The appellant in the matter, IRD Global Limited, is a global health delivery and research organisation that was founded in Pakistan in 2004 and registered in Singapore. The respondent, The Global Fund to Fight Aids, Tuberculosis and Malaria, is an international organisation established in Switzerland, involved in the fight against Aids, Tuberculosis and Malaria, and acts as a donor and implementor of global fund-supported programs. Both parties are peregrini (foreign) to the Gauteng Division of the High Court, Johannesburg and do not own any immovable property in South Africa.
The dispute between the parties related to an alleged defamatory report that the respondent published on its website, regarding allegations against the appellant, naming specifics such as conflict of interest, collusive and anti-competitive practices, data inflation and overcharging, involving a grant in Pakistan.
The appellant’s South African attorney, acting on instructions from the appellant, accessed the respondent’s website and downloaded the report in Johannesburg. The appellant, on the basis that the report was accessed in Johannesburg, aimed to pursue a defamation action in the Gauteng High Court against the respondent. In May 2021, the appellant launched an urgent application in the High Court seeking interim relief.
The respondent opposed the urgent application, inter alia, on the grounds that the Gauteng High Court lacked jurisdiction to entertain the application. In considering the application, the High Court held that it did not have jurisdiction to entertain the application and that a South African Court was not a forum of convenience. Therefore, the application was dismissed with costs.
The appellant appealed the judgment to the SCA. During the appeal, the SCA confirmed the following regarding the law of jurisdiction.
- A basic principle of the law of jurisdiction is that of effectiveness. A court must be able to give effect to its judgments.
- Where a judgment debtor has immovable property in South Africa, a court can order its attachment and so give effect to its judgment.
- Jurisdiction is also exercised where litigants submit to the court’s jurisdiction.
The SCA confirmed that there must be an adequate connection between the suit and the area of jurisdiction of the South African court concerned from a point of view of appropriateness and convenience. These are elastic concepts which can be developed on a case-by-case basis. However, with online publications, the court must still ascertain the most appropriate forum, taking into consideration the parties’ connection with the specific court’s jurisdiction.
When applying the above principles to the facts of the matter, the SCA found that neither party, both being peregrini, had any real connection to South Africa. The process was not served in South Africa, and the respondent did not have a place of business locally. There was further no connection between the High Court’s jurisdiction and the dispute.
The SCA found that the cause of action arose in Pakistan, and not in South Africa, with the only connection to the Gauteng High Court’s jurisdiction being that the attorney for the appellant accessed the report in its jurisdiction.
The SCA found that online publications, with their global reach, for practical purposes must be contained otherwise multiple actions could follow in jurisdictions with no real connection to the parties or the issues in dispute other than the publication. This could lead to grave inconvenience to the courts, witnesses and litigants. Accordingly, the SCA found that there were inadequate connecting factors for jurisdiction and dismissed the appeal with costs.
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