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ZAWCHC 9**

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* * *

##  Swanepoel v Depuy International Limited (20758/2013) [2025] ZAWCHC 9 (21
January 2025)

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**REPUBLIC OF SOUTH AFRICA**

**IN THE HIGH COURT OF SOUTH AFRICA**

**(WESTERN CAPE DIVISION, CAPE TOWN)**



**Case Number:   20758/2013**



In the matter between:



**CHANINE ELIZABETH SWANEPOEL
**Plaintiff



and



**DEPUY INTERNATIONAL LIMITED**
Defendant



Coram:           Wille, J

Heard:            25 October 2024

Delivered:      21 January 2025



**JUDGMENT**



**WILLE, J:**



_**INTRODUCTION**_



[1]        This is a trial about an interlocutory issue concerning the
jurisdiction of this court.  The parties will be referred to as cited in the
pending main action proceedings.  The defendant filed a special plea
challenging the jurisdiction of this court.[1]



[2]        The plaintiff underwent hip replacement surgery more than a decade
ago, and during this process, a specified hip replacement system was implanted
into her right hip.[2]



[3]        It is averred that the defendant manufactured the system that was
implanted into her hip.  It is alleged that the system was defective because
it had certain latent defects.[3]



[4]        It is further alleged that the defendant was negligent, among other
things, by ignoring specific warnings about these alleged latent defects in
the system and failing to withdraw the system from the marketplace before the
hip replacement surgery was performed on the plaintiff.[4]



[5]        Further, it is advanced that as a direct result of this negligence
on the defendant's part, the plaintiff suffered damages, and she still
suffering these damages in a not insignificant amount.[5]



[6]        The plaintiff's action is in delict and is essentially a product-
liability claim.  The defendant concedes this much.  The defendant filed a
special plea on jurisdiction and pleaded over on the merits.[6]



[7]        It was alleged that if the special plea succeeded, it would be
dispositive of the entire action.  This is the reason for separating the
jurisdiction issue from the hearing of the main action proceedings.[7]



[8]        Since the launch of the application for a separation, the plaintiff
filed a notice of intention to amend its claims against the defendant.[8]



[9]        The defendant did not oppose the amendments sought, which have
since formally been effected.[9]



_**BACKGROUND AND CONTEXT**_



[10]      The plaintiff instituted these proceedings more than a decade ago,
seeking damages from the defendant.   A medical doctor was initially cited as
the second defendant, but the action against him was subsequently withdrawn,
and the action continued against the current defendant only.[10]



[11]      As alluded to earlier, the defendant filed a special plea and
pleaded over on the merits about ten years ago.  The essence of the special
plea was that this court did not have the requisite jurisdiction over the
defendant, which was cited as a foreign company, registered abroad.[11]



[12]      By agreement and by order of this court, the special plea was
separated out for prior determination.  The defendant's special plea alleges
that this court lacks the requisite jurisdiction to entertain the plaintiff's
damages claim.[12]



[13]      The core complaint by the defendant is that the plaintiff failed to
attach property to 'found or confirm' this court's jurisdiction over the
foreign defendant company and that this is fatal to the plaintiff's action
from a jurisdictional point of view.  Thus, it is alleged that the plaintiff
is non-suited as a consequence.[13]



[14]      Firstly, I must consider and determine whether or not the defendant
submitted to the jurisdiction of this court.  If that question is answered in
the plaintiff's favour, the special plea must be dismissed.  Secondly, if
there was no submission to jurisdiction, I must determine whether or not the
plaintiff's failure to attach property to found or confirm jurisdiction is
fatal to her action.  Concerning the second issue, it is the plaintiff's case
that even if there was no submission to this court's jurisdiction, this court
is invited to apply a flexible approach to jurisdiction such that an
attachment of property to found or confirm jurisdiction, in this case, is no
longer an absolute jurisdictional requirement.[14]



[15]      The court was urged to consider issues of appropriateness and
convenience, taking into account the circumstances of this case.  The
plaintiff says this because the defendant was conducting business within the
territory of this court when the summons was served, which she says (on its
own) is sufficient to clothe this court with jurisdiction to hear and
determine these proceedings.[15]



[16]      Finally, and in the alternative, the plaintiff argues that the
common law rule necessitating an attachment to found or confirm jurisdiction
is incompatible with our current constitutional values and that I have a
constitutional duty to develop the common law to accord with these values.[16]



_**THE PLEADINGS**_



_**THE PLAINTIFF 'S CLAIMS**_



[17]      The plaintiff's particulars of claim (as amended) reflected that the
plaintiff is a veterinary nurse and she is a resident of this country.  As far
as the defendant is concerned, the following:



(a)          The defendant is DePuy Orthopaedics Inc ('_DPO_ '), DePuy
(Ireland) Limited ('_DPI_ '), and Johnson & Johnson Inc ('_J &J'_), all
foreign companies as defined in section1 of the Companies Act (and that was
the case as at 20 January 2014).



