The Promotion of Access to Justice through the Constitutional Development of the Doctrine of Forum Non Conveniens

Abstract

South African jurisdictional principles governing cross-border litigation have seen minor development in recent years and as such, remained feudal and anachronistic. It is essential for South African courts to be equipped with the necessary jurisdictional powers to assume and exercise jurisdiction in disputes concerning its own citizens against foreign multinational corporations. This article aims to propose a way forward, centred around the constitutional reform of the South African doctrine of forum non conveniens, in a manner that advances sustainable and equitable legal development, while also simultaneously promoting the principle of transformative constitutionalism and the right of access to courts. To produce sustainable and viable solutions, a comparative analysis of both the principles of private international law and the proposed reform of the doctrine in comparable jurisdictions is undertaken. The effect of any associated international agreements and instruments applicable to these jurisdictions that may have an impact on or insight into the way forward is also examined. It is hoped that this article will result in a meaningful contribution to the discourse on the development of the jurisdictional principles of South African law, to achieve access to justice for all within Southern Africa and the African continent as a whole.