# Regulatory Compliance Category > General Regulatory Compliance Forum >  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??

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## 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.

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## Martinco

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

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## HR Solutions

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

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## 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.

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Greig Whitton (02-Jul-14)

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## 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.

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## Dave A

:Hmmm:  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  :Stick Out Tongue:  )

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).

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## 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.

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

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## 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?

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## 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.

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Greig Whitton (04-Jul-14)

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## 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.)
> 
> ...


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!

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## Houses4Rent

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

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## 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.

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## 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.

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## 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  :Wink: 

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.

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## sterne.law@gmail.com

Publication in regards to e commerce carries a different meaning to the dictionary meaning.
At the risk of over simplifying, the harm to reputation can only occur once a third party gets knowledge.
The word publcation in ecommerce should probably be understood against the technical background.
Once I send an email it bounces from router to router, theoretically it is out there at a third party. Clearly though, it can't cause harm to reputation. 
Also, a data message actually gets broken down into pockets of data that bounce around. So when an email is sent, it gets broken up, so it can't be harmful because it is, essentially encrypted, therefore can't be read. It's this technical issue that differentiates internet legal principles from others.


In the book example, even if 1 million books were sold, but not a single one was read, then there can be no reputation harm, and therefore no damage.

Fair comment v defamation
Not every post is defamation. There is opinion and of course the truth. Also a journalist might publish an untruthful fact, but not be held liable because he took nr necessary steps to check, despite which the truth was not uncovered.

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## jonnoxx

> Publication in regards to e commerce carries a different meaning to the dictionary meaning.
> At the risk of over simplifying, the harm to reputation can only occur once a third party gets knowledge.
> The word publcation in ecommerce should probably be understood against the technical background.
> Once I send an email it bounces from router to router, theoretically it is out there at a third party. Clearly though, it can't cause harm to reputation. 
> Also, a data message actually gets broken down into pockets of data that bounce around. So when an email is sent, it gets broken up, so it can't be harmful because it is, essentially encrypted, therefore can't be read. It's this technical issue that differentiates internet legal principles from others.
> 
> 
> In the book example, even if 1 million books were sold, but not a single one was read, then there can be no reputation harm, and therefore no damage.


Quiet agreed.

But the book analogy is still strong.

Just like an email can "bounce around from router to router", so too can a book "bounce around from warehouse to warehouse".  Just like an email is "encrypted and cannot be read", so too is exactly the same situation for the book.  For example, the book can be enclosed in a parcel, and would not be able to be read by any third party - unless it was purposefully hacked (ie the parcel was deliberately ripped open).  While the book is safely enclosed in the parcel, it can't be harmful - because it cannot be read.  Just like an email!  

This analogy seems to have very good legs!  So now we can come back to the issue of "publication".  It clearly wasn't "published" when the parcel was eventually opened and legitimately read.  It was published, in the case of the book example, in 2000 in New York.  And in the case of the email example, when, and from where, it was sent.  The time and place of reading a book - or an email - is irrelevant to the time and place of original publication.

Counter-arguments would be ... ???


And

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## sterne.law@gmail.com

In books the word publishing has a very specific meaning.
Perhaps it's better to ignore this word in the overall discussion.
Damage only occurs when a third party gets to know of it.
Therefore, the book is published, when the publisher releases it.
Damage occurs when a third party reads the book.

Rather than hang onto A single word one should return to the crux of when and where a claim can arise. That is only when the information comes to the knowledge of a third party.

So the book is published in London. A potential damages claim arises in New York when the first book is purchased.
The writer can be sued, and the actual publisher.

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## Dave A

> Counter-arguments would be ... ???


At the end of the day, the major issue at hand is defending the action against you  :Wink:

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## sterne.law@gmail.com

> At the end of the day, the major issue at hand is defending the action against you


The first email was not damage causing as it was not sent nor intended to reach a third party.
The recipient sent it to others.
The issue is the second email, which was sent to others. This could be damage causing as it was sent to third parties. This tempered by Tehran fact that the intended recipient had drawn those others in.
Whether damage flows from the second email would turn to a large extend on the content and it's relAtion to the first email.
If get second email was a continuation of the allegations and thought patterns of the first then it is unlikely to hold up.
If it  is totally new, then it may be a cause for action. However, damage to reputation is calculated on what was said and where and how many heard about it.
An arrest televised would clearly be more damaging than 10 cop cars getting you at home.
Against this background, give the recipient sent on to others, it would be unlikely that he suffered reputation harm.
Given that summons has been served, you need to put in an opposition notice and start going through the processes.
In the interim I would have a letter sent setting out that this seems a frivolous law suit and you will seek an adverse costs order.
Importantly, if the summons does NOT refer to the email being sent to others, then you should except to the summons as not establishing a cause of action.

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## jonnoxx

> The first email was not damage causing as it was not sent nor intended to reach a third party.
> The recipient sent it to others.
> The issue is the second email, which was sent to others. This could be damage causing as it was sent to third parties. This tempered by Tehran fact that the intended recipient had drawn those others in.
> Whether damage flows from the second email would turn to a large extend on the content and it's relAtion to the first email.
> If get second email was a continuation of the allegations and thought patterns of the first then it is unlikely to hold up.
> 
> 
> If it  is totally new, then it may be a cause for action. However, damage to reputation is calculated on what was said and where and how many heard about it.
> An arrest televised would clearly be more damaging than 10 cop cars getting you at home.
> ...


Thanks very much for this insight.  Could not agree more.  And I have already issued notice to defend, and begun working on the pleadings (hence the reason I popped up on this forum).

But ... there is more ...

I have emailed the "Notice to Defend" to the Plaintiff's attorneys, and asked them to stamp it to confirm receipt, so I can then fax this "_confirmed-receipt_" to the clerk of the court.

BUT ... 

The Plaintiff's attorney's are now delaying sending this confirmation back to me because they are "_waiting on further instruction from their client_".

Hang on ...

Now, yes, I do understand that I don't actually legally need to get this voluntary proof that I am asking for.  I could - and may still just have to do it anyway - just fax my Notice to the clerk of the court accompanied by proof that I had delivered copy of same to the Plaintiff's attorneys.

But this is not the normally expected development.  It appears to be a sign that all is not well at the Plaintiff's attorneys?  That ... maybe ...  this summons was just a bluff.

I have previously warned the plaintiff and his attorneys, that taking this matter to court will be a very ill-considered move - because the adverse publicity will blow up in his own face.  I have always sought to come to a mutually amicable agreement in regard to this matter, and have sought to provide the plaintiff with a face-saving mechanism - for his own reputation - to resolve this impasse.  All such entreaties have been spurned.

So airing this matter in open court will be an opportunity for me to lance this scandal once and for all.

But now, it appears from this hesitation, that he's having second thoughts.  And genuinely, I'm glad that sensible wisdom is - at last - coming into the picture.  

Obviously he can withdraw  the case.  But what can I then do to recover my costs, and try to force this issue to a finality that suits me ie he is forced to agree my allegations have substance, and apologizes for them, and complies with any reasonable directive I would wish to impose as a precondition to accepting his apology???

I can file a counterclaim - but would that be the best strategy?

Yes, this is definitely Sunday Times material.  And we are heading there - just getting all the ducks in a nice neat row, and having to chase the others from hiding in the bushes.

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## sterne.law@gmail.com

I would not worry to much about the notice issue.
The responding pleading anyway needs to be served by sheriff.
If they withdraw the matter then you can seek costs.

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