J E M Mayne v C P M Main

The appellant instituted an action against the respondent for payment of money and ancillary relief in the Witwatersrand Local Division. The respondent raised a special plea of non-jurisdiction. The key issue was whether the respondent was "residing in" the area of jurisdiction when summons was served on 18 April 1995, as required by s 19(1)(a) of the Supreme Court Act 59 of 1959. The respondent was a peripatetic businessman born in England in 1961 who came to South Africa as a child, became a South African citizen, and later emigrated to the USA in 1981. From 1987 he lived in London and later at Brailes House in Oxfordshire with Mrs Edmiston. In 1991 he restructured his business through Dayspring Holdings Ltd. From 1992 onwards, his business activities in South Africa increased significantly. In 1990 he spent 55 days in South Africa (25 on holiday); in 1991, 45 days (22 on holiday); in 1992, 27 days (all holiday); in 1993, 132 days (32 on holiday); in 1994, 263 days (61 on holiday); and from 1 January to 31 July 1995, 174 days. Most of this time was spent in Johannesburg. In 1994 he set up an office in Johannesburg for Dayspring and leased a vehicle. In March 1994 he met Mrs Rowand and became romantically involved with her, leading to her divorce in February 1995. He moved in with her in Inanda immediately after her divorce, having ended his relationship with Mrs Edmiston in April/May 1994. The trial judge (Eloff JP) dismissed the action, finding the respondent had not been proved to be resident in the jurisdiction. A Full Court appeal was dismissed by majority. The appellant was granted special leave to appeal to the Supreme Court of Appeal.

• Whether the respondent was 'residing in' the area of jurisdiction of the Witwatersrand Local Division on 18 April 1995 within the meaning of s 19(1)(a) of the Supreme Court Act 59 of 1959
• The meaning and requirements of 'residence' for purposes of establishing jurisdiction
• Whether a peripatetic businessman with extensive international travel could be found to be residing in a particular jurisdiction
• The weight to be given to subjective intention versus objective facts in determining residence

The appeal succeeded with costs. The order of the Full Court was set aside. The special plea of non-jurisdiction was dismissed with costs, thereby establishing that the Witwatersrand Local Division had jurisdiction to entertain the appellant's action.

For purposes of s 19(1)(a) of the Supreme Court Act 59 of 1959, 'residing in' a jurisdiction requires some degree of stability or permanence beyond temporary visitation. While a person can have more than one residence, they can only be residing in one place at any given moment. Residence is determined by an objective assessment of all relevant circumstances, applying a common sense and realistic approach, particularly in light of modern itinerant lifestyles. Relevant factors include: the duration and frequency of physical presence; the existence of a working base or infrastructure in the jurisdiction; the ongoing or long-term nature of business activities; and personal ties such as romantic relationships. A person's subjective intention or belief about where they reside is not conclusive and may be outweighed by objective facts establishing stability and permanence of presence. Where a strong prima facie case of residence is established, and the person fails to prove residence elsewhere, the court may infer that the person was residing at the place in question. The onus of proving residence for jurisdictional purposes rests on the plaintiff.

The Court noted that modern day conditions and attitudes tend toward more itinerant lifestyles, particularly among businesspeople, and that a rigid approach to residence might allow certain persons habitually to avoid the jurisdictional nets of courts and escape legal accountability. The Court observed that the maxim ubi uxor ibi domus (where the wife is, there is the home) does not strictly apply to unmarried romantic relationships, but the underlying principle that 'home is where the heart is' may have relevance. The Court also commented that the doctrine of effectiveness discussed in Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991(1) SA 482 (A) did not detract from the generally accepted principles of residence and essentially emphasized that residence connotes acceptable permanence and stability. The Court stated that for purposes of jurisdiction, South African courts do not recognize the concept of a vagabundus (wanderer without residence).

This case is significant in South African civil procedure for clarifying and applying the test for residence for purposes of establishing jurisdiction under s 19(1)(a) of the Supreme Court Act. It demonstrates that courts will adopt a realistic and common-sense approach to determining residence in modern conditions, particularly for peripatetic businesspeople. The case establishes that subjective intention about residence is not conclusive and may be overridden by objective facts pointing to stability and permanence of presence. It also illustrates that increased business activities in a jurisdiction, combined with personal factors (such as romantic relationships), can establish residence even for someone with international business interests. The judgment reinforces that a person must be residing somewhere for jurisdictional purposes and that failure to prove residence elsewhere strengthens the inference of residence at the place where a prima facie case has been established.