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 remains feudal and anachronistic. This study proposes to employ a qualitative research method to undertake a comparative legal analysis of the workings of the common law doctrine of forum non conveniens and the application thereof in conjunction with South African jurisdictional principles. It is essential that South African courts are equipped with the necessary jurisdictional powers to assume and exercise jurisdiction in appropriate cases concerning cross-border civil litigation. The enduring theme will be access to justice to all parties and striking a balance between opposing litigants as far as financial resources and legal expertise are concerned – that will ensure a fair trial.

The anticipated outcome of the aforementioned research is to propose a way forward centred around constitutional reform in respect of the adaptation and application of the doctrine of forum non conveniens in a manner that is consistent with the constitutional right to access to the courts, which simultaneously also promotes the spirit, purpose and objects of the Bill of Rights and the principle of transformative constitutionalism, the right of access to courts as well as reform of outmoded South African jurisdictional provisions.

To produce sustainable and viable solutions a comparative analysis of the application of principles of private international law and proposed reform of the doctrine in comparable jurisdictions is be undertaken, as well as an enquiry into the effect of associated international agreements and instruments applicable to these jurisdictions that may have an impact on or insight into the way forward.