LML4806 ACTUAL EXAM
2026/2027: 100% Verified Questions
& Correct Answers
QUESTION 1
Problem
Bheki (Pty) Ltd, a South African-registered micro-lender, advanced R2 million to a Botswana
company, Kgalagadi Explorations (Pty) Ltd (“Kgalagadi”), repayable in 24 equal monthly
instalments. The loan agreement, concluded in Johannesburg, is expressly governed by South
African law and contains a South African exclusive-jurisdiction clause. Kgalagadi has paid only the
first four instalments. Bheki wishes to sue in South Africa for the arrears. Kgalagadi contends that
the South African courts lack jurisdiction because the cause of action arose in Botswana, the
money was disbursed from a Botswana bank, and enforcement of any South African judgment
would have to occur in Botswana.
Discuss, with reference to authority, whether the South Gauteng High Court has jurisdiction to hear
the matter and what practical hurdles Bheki may face in enforcing any judgment.
MODEL ANSWER – QUESTION 1
, Issue
Whether the South Gauteng High Court has jurisdiction over a claim against a foreign company
where the agreement is governed by South African law and contains an exclusive-jurisdiction
clause, and what enforcement obstacles exist.
Rule
1. Jurisdiction in personam is founded on the court’s ability to serve the defendant with
process. A foreign company may be sued in South Africa if there is sufficient nexus to the
jurisdiction (Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA)).
2. An exclusive-jurisdiction clause is prima facie enforceable under the doctrine of election
(Castell v De Greef 1994 (4) SA 408 (C)) and forum non conveniens principles (Eke v
Parsons 2016 (3) SA 37 (CC)).
3. Enforcement of a South African judgment in a foreign state depends on bilateral treaties or
statutory reciprocity (e.g., Foreign Judgments Enforcement Act 32 of 1988 does not list
Botswana).
Application
● Nexus: The agreement was concluded in Johannesburg, is governed by South African law,
and contains an exclusive-jurisdiction clause. These factors create a clear nexus to South
Africa.
● Service: Kgalagadi can be served outside South Africa under Uniform Rule 4(1)(b) read
with r 4(2) – cause of action “arises within the area of jurisdiction” (performance obligation
booked in Johannesburg) and the contract contains a South African governing-law clause.
● Forum non conveniens: The defendant must show another forum is clearly more
appropriate. The exclusive clause and governing-law choice are weighty factors (Kudu
Granite). Mere inconvenience of enforcement does not oust jurisdiction.
Enforcement hurdles
Botswana is not a designated country under the Foreign Judgments Enforcement Act. Bheki would
have to launch fresh proceedings in Botswana under common-law principles, proving the South
African court had competent jurisdiction and that the judgment is final and conclusive (Jones v Krok
1995 (1) SA 677 (A)).
2026/2027: 100% Verified Questions
& Correct Answers
QUESTION 1
Problem
Bheki (Pty) Ltd, a South African-registered micro-lender, advanced R2 million to a Botswana
company, Kgalagadi Explorations (Pty) Ltd (“Kgalagadi”), repayable in 24 equal monthly
instalments. The loan agreement, concluded in Johannesburg, is expressly governed by South
African law and contains a South African exclusive-jurisdiction clause. Kgalagadi has paid only the
first four instalments. Bheki wishes to sue in South Africa for the arrears. Kgalagadi contends that
the South African courts lack jurisdiction because the cause of action arose in Botswana, the
money was disbursed from a Botswana bank, and enforcement of any South African judgment
would have to occur in Botswana.
Discuss, with reference to authority, whether the South Gauteng High Court has jurisdiction to hear
the matter and what practical hurdles Bheki may face in enforcing any judgment.
MODEL ANSWER – QUESTION 1
, Issue
Whether the South Gauteng High Court has jurisdiction over a claim against a foreign company
where the agreement is governed by South African law and contains an exclusive-jurisdiction
clause, and what enforcement obstacles exist.
Rule
1. Jurisdiction in personam is founded on the court’s ability to serve the defendant with
process. A foreign company may be sued in South Africa if there is sufficient nexus to the
jurisdiction (Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA)).
2. An exclusive-jurisdiction clause is prima facie enforceable under the doctrine of election
(Castell v De Greef 1994 (4) SA 408 (C)) and forum non conveniens principles (Eke v
Parsons 2016 (3) SA 37 (CC)).
3. Enforcement of a South African judgment in a foreign state depends on bilateral treaties or
statutory reciprocity (e.g., Foreign Judgments Enforcement Act 32 of 1988 does not list
Botswana).
Application
● Nexus: The agreement was concluded in Johannesburg, is governed by South African law,
and contains an exclusive-jurisdiction clause. These factors create a clear nexus to South
Africa.
● Service: Kgalagadi can be served outside South Africa under Uniform Rule 4(1)(b) read
with r 4(2) – cause of action “arises within the area of jurisdiction” (performance obligation
booked in Johannesburg) and the contract contains a South African governing-law clause.
● Forum non conveniens: The defendant must show another forum is clearly more
appropriate. The exclusive clause and governing-law choice are weighty factors (Kudu
Granite). Mere inconvenience of enforcement does not oust jurisdiction.
Enforcement hurdles
Botswana is not a designated country under the Foreign Judgments Enforcement Act. Bheki would
have to launch fresh proceedings in Botswana under common-law principles, proving the South
African court had competent jurisdiction and that the judgment is final and conclusive (Jones v Krok
1995 (1) SA 677 (A)).