(b)          The defendant and/or DPO and/or DPI and/or Johnson & Johnson
Medical (Pty) Limited _( 'J&JM')_ and/or Orthomedics (Pty) Limited ('_OPY_ ')
and/or Orthomedics Management Company (Pty) Limited ('_OMC_ ') were subsidiary
companies of J&J and/or one or more were related to the defendant as envisaged
in section 2 of the Companies Act.



(c)          At all material times and until at least 20 January 2014, the
defendant carried on and conducted business within this Honourable Court's
area of jurisdiction at Block A, Parklane, corner of Alexander and Parklane
Roads, Pinelands, Western Cape Province, which address was its principal place
of business within the Republic and/or within this Honourable Court's area of
Jurisdiction.



(d)          In the alternative, at all material times and until at least 20
January 2014, DPO and/or DPI and/or JJM and/or OPY and/or OMC carried on and
conducted business within this Honourable Court's area of jurisdiction as the
duly authorised agent(s) of the defendant, alternatively as the duly
authorised agent of all the manufacturing companies in the J&J group of
companies for the system.[17]



[18]      Regarding the system, the plaintiff alleges that at Constantia Berg
Medi-Clinic, Dr Hanna inserted the system in the plaintiff's right hip.  The
defendant manufactured the system.[18]



[19]      Through a letter dated 6 December 2010, Dr Hanna informed the
plaintiff that the defendant was recalling the system.  On 6 April 2011, Dr
Hanna received the results of a test of the plaintiff's blood sample,
indicating a high level of microscopic metal particles in the vicinity of her
right hip.  Dr Hanna accordingly recommended surgery to replace her right hip
implant with a 'non-metal bearing and a stemmed' prosthesis.[19]



[20]      On 23 June 2011 at Constantia Berg Medi-Clinic, Dr Hanna removed the
system and implanted a coral stem with a pinnacle cup with a ceramic-on-
ceramic liner ('the prosthesis') in the plaintiff's right hip.[20]



[21]      On 3 July 2011, the prosthesis dislocated while the plaintiff was in
bed at home.  After that, under general anaesthetic, Dr Hanna, at Constantia
Berg Medi Clinic, relocated the prosthesis.[21]



[22]      On 4 July 2011, an x-ray revealed the prosthesis had again
dislocated.  On 5 July 2011, Dr Hanna inserted a dual mobility femoral head on
a polyethene internal liner in a shell on the prosthesis to attempt to
stabilise the dislocation of the prosthesis.[22]



[23]      It is alleged that as a consequence of the plaintiff's hip
implant/s, the subsequent hip revision and the subsequent insertion of the
dual mobility cup, the plaintiff: - (a) suffered (and will suffer) shock, pain
and discomfort; (b) has incurred and will in the future incur medical and
psychological expenses and, (c) has and will suffer a loss of earning capacity
because of enforced early retirement.[23]



[24]      Further, the plaintiff says these consequences are due solely to the
negligence of the defendant, who manufactured the initial latently defective
system. The pleaded claim against the defendant is for damages, interest, and
legal costs.[24]



[25]      The plaintiff also alleges that if his court finds that it does not
have the requisite jurisdiction to entertain and determine the plaintiff's
claim in terms of the common law, then I should develop the common law by
declaring that absent the attachment of property of a foreign '_peregrinus '_
to found or confirm jurisdiction considerations of appropriateness and
convenience are nonetheless be sufficient to clothe this court with the
jurisdiction in these circumstances.[25]



_**THE DEFENDANT 'S SPECIAL PLEA **_



[26]      The defendant admits to having manufactured the system.  However, in
its (amended) special plea, the defendant avers that:



(a)       The defendant is a private limited company duly registered in the
United Kingdom, and its registered address is in Leeds, West Yorkshire.



