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

[jonnoxx]

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??

[Houses4Rent]

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.

[Martinco]

Hell..........you can be glad you did not send it to a guy in Iceland !

[HR Solutions]

Oh heck ............ that e mail must have been quite "harsh" then hey ......

[sterne.law@gmail.com]

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.

[jonnoxx]

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.

[Dave A]

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).

[sterne.law@gmail.com]

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.

[Dave A]

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?

[sterne.law@gmail.com]

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.

[jonnoxx]

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.

I see the "place" of publication differently. Let me explain by analogy:

An author writes a story and gives the manuscript to his agent, and the book is "published" in (say) New York in (say) 2000.

Many years later, a person walks into a bookstore in London, sees the book for the first time, and buys it. And at that point only, this new reader becomes aware of the contents of the book for the first time. (he could have heard about it elsewhere before, but for the purpose of discussion here, we stick to these assumptions for the simplest case, merely to make the point)

It will be - and this is my assumption - that the commonly accepted understanding would be that the book was published in New York - and ONLY there. And that it was published in 2000. The fact that the reader opened the book for the first time in some other place does not change the place of publication or time of original publication??

As I understand it from this analogy then, "publication" occurs when you "release" a communication (book or email) into the wild ie you have no more control over it. In the case of an email, "publication" therefor would seem to occur when, and from where, you "send" it. The fact that a reader at his computer may observe the communication at another time or different place is irrelevant. Even if he was flying over international waters on the way to Tokyo does not change this?

Yes/No???

I stand to be corrected, and will take my pain!

[Houses4Rent]

Wait a second. Any articel about a scam or other bad people and bad things are then defamation???

[Dave A]

Wait a second. Any articel about a scam or other bad people and bad things are then defamation???

There is a fine line between defamation and fair comment. To a large extent, it depends how you go about.

As I understand it from this analogy then, "publication" occurs when you "release" a communication (book or email) into the wild ie you have no more control over it. In the case of an email, "publication" therefor would seem to occur when, and from where, you "send" it.

That certainly is the case when it come to posting onto social media. It would seem the issue is treated differently when it comes to email, though - probably because the recipients are "targeted" / known.

[jonnoxx]

There is a fine line between defamation and fair comment. To a large extent, it depends how you go about.


That certainly is the case when it come to posting onto social media. It would seem the issue is treated differently when it comes to email, though.

Have you get a nice example to illustrate the difference of email, Dave?

I think a previous comment may have conflated two separate, and very different issues: the one being what is meant by "publication", and other when "defamation" can be brought into play. In the latter, defamation can only be complained about when a third party is brought into the picture. But this has got nothing to do with the issue of "publication" - which is a different matter altogether.

[Dave A]

I think a previous comment may have conflated two separate, and very different issues:

I think the risk we both run is conflating the two uses of "publication" as they are applied in this thread

First, I trust Anthony's opinion in matters legal, so without hard evidence to the contrary, I suggest Anthony's posts are accepted as fact in this.

In considering the merits, I think we should recognise there is a fundamental difference between email communication, which is ordinarily sent to known recipients, vs social media which is essentially a broadcast form of communication.