behalf of J &JM.49
[50] The defendant submitted that the summons was served on O M, the agent for
J&JM. However, in the same breath, t he defendant admitted that the return of
service , reflecting service of the summons , is prima facie evidence of its content s
and did not present any evidence to gainsay th is prima facie evidenc e.50
SUBMISSION TO JURISDICTION
[51] A submission to the jurisdiction of this court by a foreign peregrinus defendant
in an action brought by an incola plaintiff is sufficient for the court to assume
jurisdiction.51
[52] Whether this has occurred is a factual question to be considered by this court.
Thus, I must consider whether the cumulative effect of all the facts proved has
established submission to this court’s jurisdiction on a balance of probab ilities.52
[53] The onus in this case rests with the plaintiff. Thus, the plaintiff must establish
that the defendant has submitted or consented to jurisdiction by conduct consistent
with acquiescence and the test is objective.53
[54] In this connection, the plaintiff contends for the following facts : (a) the
defendant implemented the recall of the system in South Africa , (b) t he defendant
supplied a template letter which was addressed to the plaintiff in this country , (c)
49 Article 1.11 of the “Unidroit Principles of International Commercial Contracts (2016)” provides that
where a party has more than one place of business the relevant place of business is that which has
the closest relationship to the contract and its performanc e.
50 The defendant did not present any viva voce evidence in this connection.
51 Ingosstrakh v Global Aviation Investments (Pty) Ltd & Others 2021 (6) SA 352 (SCA) at
paragraphs 29 to 47.
52 Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd 2005 (2) SA 522
SCA at paragraph 13.
53 National Arts Council and another v Mini ster of Arts and Culture and another 2006 (1) SA 215 (C)
at paragraphs 37 to 38.
15
attached to th is letter was a ‘patient consent form ’ to be completed and filed in this
country (d) the defendant undert ook to pay for the examination and any medical
follow up in this country , and (e) the defendant record ed the intention to cover all the
reasonable and customary costs of testing and remedial treatment if required ,
including revision surgery associated with the system recall in this country .54
[55] In addition, a helpline was established in this country , and the defendant
appointed a local company and local attorneys to deal with claims about the
system55.
[56] Most importantly, after the plaintiff’s revision surgery , some money was
reimbursed locally on behalf of the defendant , albeit with no admission of liability.
The entire recall implementation o ccurred in this country. Finally, the attorneys for
the defendant recorded the defendant’s willingness to submit to our law and
process .56
[57] The plaintiff’s primary case is that when these facts are considered together,
the defendant's unequivocal conduc t demonstrates a clear intention by the defendant
to submit to this court’s jurisdiction .57
[58] I am in wholesale agreement with this argument. However, even if I am
wrong on this score, this court has jurisdiction to deter mine this matter for several
other reasons. I say this because our law has developed to the point where a court
must examine whether the forum sought to be employed has a ‘real and substantial ’
connection with the action regarding the relevant connecting factors that tie th e
action to the forum in question. Put another way, the attachment of property to found
or confirm jurisdiction is no longer an absolute requirement in suits against foreign
peregrini .58
54 These were all offers and tenders to accepted and performed in this country.
55 Crawford and Company SA (Pty) Ltd .
56 Compensation was based on South African La w and process.
57 National Arts Council and Another v Minister of Arts and Culture and Another 2006 (1) SA 215 (C)
at paragraphs 37 to 38.
58 Competition Commission v Bank of America Merrill Lynch International Ltd and Others 2020 (4) SA
105 (CAC) at paragraph 51.
16
[59] The defendant wisely conceded that an attachment is no longer an absolute
requirement in suits against foreign peregrini where the summons was serve d on the
defendant in th is country and where an attachment of property is impossible .59
[60] Thus, this is precisely where the factual dispute between the plaintiff and the
defendant is narrowly located. T he plaintiff’s case is that the summons was served
on the defendan t locally and that no attachment of property in this country of any
‘saleable value ’ was possible when the summons was served . The defendant
disputes this. I now analyse some undisputed and disputed facts concerning the
connecting factors that may or may not serve to tie the action to the forum in
question. The plaintiff is an incola of this court. That was the case whe n the system
was sold and implanted into her, and this remained so when the system's failure
manifested.60
[61] The delict that is the subject matter of these proceedings was committed
within the territorial confines of the jurisdiction of this court. A local company
supplied the system to the plaintiff.61
[62] The first operation to implant the system occurred at a local medical facility.