(b)       It does not have a registered office or principal place of business
within the area of jurisdiction of this Honourable Court.



(c)        The defendant is not registered as an external company, nor does it
meet the requirements to be so registered.



(d)       At all material times, the defendant did not carry on or conduct
business for profit within this Court's jurisdiction.



(e)       None of the companies listed by the plaintiff (in her amended
particulars of claim) are or were the defendant's agents in the Republic of
South Africa.



(f)        None of the said companies are '_linked '_ to the defendant.



(g)       Neither the defendant nor any of the companies referred to above are
subsidiaries of J&J.



(h)       The defendant is a foreign _peregrinus_ of the Republic.



(i)         The plaintiff should have obtained prior leave to institute these
proceedings.



(j)         The plaintiff also failed to attach any assets of the defendant in
the Republic of South Africa to found and/or confirm the jurisdiction of this
Court.[26]



[27]      The defendant's special plea avers that this court lacks
jurisdiction to entertain the plaintiff's claim.  The defendant seeks
dismissal of the plaintiff's claim with costs.  The defendant (as I understand
it) states that the plaintiff should have attached assets in this country to
find or confirm the jurisdiction of this court.[27]



_**THE PLAINTIFF 'S REPLICATION**_



[28]      The plaintiff replicated and pleaded that the defendant had, in any
event, submitted to the jurisdiction of this court by conduct before the
institution of the action because:-



(a)          The defendant implemented a recall of the system in South Africa.
In doing so, the defendant appointed Crawford and Company SA (Pty) Ltd ("C&C")
in Sandton and also local attorneys to deal with all claims regarding the
system.



(b)          In the '_Patient Consent Form_ ' that the plaintiff was requested
to complete, which was provided to her (by Dr Hanna as part of the system
recall), the defendant nominated an address in South Africa to which the form
should be returned as follows:



_(i) '…DePuy International Limited_



_(ii)        c/o Crawford and Company (SA) (Pty) Ltd Crawford House, _

_17 Muswell Road South, Bryanston 2021, South Africa_

_P.O. Box 782023, Sandton 2146, South Africa …'_



(c)     The '_Information for Patients_ ' document provided to the plaintiff
by the defendant's attorneys invited the plaintiff to contact a helpline, and
the list of telephone numbers provided included a South African contact
number.



(d)     Before the commencement of the action, the defendant's attorneys
addressed a letter to the plaintiff's attorneys wherein the defendant invited
the plaintiff to agree to a process in terms of which:



(i) the operation of prescription would be suspended but would run again after
receipt of a notice (by either party) to that effect, and



(ii) the defendant nominated South African attorneys to receive any such
notice on its behalf.



(e)          The defendant accepted service of the summons in these
proceedings (at Block A, Parklane, Corner Alexander and Parklane Road,
Pinelands) on the defendant's behalf.



(f)           By implementing the system's recall in the manner set out above,
the defendant was undoubtedly conducting business in South Africa.[28]



[29]      Accordingly, the replication asserts that the defendant
unequivocally proclaimed its willingness to submit to the jurisdiction of the
South African courts.[29]



_**THE TRIAL PARTICULARS**_



[30]      The defendant provided trial particulars to the effect that the
system manufactured by the defendant (which was initially implanted into the
plaintiff) was being distributed in this country; it was done so by the local
agent of DPI.[30]



[31]      The defendant averred that it no longer possessed a copy of this
distribution agreement.  However, the defendant admitted that it manufactured
the system.  Still, it denied having sold or distributed the system to its
agent and claimed not to know who distributed it to DPI.  Subsequently, the
defendant asserted that this sole agent sold all of its assets to DPI, who, in
turn, became the local agent of J&JM.[31]



[32]      Before the trial, the plaintiff sought an admission as to whether or
not the defendant had any property located or situated in this country at the
time of the commencement of this action.  The defendant declined to make the
admission sought by the plaintiff.[32]



_**THE PLAINTIFF 'S CASE**_



_**DR HANNA**_



[33]      He is an experienced orthopaedic surgeon who testified that he had
performed several medical procedures concerning the plaintiff's right hip.
The first procedure was resurfacing the plaintiff's right hip using the
system. The second procedure was removing and replacing the system with the
prosthesis.[33]



