Vol 23 (2026) - Issue 1

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Jurisdictional Uncertainty and Judicial Reluctance

Synopsis
This article analyses the South African judgment Oragani Mark (Pty) Ltd v GNE Akoodie (Unreported, Gauteng Division, Case No. 11435/2020), which concerns the relevance of private international law. Private international law remains a grey area within South African domestic law, as it is not always clear whether disputes arising in a foreign country or jurisdiction can be adjudicated by South African courts. Courts often appear to
focus on technicalities to avoid engaging with private international law, even where the legal principles of the foreign jurisdiction and South Africa are similar, or at least substantially aligned. A comparable situation arose in CMC v CIPC [2020] ZASCA 151, where business rescue proceedings initiated in Italy were not recognised for the Italian company in South Africa.
This article does not discuss the technicalities of lex fori (procedural law, such as the law of evidence) and lex causae (substantive law, such as the common law) in establishing jurisdiction under private international law; in principle a court has jurisdiction to hear a matter if it is lex causae. It is also not the purpose of this article to solve the grey areas of private international law. This article tries to illustrate similarities (and dissimilarities) in case law which acknowledge lex causa to hear a matter which originated in a foreign state or country. The purpose of private international law tries to promote justice and fostering cooperation between different states at an international level.