Purser v Sales [2000] ZASCA 46; 2001 (3) SA 445 (SCA) ; [2001] 1 All SA 25 (A) (28 September 2000)

Did the appellant submit to the jurisdiction of the English court by failing to object to its jurisdiction during the proceedings?

The case involves two appeals concerning the enforcement of foreign judgments obtained by the respondent, Alan Edward Sales, against the appellants, Frank Albert William Purser and Jeanne Patricia Purser. The respondent, a British national residing in the United Kingdom, initiated legal proceedings in the Transvaal Provincial Division of the High Court of South Africa for the enforcement of judgments he had previously obtained in the Central London County Court.

In the first matter, the respondent issued a provisional sentence summons against the appellant, Frank Purser, for the payment of £150,339.16, along with interest calculated at 8% per annum from 3 February 1997. This claim was based on a judgment rendered by the Central London County Court on the same date. In the second matter, both the respondent and his wife, Sandra Jacqueline Sales, issued a similar provisional sentence summons against both Frank and Jeanne Purser for a different sum of money, based on a judgment obtained in the same court on 10 February 1997.

The appellants denied liability in both cases, with the primary contention being whether the Central London County Court had jurisdiction over the appellants at the time the judgments were issued. The crux of the dispute revolved around whether the appellants had submitted to the jurisdiction of the foreign court, as this would determine the enforceability of the judgments in South Africa.

The background facts reveal that the claim against Frank Purser was rooted in an agreement made in England on 1 October 1987, which did not specify a jurisdiction for disputes arising from it. The legal proceedings in the UK commenced with a Writ of Summons issued on 27 January 1989, which was served on Frank Purser in South Africa with the permission of the English court. Following this, an Acknowledgment of Service was filed on behalf of the appellant, and a Defence was submitted on 2 June 1989.

The case progressed through various legal steps, including an application by Frank Purser to strike out the respondent's claim for want of prosecution. Ultimately, the matter was transferred to the Central London County Court on 27 January 1997 for consolidation with another related case. On 3 February 1997, judgment by default was entered against Frank Purser when he failed to appear for the trial.

The appellants contended that they had ceased to be residents of the UK by the time the proceedings were initiated, having moved to South Africa in 1988 and taken up permanent residence there. They argued that this change in domicile meant that the English court lacked jurisdiction over them. However, it was established that the English courts had jurisdiction under their own laws, and the respondent had obtained the necessary leave to serve the process in South Africa.

The legal issue at the heart of the case was whether the appellants had effectively submitted to the jurisdiction of the English court by their conduct, particularly by not raising any objections to the court's jurisdiction during the proceedings. The court ultimately found that the appellants had indeed submitted to the jurisdiction, as they had participated fully in the proceedings without objection, leading to the dismissal of their appeal.

The ratio decidendi of the case is that a defendant who fails to object to the jurisdiction of a court prior to litis contestatio is deemed to have submitted to that court's jurisdiction. This principle is rooted in the notion that submission can occur through conduct, including participation in the proceedings without raising jurisdictional objections. In this case, the appellants' actions—such as filing a plea on the merits and participating fully in the legal process—constituted a tacit acceptance of the jurisdiction of the English court, thereby rendering the judgments obtained there enforceable in South Africa. The court emphasized that a defendant cannot later repudiate the jurisdiction of a court after having invoked it to defend against a claim.

The court relied on several cases in its reasoning process, including:

Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (T)
Jones v Krok 1995 (1) SA 677 (A)
Mediterranean Shipping Co v Speedwell Shipping Co Ltd and Another 1986 (4) SA 329 (D)
Du Preez v Phillip-King 1963 (1) SA 801 (W)
Lubbe v Bosman 1948 (3) SA 909 (O)
William Spilhaus & Co (M.B.) (Pty) Ltd v Marx 1963 (4) SA 994 (C)

These cases were cited to support the principles regarding the submission to jurisdiction and the requirements for the enforcement of foreign judgments in South Africa.