In January 2025, the High Court handed down a judgment which revisited the application of the well-known common law rule requiring a South African claimant to attach property in South Africa of a foreign defendant who is to be sued to found or confirm the court’s jurisdiction.

The matter arose from an allegedly defective hip replacement system, manufactured by a foreign company, which was implanted into a patient’s body during hip replacement surgery. The patient claims to have suffered around R8 million in damages.

After the patient had instituted action, the foreign company challenged the jurisdiction of the High Court, arguing that the foreign company did not have a local presence, and that the patient had failed to attach any of its property in South Africa to found or confirm jurisdiction.

The court was therefore required to determine:

  • whether the patient’s failure to attach property to found or confirm jurisdiction was fatal to her action; and
  • whether the common law rule necessitating an attachment to found or confirm jurisdiction was compatible with current constitutional values and whether the court should develop the common law to accord with those values.

The court considered the common law requirement to found or confirm jurisdiction over a foreign defendant and determined that the attachment of property to do so is no longer an absolute requirement in our law. Rather, the definitive question should be whether the adjudicative forum sought to be employed (South Africa) has a real and substantial connection with the action.

To the extent that the court’s interpretation of our existing law might be wrong, the court stated that the common law should in any event be developed on the particular facts of this case to align with the modern customs and practices of international trade in a technology-driven society, and to allow considerations of appropriateness and convenience to suffice for jurisdiction in cases involving foreign defendants.

On that basis, the court dismissed the foreign company’s jurisdictional challenge with costs, allowing the patient’s claim for damages against the foreign company to proceed in South Africa.

The effect of this judgment, if followed (which is likely), will be that foreign defendants can no longer escape liability before South African courts by resorting, without more, to the common law rule requiring the attachment of property to found or confirm jurisdiction against them, especially in an action where the relevant events connect their alleged fault to South Africa.  In this case, the foreign company supplied its product for use in South Africa, and subsequently a recall of the product was implemented in South Africa through a local company and local attorneys.

The case is Swanepoel v DePuy International Limited (20758/2013) [2025] ZAWCHC 9 (21 January 2025).