[34]      The third procedure was stabilising the dislocation of the
prosthesis by inserting a femoral head.   Dr Hanna testified that the barcode
removed from the system's packaging used in the first operation reflects the
defendant's name.[34]



[35]      The barcode taken from the packaging of the prosthesis used in the
second operation reflects the name of DPO.  The barcode taken from the devices
used in the third operation demonstrates the name of '_De Puy France '. _When
a device was needed locally, he would contact '_Orthomedics ' _(OM).  He said
this was the local company representing '_Depuy_ ' (DP) in Cape Town.  Dr
Hanna regarded OM as the defendant's local franchise for the products he
needed and, more importantly, for the system's supply.[35]



[36]      Concerning the system's recall, his evidence was that he was
contacted by DP requesting that he inform his patients about the recall.  DP
gave him a template letter (which he modified) and then sent it to his
patients, including the defendant.[36]



[37]      DP appointed a local company to handle South African patients.  The
local telephone number on the information for the patient document he provided
to the defendant was for this local company.[37]



[38]      Further, he testified that there was no cure for the continuing pain
and discomfort that the plaintiff experienced after the various operations she
underwent. Thus, he corroborated to a limited extent the allegations made by
the plaintiff in support of her claim for damages.[38]



_**MR WIESE**_



[39]      OM employed him, and he was involved in the local market to supply
the 'system'.  After some time, he became employed by J&JM.[39]



[40]      OM and J&JM occupied the address where the summons was initially
served.  He testified that this was the case when OM initially employed him
and later when J&JM employed him.[40]



[41]      According to him, OM was DP's exclusive local agent.  In addition,
DP provided the staff for OM.  DP was also responsible for both the online and
in-person training at OM.  OM also reported to DP abroad, where the defendant
is based.[41]



_**MS VIVIER**_



[42]      At this time, she was a candidate attorney in the employment of the
plaintiff's attorneys and testified to the accuracy of her contemporaneous
file note she had made.[42].



[43]      The filed note made by her at the time and before the summons was
served recorded the following:



'… _TC to DePuy Int. Ltd @ Pinelands_

            _spoke to Steve - their address in Pinelands is:_

            _Block A_

            _Parklands_

            _cnr of Alexander and Parklane_

            _They have merged with a company, Synthes & they are now referred to as DePuy Synthes & not DePuy International Ltd…'__**[43]**_



_**MS BLAKE**_



[44]      She is a qualified conveyancer who testified that specific
electronic searches performed by her revealed: (a) that she could find no
record of immovable property ever having been registered in the name of _DePuy
International Limited_ or DP; (b) that OM was initially incorporated as
'_DePuy S.A_.' and (c) that '_Orthomedics Management Company ' _was initially
incorporated as '_DePuy International Limited_ '.[44]



_**THE EXPERT EVIDENCE**_



[45]      The defendant initially closed its case without leading any
evidence.  The defendant thereafter applied to admit further limited evidence
confirming that the defendant was a patentee for several patents it had
registered in South Africa.  The defendant applied for leave to re-open its
case and call an expert in the field of patent law.  The plaintiff did not
oppose this application.[45]



[46]      Thereafter, the experts filed a joint minute and agreed: (a) that
the defendant was the registered patentee concerning at least two valid
patents in force when the plaintiff issued her summons; (b) that both such
patents could be attached to found or confirm jurisdiction and, (c) although
neither patent had been valued, the fact that they had been maintained on the
register and their annual renewal fees had been paid was indicative of the
patents being of sufficient nominal value to the defendant.[46]



_**CONSIDERATION**_



_**SERVICE OF THE SUMMONS**_



[47]      The return of service concerning the summons is _prima facie_
evidence that the defendant accepted service of the summons locally.  Service
at a place which is not the company's prominent place of business but is its
principal place of business in this jurisdiction constitutes good
service..[47]



[48]      Thus, at the very least, the defendant is properly before this
court.  I say this because the defendant was able to enter an appearance to
defend and file pleadings duly represented by attorneys and counsel.[48]



[49]      The defendant says that the summons was not served on the defendant
in this country and submits that the summons was only served to the
defendant's local agent in this country. This argument is challenging to
follow because the defendant's original plea was filed on behalf of DPIL and
not on behalf of J&JM.[49]



[50]      The defendant submitted that the summons was served on OM, the agent
for J&JM.  However, in the same breath, the defendant admitted that the return
of service, reflecting service of the summons, is _prima facie_ evidence of
its contents and did not present any evidence to gainsay this _prima facie_
evidence.[50]



