respect of claims relating to property situated in Israel. The reason was that in relation to real actions directly
raising the title of property, the forum rei sitae has exclusive jurisdiction. The court in that case rejected the view
that the court of the defendant's domicile had any jurisdiction to determine the rights to immovable property
situated in Israel.
For purposes of jurisdiction in respects of incorporeal, our law distinguishes between movable and immovable
incorporeals. Intellectual property rights are territorial in nature. Territoriality applies to registered intellectual
property rights such as patents, trademarks, and unregistered rights. The same applies to copyright. Intellectual
property rights including copyright, are immovable intangibles and local courts do not have jurisdiction in respect of
foreign copyright issues. The fact that a work was created in this country is irrelevant for purposes of this case.
The respondents placed much reliance on a judgment of the Court of Appeal (England and Wales) in the case of
Lucasfilm Ltd v Ainsworth [2009] EWCA Civ 1328. In that case, the plaintiff, an American corporation, sued an incola
of the United Kingdom (UK) for a breach of American (US) copyright. The acts were committed in the UK but were
considered for purposes of US law to have been committed in the USA. The court refused to entertain the matter,
holding that UK courts do not have jurisdiction to hear such a case. Clearly, the court dealt with exactly the same
issue that concerned the present Court. Although UK courts had personal jurisdiction, the question was whether
they had subjectmatter jurisdiction, ie, whether there was a causa jurisdictionis. In concluding that a UK court did
not have jurisdiction to decide a matter involving the infringement of foreign copyright, the court in the Lucasfilm
case applied a jurisdiction rule, applicable to immovables, to copyright. That rule was for all intents and purposes
the same as the rule in Eilon.
Therefore, based on the principle accepted in Eilon that South African courts do not have jurisdiction to decide
claims in respect of property located outside
Page 451 of [2011] 1 All SA 449 (SCA)
of South Africa, the Court upheld the decision of the court a quo. The appeal was thus dismissed.
Notes
For Civil Procedure see:
.
LAWSA Second Edition (Vol 3(1), paras 1441)
.
Harms, LTC Civil Procedure in the Superior Courts Durban LexisNexis Butterworths 2005
For Intellectual property see:
.
LAWSA Second Edition Vol 29
.
Burrell TD Burrells South African Patent and Design Law 3ed Durban LexisNexis Butterworths 1999
Cases referred to in judgment
South Africa
Appleton and another v Harnischfeger Corporation and another [1995] 2 All
SA 693 (1995 (2) SA 247) (A) Referred to
456
Caterham Car Sales and Coachworks Ltd v Birkin Cars (Pty) Ltd and
another [1998] 3 All SA 175 (1998 (3) SA 938) (SCA) Referred to
456
Eilon v Eilon [1965] 2 All SA 72 (1965 (1) SA 703) (A) Discussed
454
Estate Agents Board v Lek 1979 (3) SA 1048 (A) Referred to
453
Ewing McDonald and Co Ltd v M and M Products Co [1991] 1 All SA 319
(1991 (1) SA 252) (A) Referred to
453
Gcaba v Minister for Safety and Security and others 2010 (1) BCLR 35
(2010 (1) SA 238) (CC) Referred to
453
Hugo v Wessels [1987] 2 All SA 290 (1987 (3) SA 837) (A) Referred to
455
Makhanya v University of Zululand [2009] 4 All SA 146 (2010 (1) SA 62)
(SCA) Referred to
453
McDonald's Corporation v Joburgers DriveInn Restaurant (Pty) Ltd [1996]
4 All SA 1 (1997 (1) SA 1) (A) Referred to
456
Memory Institute SA CC t/a Memory Institute v Hansen and others [2003]
JOL 11019 (2004 (2) SA 630) (SCA) Referred to
457
Metlika Trading Ltd and others v Commissioner SA Revenue Services
[2004] 4 All SA 410 (2005 (3) SA 1) (SCA) Referred to
455
MV Snow Delta: Serva Ship Ltd v Discount Tonnage Ltd [2000] 4 All SA
400 (2000 (4) SA 746) (SCA) Referred to
455