n Annual Survey of South African Law - Bill of Rights jurisprudence

Volume 2008, Issue 1
  • ISSN : 0376-4605



As discussed below under Freedom and Security of the Person, in 2008 (3) SA 355 (SCA), the Supreme Court of Appeal held that the common-law rule allowing the arrest of a defendant in order to found or confirm jurisdiction is unconstitutional. The appeal court exercised its broad power to develop the common law in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 to abolish the practice of jurisdictional arrest and to adopt what Howie P referred to as 'a legally acceptable substitute practice' (para [51]). This practice is that where attachment of property is not possible, a High Court has jurisdiction if the summons is served on the defendant while in South Africa and 'there is sufficient connection between the suit and the area of jurisdiction of the court concerned so that disposal of the case by that court is appropriate and convenient' (para [59]).

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