_**SUBMISSION TO JURISDICTION**_



[51]      A submission to the jurisdiction of this court by a foreign
_peregrinus_ defendant in an action brought by an _incola_ plaintiff is
sufficient for the court to assume jurisdiction.[51]



[52]      Whether this has occurred is a factual question to be considered by
this court.  Thus, I must consider whether the cumulative effect of all the
facts proved has established submission to this court's jurisdiction on a
balance of probabilities.[52]



[53]      The onus in this case rests with the plaintiff.  Thus, the plaintiff
must establish that the defendant has submitted or consented to jurisdiction
by conduct consistent with acquiescence and the test is objective.[53]



[54]      In this connection, the plaintiff contends for the following facts:
(a) the defendant implemented the recall of the system in South Africa, (b)
the defendant supplied a template letter which was addressed to the plaintiff
in this country, (c) attached to this letter was a 'patient consent form' to
be completed and filed in this country (d) the defendant undertook to pay for
the examination and any medical follow up in this country, and (e) the
defendant recorded the intention to cover all the reasonable and customary
costs of testing and remedial treatment if required, including revision
surgery associated with the system recall in this country.[54]



[55]      In addition, a helpline was established in this country, and the
defendant appointed _a_ local company and local attorneys to deal with claims
about the system[55].



[56]      Most importantly, after the plaintiff's revision surgery, some money
was reimbursed locally on behalf of the defendant, albeit with no admission of
liability. The entire recall implementation occurred in this country.
Finally, the attorneys for the defendant recorded the defendant's willingness
to submit to our law and process.[56]  



[57]      The plaintiff's primary case is that when these facts are considered
together, the defendant's unequivocal conduct demonstrates a clear intention
by the defendant to submit to this court's jurisdiction.[57]



[58]      I am in wholesale agreement with this argument.  However, even if I
am wrong on this score, this court has jurisdiction to determine this matter
for several other reasons.  I say this because our law has developed to the
point where a court must examine whether the forum sought to be employed has a
'real and substantial' connection with the action regarding the relevant
connecting factors that tie the action to the forum in question.  Put another
way, the attachment of property to found or confirm jurisdiction is no longer
an absolute requirement in suits against foreign _peregrini_.[58]



[59]      The defendant wisely conceded that an attachment is no longer an
absolute requirement in suits against foreign _peregrini_ where the summons
was served on the defendant in this country and where an attachment of
property is impossible.[59]  



[60]      Thus, this is precisely where the factual dispute between the
plaintiff and the defendant is narrowly located.  The plaintiff's case is that
the summons was served on the defendant locally and that no attachment of
property in this country of any 'saleable value' was possible when the summons
was served. The defendant disputes this.  I now analyse some undisputed and
disputed facts concerning the connecting factors that may or may not serve to
tie the action to the forum in question.  The plaintiff is an _incola_ of this
court.  That was the case when the system was sold and implanted into her, and
this remained so when the system's failure manifested.[60]



[61]      The delict that is the subject matter of these proceedings was
committed within the territorial confines of the jurisdiction of this court.
A local company supplied the system to the plaintiff.[61]



[62]      The first operation to implant the system occurred at a local
medical facility. When the system failed, the plaintiff was an _incola_ of
this court.  Two further remedial procedures followed, which took place at
local medical facilities.  At common law, a court has jurisdiction in
proceedings based on delict if it occurs or is committed in its
jurisdiction.[62]



[63]      Thus, it is challenging to avoid the conclusion that this court is
the forum with which the action has a fundamental and substantial connection.
I say this because, in its essential features, the plaintiff's claim is a
defective product claim in delict.[63]



[64]      I say this also because the place or location of the commission of a
delict in a product liability case is to be determined concerning where the
harm was inflicted.[64]



[65]      The defendant advances that our jurisprudence dictates that there is
no need to attach property when the summons was served on the foreign
_peregrine_ defendant in this country where an attachment of property is
impossible.[65]



[66]      This argument advanced by the defendant bears more scrutiny.  I say
this because of the peculiar facts of this case.  The plaintiff submits that
no attachment of property of any 'saleable value' was possible when the
summons was served on the defendant.[66]



