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n Stellenbosch Law Review = Stellenbosch Regstydskrif - Arresting a foreign peregrines : and a new jurisdictional lacuna

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Abstract

In , the SCA declared the arrest procedure whereby an incola plaintiff may found or confirm jurisdiction over a defendant foreign peregrinus to be an unjustifiable infringement of the peregrine's constitutional rights. The effect of the decision is to render unconstitutional the portions of subparagraph (c) (i) and (ii) of section 19(1) of the Supreme Court Act which refers to the arrest of a peregrine, thereby recreating a jurisdictional lacuna which the original insertion of section 19(1)(c) into the Supreme Court Act had sought to plug. According to the SCA, a constitutionally justifiable alternative to arrest could be found in the English procedure of asserting jurisdiction by the mere service of summons on a foreign defendant who is physically present within an English court's territorial boundaries. This method of asserting jurisdiction over a foreign defendant is common to most adversarial systems and is familiarly labelled in the USA as transient or tag jurisdiction. The purpose of this article is to critically evaluate the nature of transient jurisdiction as it is currently practised in England and the USA, in order to determine its suitability as a new South African ground of jurisdiction. In addition, the article examines the doctrine of minimum contacts which is a unique USA procedure for founding jurisdiction against alien non residents. The minimum contacts doctrine is constitutionally tested, based on the Due Process clause of the Fourteenth Amendment of the USA Constitution, and may represent a model well suited to South African civil procedure. As South Africa embarks on its own constitutional re-evaluation of the common law principles of jurisdiction some relevant value may be found in the United States experience.

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/content/ju_slr/21/1/EJC54728
2010-01-01
2016-12-07
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