Contracting With Foreigners

In a decision handed down by the Supreme Court of Appeal on 30 November 2004 (Hay Management Consultants Ltd vs P3 Management Consultants (Pty) Limited), the court considered whether a consent to the jurisdiction of a court in a contract can be relied upon in an action not directly arising from that contract, and whether the domicilium and choice of law clauses in a contract are sufficient to found jurisdiction.

The plaintiff conducted business in the area of the Witwatersrand court. The defendant was a UK company, having no connection with or presence in South Africa, save for its relationship with the plaintiff. In the contract which the defendant had concluded with the plaintiff, it selected an address in South Africa as its domicilium for service of process and writs of execution. Its ongoing relationship with the plaintiff encompassed business in countries with varying legal systems (inter alia Angola, Malawi and South Africa). In terms of the contract, the defendant chose