Bid Industrial Holdings (Pty) Ltd v Strang and Others

Bid Industrial Holdings (Pty) Ltd, a South African company, intended suing John and Andrew Strang, Australian citizens resident and domiciled in Australia, in the Johannesburg High Court for delictual damages arising from alleged intentional interference with contractual relations and diversion of profits linked to a joint venture involving companies controlled by the Strangs. As the respondents were foreign peregrini with no attachable property in South Africa, the appellant applied for an order for their arrest to found or confirm the High Court’s jurisdiction under s 19(1)(c) of the Supreme Court Act 59 of 1959. The respondents opposed the application, arguing inter alia that no prima facie delictual claim was established and that arrest to found or confirm jurisdiction was unconstitutional. The Minister of Justice and Constitutional Development was joined due to the constitutional challenge.

The Supreme Court of Appeal held that arrest to found or confirm jurisdiction is unconstitutional. The common law was developed to abolish the requirement of arrest to found or confirm jurisdiction, and s 19(1)(c) of the Supreme Court Act was declared unconstitutional to the extent that it permits jurisdictional arrest.

This case is a landmark in South African civil procedure and constitutional law. It abolished jurisdictional arrest as a mechanism for founding or confirming jurisdiction over foreign defendants, aligning jurisdictional rules with constitutional rights to liberty, dignity and equality. The judgment modernised South African private international law and clarified that courts must rely on constitutionally compliant bases of jurisdiction rather than coercive common-law practices.