When the system failed, the plaintiff was an incola of this court. Two further remedial
procedures followed, which took place at local medical f acilities. At common law, a
court has jurisdiction in proceedings based on delict if it occurs or is committed in its
jurisdiction.62
[63] Thus, it is challenging to avoid the conclusion that thi s court is the forum with
which the action has a fundamental and substantial connection. I say this because,
in its essential features, the plaintiff’s claim is a defective product claim in delict .63
59 This was conceded in the heads of argument filed on behalf of the defendant.
60 The plaintiff was also an incola of this court when these proceedings commenced .
61 Orthomedics (Pty) Ltd was registered in Pinelands in the Re public of South Africa.
62 These facts are not disputed by the defendant.
63 Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 (4) SA 276 (SCA) .
17
[64] I say this also because the place or location of the commission of a delict in a
product liability case is to be determined concerning where the harm was inflicted.64
[65] The defendant advances that our jurisprudence dictates that there is no need
to attach property when the summons was served on the foreign peregrin e
defendant in th is country where an attachment of property is impossible.65
[66] This argument advanced by the defendant bears more scrutiny. I say this
because of the peculiar facts of thi s case. The plaintiff submits that no attachment of
property of any ‘saleable value ’ was possible when the summons was served on the
defendant .66
[67] It is common cause that when the summons was served, the defendant had
some interest s in two registered patents. Further, the patents were of nominal value
(as agreed). As I understand the evidence, the defendant’s interests in the two
patents had no sal eable value. Thus, any attachment by the plaintiff would have
been meaningless and served no purpose.67
[68] In connection with these interests in the registered patents, the defendant
nominated local addresses for the two patents to be registered in its name . Thus,
the defendant undoubtedly had a physical presence locally through its agents .68
[69] Even if I am wrong in my interpretation and analysis of our current
jurisprudence on this issue , the peculiar facts of this case dictate that the c ommon
law regarding jurisdiction needs to be developed. We live in a technology -driven
society, and more global international businesses with no boundaries are being
developed.69
64 Thomas v BMW South Africa (Pty) Ltd 1996 (2) SA 106 (C) .
65 As per the d efendant’s heads of argument (delivered on 23 November 2023) at paragraph 28.
66 The summons was served in Cape Town during January 2014.
67 Schmidt v Weaving 2009 (1) SA 170 (SCA) at paragraph 23.
68 Lin and Another v Minister of Home Affairs and Others 2015 (4) SA 197 (GJ) .
69 Richman v Ben -Tovim 2007 (2) SA 283 (SCA) at paragraph 9.
18
[70] Thus, as a matter of pure logic, the common law should be adopted and
adapted to modern customs and practices of international trade . In developing the
common law, considerations of appropriateness and convenience may sufficiently
dilute and erode the doctrine of effectiveness as pre-eminent in questions relating to
jurisdiction over foreign defendants.70
[71] The common law should be developed insofar as monetary claims against the
defendant in this case are concerned. The peculiar facts of this case dictate that the
common law regarding jurisdiction falls to be ex panded and developed to benefit this
plaintiff. Thus, the special plea on jurisdiction should fail.71
[72] I make the following order:
1. The special plea on jurisdiction is dismissed.
2. The defendant shall be liable for the costs of an incidental to the
determination of the special plea on jurisdiction.
3. The costs shall be on the scale as between party and party and shall
include the c osts of two counsel (where so employed) on Scale C.
_________
E D WILLE
CAPE TOWN
COURT APPEARANCES :
FOR AND ON BEHALF OF THE PLAINTIFF
70 Vedanta Resources Holdings Limited v ZCCM Invest ment Holdings PLC 2019 JDR 1425 (GJ) .
71 All the surrounding circumstances and facts are overwhelmingly to the benefit of the plaintiff.
19
S OLIVIER S.C. AND WITH HIM J ORD
INSTRUCTED BY
A BATCHELOR AND ASSOCIATES
FOR AND ON BEHALF OF THE DEFENDANT
B MANCA S.C.
INSTRUCTED BY
FASKEN INCORPORATED