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Thread: Default Received summons - how do I change hearing to another magisterial district?

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    Default Received summons - how do I change hearing to another magisterial district?

    I am engaged in a civil dispute.

    I live in the Cape, but received summons to appear in a court in Gauteng.

    Normally, the court hearing is where the Defendant resides, unless there is a compelling reason otherwise eg the incident took place in anther magisterial district. For example, if you assaulted somebody in a bar in Parys, then that is where the case will be heard irrespective of the fact that you live in Cape Town.

    In my particular case, I sent an email from my home in the Cape to this person in Gauteng. His attorney is now claiming that this email was "published" in Gauteng because that is where the recipient read it on his computer, and thus the court in Gauteng MUST have jurisdiction.

    My contention is that the email was "published" in the Cape (when I sent it), and thus the court hearing should properly - and more naturally - be in MY home town.

    How should this be handled? What are the issues that the court would consider in coming to a decision in this regard? (eg the Defendant has no money for travel; the issues is not serious enough that it MUST be compelled to be at the Plaintiff's court?).

    Obviously, the Plaintiff will always want the convenience of having a hearing at "his" court, and will naturally apply for that if he can get away with it. So, how to fight this??

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    Gold Member Houses4Rent's Avatar
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    So you get sued for sending an email? The jurisdiction is usually determined in the terms and conditions of the underlying transaction I would say.
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    Gold Member Martinco's Avatar
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    Hell..........you can be glad you did not send it to a guy in Iceland !
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    Diamond Member HR Solutions's Avatar
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    Oh heck ............ that e mail must have been quite "harsh" then hey ......
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    Platinum Member sterne.law@gmail.com's Avatar
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    I'll respond later about the actual jurisdiction regarding email.
    In the interim, the defendants residence is but one manner by which jurisdiction is considered.
    Where a cause of action arises is also a manner to give jurisdiction.
    The plaintiff gets to determine where he wants to institute action, provided one of the grounds of jurisdiction is linked to that area.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Quote Originally Posted by sterne.law@gmail.com View Post
    I'll respond later about the actual jurisdiction regarding email.
    In the interim, the defendants residence is but one manner by which jurisdiction is considered.
    Where a cause of action arises is also a manner to give jurisdiction.
    The plaintiff gets to determine where he wants to institute action, provided one of the grounds of jurisdiction is linked to that area.
    Thanks for this response.

    All the action was between my computer in the Cape and his computer in Gauteng. Since he is the one objecting to the content of my email, it would appear that all the action took place in the Cape - which also happens to be the place of residence of the Defendant.

    But there is more ... (yes -this really does get better by the day!):

    It is, as I understand, quite permissible to write a defamatory email (or letter) to a person. The recipient might not like it of course, but by itself, such a communication is not sueable.

    But here comes the technically interesting bit:

    The original email was sent ONLY to the recipient (the plaintiff) - and therefore apparently not a problem legally, but when HE replied, HE COPIED his reply ALSO to two associates. And when I then replied back to the plaintiff, I automatically cc'd the two associates. They had apparently been DELIBERATELY and unecessarily brought into the communication by the plaintiff. When they then saw my reply, they claim to be shocked at the allegations (yes, they are eye-popping!), and the plaintiff now claims his reputation has been damaged in front of his associates as a direct result of them seeing this email.

    So, the big question for the professionals here:
    What would be the better tactical defence? To argue that the email was a private matter meant only for him, and that his inclusion of his associates had been his own doing, but had not altered the essential privacy of the communication as originally intended by the defendant??

    Obviously, the real best defence is that my allegations are provably true (and indeed they are).

    But one should never come to a gunfight with just one bullet, huh? So, I am looking for the whole range of options to deploy.

    All suggestions most welcome.

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    Site Caretaker Dave A's Avatar
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    I was hoping the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002) might help clear things up, but:

    Section 90 deals with Jurisdiction and reads as follows:

    A court in the Republic trying an offence in terms of this Act has jurisdiction where –

    a)the offence was committed in the Republic;

    b)any act of preparation towards the offence or any part of the offence was committed in the Republic, or where any result of the offence has had an effect in the Republic;

    c)the offence was committed by a South African citizen or a person with permanent residence in the Republic or by a person carrying on business in the Republic; or

    d)the offence was committed on board any ship or aircraft registered in the Republic or on a voyage or flight to or from the Republic at the time that the offence was committed.
    That doesn't exactly narrow things down much.

    Then there is Section 22 - Formation and validity of agreements
    1)An agreement is not without legal force and effect merely because it was concluded partly or in whole by means of data messages.

    2)An agreement concluded between parties by means of data messages is concluded at the time when and place where the acceptance of the offer was received by the offeror.
    Probably not applicable in the instance where the communication is slander or libel, but interesting nonetheless when it comes to offers and acceptance (mentally filing that one away for my own possible use one day )

    The argument on publication being on the machine of the recipient would seem likely to fail, though. The norm is that the publisher of online content where there is no pre-publishing editorial control is essentially the person who generates and posts the content (not where it is stored or hosted, and certainly not where it is read).
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    Defamation is defined as the intentional publication of words or behavior concerning another which has the tendency to harm their good name or reputation.
    Defamation via internet must still meet standard the elements of delict.
    There can only be defamation where a THIRD person comes to know of the words/actions.

    A plaintiff must prove publication (that is a third person has become aware of the act and content)
    Publication can occur in various forms (speech, print, suggestion (innuendo). it includes posting a defamatory message on a bulletin board, in a forum, file transfer, video conferencing and email

    Publication can also be presumed - where it can be expected that people will read or hear the words, eg, a bulletin board or forum. (In other words, whilst there is no direct evidence that the words came to the attention of others, it is most probable that it will.)

    With regards to email, it is considered to be published once the THIRD party opens, unzips or reads the email.
    This presumption can be rebutted if the file is encrypted or does not reach the recipient.

    Once publication has occurred, then the delictual element is alive, and a cause of action arises. That cause therefore arrives WHERE publication took place.
    A new cause of action arises for every publication (hence internet based defamation claims are potentially hazardous)

    To return to the question posted - the Plaintiff can institute in Gauteng given that the publication occurred there.
    Of course, because that particular publication, did not come to the attention of a third party it does not complete the required steps of a delictual claim.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    CLIVE-TRIANGLE (03-Jul-14), Greig Whitton (04-Jul-14)

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by sterne.law@gmail.com View Post
    With regards to email, it is considered to be published once the THIRD party opens, unzips or reads the email.
    This presumption can be rebutted if the file is encrypted or does not reach the recipient.

    Once publication has occurred, then the delictual element is alive, and a cause of action arises. That cause therefore arrives WHERE publication took place.
    A new cause of action arises for every publication (hence internet based defamation claims are potentially hazardous)

    To return to the question posted - the Plaintiff can institute in Gauteng given that the publication occurred there.
    Of course, because that particular publication, did not come to the attention of a third party it does not complete the required steps of a delictual claim.
    So if the 3rd party opens the email in London, the action can be instituted in London, despite the plaintiff and defendant being in SA?
    Last edited by Dave A; 03-Jul-14 at 10:11 AM.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    If third party is in London, then yes, they can institute there or in SA.
    the damage event occurs in London, that is the link that confirms jurisdiction.

    the interesting part of such a scenario would be for instance - I open the email in USA, now I can choose to sue in USA or South Africa. I would choose USA because you can get punitive damages there (read: BIGGER awards). In other words you choose the country with the legal system that best suits you.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  13. Thanks given for this post:

    Greig Whitton (04-Jul-14)

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