[67]      It is common cause that when the summons was served, the defendant
had some interests in two registered patents.  Further, the patents were of
nominal value (as agreed).  As I understand the evidence, the defendant's
interests in the two patents had no saleable value.  Thus, any attachment by
the plaintiff would have been meaningless and served no purpose.[67]



[68]      In connection with these interests in the registered patents, the
defendant nominated local addresses for the two patents to be registered in
its name.  Thus, the defendant undoubtedly had a physical presence locally
through its agents.[68]



[69]      Even if I am wrong in my interpretation and analysis of our current
jurisprudence on this issue, the peculiar facts of this case dictate that the
common law regarding jurisdiction needs to be developed.  We live in a
technology-driven society, and more global international businesses with no
boundaries are being developed.[69]



[70]      Thus, as a matter of pure logic, the common law should be adopted
and adapted to modern customs and practices of international trade.  In
developing the common law, considerations of appropriateness and convenience
may sufficiently dilute and erode the doctrine of effectiveness as pre-eminent
in questions relating to jurisdiction over foreign defendants.[70]



[71]      The common law should be developed insofar as monetary claims
against the defendant in this case are concerned.  The peculiar facts of this
case dictate that the common law regarding jurisdiction falls to be expanded
and developed to benefit this plaintiff.  Thus, the special plea on
jurisdiction should fail.[71]



[72]      I make the following order:



1.      The special plea on jurisdiction is dismissed.



2.      The defendant shall be liable for the costs of an incidental to the determination of the special plea on jurisdiction.



3.      The costs shall be on the scale as between party and party and shall include the costs of two counsel (where so employed) on Scale C.





**E D WILLE**

**CAPE TOWN**





**_COURT APPEARANCES_ :**



_FOR AND ON BEHALF OF THE PLAINTIFF_



S OLIVIER S.C. AND WITH HIM J ORD



_INSTRUCTED BY_



A BATCHELOR AND ASSOCIATES



_FOR AND ON BEHALF OF THE DEFENDANT_



B MANCA S.C.



_INSTRUCTED BY_



FASKEN INCORPORATED

  

* * *

[1]   The defendant submitted that this court had no jurisdiction to determine
the action proceedings,

[2]   This system was known as the 'ASR Hip Resurfacing System' (the
"system").

[3]   The defendant recalled the system because of latent defects.

[4]   The system implanted into the plaintiff had to subsequently be removed
from the plaintiff.

[5]   The plaintiff alleges damages in the sum of R8 041 376,15.

[6]   The defendant took the position that this court did not have
jurisdiction to determine this dispute.

[7]   The parties agreed that the special plea be adjudicated first.

[8]   The plaintiff filed a number of amendments relating to the citation of
the defendant.

[9]   The proposed amendments have since been formally effected in terms of
the court rules.

[10]  The proceedings against the medical practitioner were resolved.

[11]  The plaintiff's amendments sought to rectify this alleged jurisdictional
issue.

[12]  By agreement an order was granted by the court on 13 June 2023.

[13]  The defendant pleaded that the defendant could not be regarded as a
foreign company conducting business in this country following section 23(2) of
Act 71 of 2008 (the 'Companies Act').

[14]  The court was asked to develop the common law (if required).

[15]  The plaintiff says this is a factual issue to be determined in her
favour.

[16]  This, if I find for the defendant on the other jurisdictional shields
raised by the defendant.

[17]  For all their Hip Resurfacing Systems.

[18]  This was not the subject of any dispute.

[19]  This was the second hip replacement surgery performed on the plaintiff.

[20]  This was a hip replacement manufactured from a totally different type of
material.

[21]  This was then the third surgical operation performed on the plaintiff.

[22]  Another surgical procedure followed.

[23]  These allegations are made in support of the damages claim to the sum of
R8 041 376,15.

[24]  The damages allegedly suffered have been separately pleaded.

[25]  This is the alternative claim by the plaintiff regarding jurisdiction.

[26]  This is the core shield raised by the defendant.

[27]  This is the focus of the defendant's special plea on jurisdiction.

[28]  These factual allegations were not materially engaged with by the
defendant.

[29]  These averments are made with reference to the surrounding factual
circumstances.

[30]  "Orthomedics" was recorded as the exclusive agent for DPI in South
Africa.

[31]  Johnson and Johnson Medical.

[32]  This was recorded in the defendant's "Response to Request for
Admissions".

