of jurisdiction" and is the rationale for jurisdiction, "it is not necessarily the criterion for its existence."5 What
is further required is a ratio jurisdictionis.6 The ratio, in turn, may for instance be domicile, contract, delict and,
relevant for present purposes, ratione rei sitae. It depends on the nature of the right or claim whether the one
ground or the other provides a ground for jurisdiction. Domicile on its own, for instance, may not be enough.
As Forsyth (page 164) rightly said:
"First there is the search for the appropriate ratio jurisdictionis; and then the court asks whether it can give an
effective judgment. . . . [and] neither of these is sufficient for jurisdiction, but both are necessary for jurisdiction."
[11] The point may be illustrated with reference to Eilon v Eilon 1965 (1) SA 703 (A) [also reported at [1965] 2 All
SA 72 (A) Ed]. It was a marital dispute. This court held that since the defendant was not domiciled in South
Africa, local courts had no jurisdiction to grant a divorce. However,
Page 455 of [2011] 1 All SA 449 (SCA)
since he was resident in the country a local court had jurisdiction to grant a judicial separation. A claim for
maintenance, being one ad pecuniam solvendam, was permitted because such an action is justiciable where
the defendant resides. The claims in relation to property situated in South Africa were also justiciable.
However, in relation to the claims relating to property situated in Israel, the court held, South African courts
had no jurisdiction. The reason was that in relation to real actions directly raising the title of property the
forum rei sitae has exclusive jurisdiction.7 The court rejected the view that the court of the defendant's
domicile had any jurisdiction to determine the rights to immovable property situated in Israel. (At 726H727B.)
[12] It may be mentioned that this rule does not necessarily apply in respect of immovable property situated within
South Africa because a
View Parallel Citation
distinction is drawn between the jurisdiction of country state courts and that of South African high courts.8
The detail is not germane for present purposes.
[13] The position is not necessarily the same for movables. Although the forum rei sitae has, in principle,
jurisdiction, this jurisdiction is not necessarily exclusive and the court of the domicile of the defendant may
also have jurisdiction. This explains, to the extent that it is necessary, the judgment in Metlika Trading Ltd and
others v Commissioner SA Revenue Services 2005 (3) SA 1 (SCA) [also reported at [2004] 4 All SA 410 (SCA)
Ed]. It dealt with a movable, an aircraft, belonging to an incola. This court held that a local court had by virtue
of that fact jurisdiction to grant an interdict in personam relating to the use of the aircraft which was overseas.
The discussion relating to effectiveness did not impact on this part of the reasoning.
[14] For purposes of, inter alia, jurisdiction in respects of incorporeals our law (like many others), and in spite of
possible dogmatic flaws, also distinguishes between movable and immovable incorporeals.9 The situs of an
intangible "is to be found where the intangible can be effectively dealt with."10 Therefore, and by analogy
with movable corporeals, the forum domicilii has jurisdiction in relation to incorporeals.11 And in relation to
immovables the rule laid down in Eilon (supra) would apply.
[15] Intellectual property rights ("IPRs") are territorial in nature.12 As Prof Alexander Peukert explains in a
forthcoming publication:13
"To begin with, one has to distinguish different aspects of 'the' territorial principle in IP. Its fundamental objective
dimension means that an IP right is
Page 456 of [2011] 1 All SA 449 (SCA)
limited to the territory of the state granting it. The exclusive right can only cover activities occurring within the
respective territory. No intangible subject matter is protected by one uniform right covering the whole world. Instead,
technical inventions, works of literature and arts, signs, etc. are subject to a bundle of possibly more than 150
territorial rights of national or regional provenance. These rights are independent from each other so that an
invention, work, etc. may be protected in one country, but in the public domain in another. . . . A comparative study
reveals that this objective territoriality has long been accepted in the EU, its Member States like Germany or the
Netherlands, other European countries like Switzerland, commonlaw countries around the globe, Japan, and not least
the U.S."
View Parallel Citation
[16] Territoriality applies to registered IPRs such as patents 14 and trademarks.15 It also applies to unregistered
rights. For instance, wellknown unregistered trademarks are entitled to local protection by virtue of article
6bis of the Paris Convention for the Protection of Industrial Property provided they are locally well known.16 A
comparable instance is goodwill the plaintiff must have a reputation within the area of jurisdiction of the
court.17
[17] The same applies to copyright.18 That the plaintiffs appreciated this fact appears from the particulars of claim
where the right to copyright and infringement was defined with reference to the laws of each particular
jurisdiction. As McEwan J said in relation to the South African copyright in a work authored by an Indian
national in India:
"those rights are property in the Republic created by an Act of the South African Legislature."19
The same would, obviously, apply to copyright in the UK.