[33]  This was in connection with the system that was recalled due to latent
defects.

[34]  This was not the subject of any dispute.

[35]  Similarly, this was not the subject of any dispute.

[36]  This evidence was not disputed.

[37]  Crawford & Company (SA) (Pty) Ltd.

[38]  However, accepting this was not the purpose for which his evidence was
tendered..

[39]  During 2011.

[40]  Block A, Parklane, Corner Alexander & Parklane Road, Pinelands.

[41]  In Leeds in the United Kingdom.

[42]  Dated 13 January 2014.

[43]  This was a record of a contemporaneous note made by the witness.

[44]  In 1991.

[45]  The parties agreed that they could each present expert evidence on this
limited issue.

[46]  The parties agreed on the issue of nominal value and not on the issue of
saleable value.

[47]  Federated Ins Co Ltd v Malawana 1986 (1) 729 (AD) at 758H-759H.

[48]  Investec Property Fund Limited v Viker X (Pty) Limited 2016 JDR 0904
(GJ) paragraph 11-13.

[49]  Article 1.11 of the "Unidroit Principles of International Commercial
Contracts (2016)" provides that where a party has more than one place of
business the relevant place of business is that which has the closest
relationship to the contract and its performance.

[50]  The defendant did not present any _viva voce_ evidence in this
connection.

[51]  Ingosstrakh v Global Aviation Investments (Pty) Ltd & Others [2021 (6)
SA 352](/cgi-bin/LawCite?cit=2021%20%286%29%20SA%20352 "View LawCiteRecord")
(SCA) at paragraphs 29 to 47.

[52]  Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty)
Ltd [2005 (2) SA 522](/cgi-bin/LawCite?cit=2005%20%282%29%20SA%20522 "View
LawCiteRecord") SCA at paragraph 13.

[53]  National Arts Council and another v Minister of Arts and Culture and
another [2006 (1) SA 215](/cgi-bin/LawCite?cit=2006%20%281%29%20SA%20215 "View
LawCiteRecord") (C) at paragraphs 37 to 38.

[54]  These were all offers and tenders to accepted and performed in this
country.

[55]  Crawford and Company SA (Pty) Ltd.

[56]  Compensation was based on South African Law and process.

[57]  National Arts Council and Another v Minister of Arts and Culture and
Another [2006 (1) SA 215](/cgi-bin/LawCite?cit=2006%20%281%29%20SA%20215 "View
LawCiteRecord") (C) at paragraphs 37 to 38.

[58]  Competition Commission v Bank of America Merrill Lynch International Ltd
and Others [2020 (4) SA 105](/cgi-bin/LawCite?cit=2020%20%284%29%20SA%20105
"View LawCiteRecord") (CAC) at paragraph 51.

[59]  This was conceded in the heads of argument filed on behalf of the
defendant.

[60]  The plaintiff was also an _incola_ of this court when these proceedings
commenced.

[61]  Orthomedics (Pty) Ltd was registered in Pinelands in the Republic of
South Africa.

[62]  These facts are not disputed by the defendant.

[63]  Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd 2011 (4) SA 276
(SCA).

[64]  Thomas v BMW South Africa (Pty) Ltd [1996 (2) SA 106](/cgi-
bin/LawCite?cit=1996%20%282%29%20SA%20106 "View LawCiteRecord") (C).

[65]  As per the defendant's heads of argument (delivered on 23 November 2023)
at paragraph 28.

[66]  The summons was served in Cape Town during January 2014.

[67]  Schmidt v Weaving [[2008] ZASCA
123](http://www.saflii.org/za/cases/ZASCA/2008/123.html "View Case"); [2009
(1) SA 170](/cgi-bin/LawCite?cit=2009%20%281%29%20SA%20170 "View
LawCiteRecord") (SCA) at paragraph 23.

[68]  Lin and Another v Minister of Home Affairs and Others 2015 (4) SA 197
(GJ).

[69]  Richman v Ben-Tovim [2007 (2) SA 283](/cgi-
bin/LawCite?cit=2007%20%282%29%20SA%20283 "View LawCiteRecord") (SCA) at
paragraph 9.

[70]  Vedanta Resources Holdings Limited v ZCCM Investment Holdings PLC 2019
JDR 1425 (GJ).

[71]  All the surrounding circumstances and facts are overwhelmingly to the
benefit of the plaintiff.

  

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