Letters to the editor

December 1st, 2016
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Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

 

Interpretation and drafting of domicilium provisions

Domicilium provisions in contracts are largely considered to be standard provisions, which are often copied and pasted from one contract to another. A majority of contracts contain some form of a domicilium provision, which in turn sets out the manner in which notices and processes are delivered to the parties to the contract. These provisions can either relate to the service of judicial processes (such as a summons) or contractual notices. Judicial processes and contractual notices can either be dealt with separately or be bundled into a single provision, which the courts have dubbed as a ‘double provision’ (see for example: Loryan (Pty) Ltd v Solarsh Tea and Coffee (Pty) Ltd [1984] 3 All SA 625 (W) at 641; Muller v Mulbarton Gardens (Pty) Ltd [1972] 1 All SA 190 (W) at 197; and SA Wimpy (Pty) Ltd v Tzouras 1977 (4) SA 244 (W) at 247). The way in which a provision is drafted will determine whether it is a double provision or not.

The manner in which a domicilium provision is drafted will also influence the requirements of the service of a summons. This was confirmed on appeal by Shepard v Emmerich 2015 (3) SA 309 (GJ).

In that case, the domicilium provision required that the summons should be addressed to a specific person and served on the second floor of the building. It read: ‘Routledge Modise Moss Morris, 2 Pybus Road, Sandton (Marked for D Janks 2nd Floor).’

The appellant served the summons on the first floor of the building and was not marked for the attention of D Janks. The service did not strictly comply with the provisions of the domicilium provision and the question on appeal was whether the summons was properly served.

The issue pivoted around how the domicilium provision was drafted and whether the summons had been properly served. The court a quo found that where there was a specific method of service that was contractually agreed, it should be strictly complied with. The court a quo cited three foreign cases to support this argument, namely, McMullen Group Holdings Ltd v Harwood [2011] CSOH 132; Anglian Water Services Ltd v Liang O’Rourke Utilities Ltd [2010] EWHC 1529 (TCC); and Argo Capital Investors Fund SPC for Argo Global Special Situtations Fund SP v Essar Steel Ltd [2005] EWHC 2587 (Comm). The Appeal Court found the court a quo’s argument to be persuasive. Also, the court found that there was nothing that prevented the appellant from complying with the requirements of the domicilium provision. The appellant did not adhere to the requirements of the contractually agreed method of service and the service of the summons was found to be defective. The appeal was dismissed.

This case illustrates that the way in which a domicilium provision is drafted could have an impact in the manner in which the provision is interpreted and ultimately enforced. Not only does this case show that the manner in which the domicilium provision is drafted can have far reaching consequences, but it also embodies the presumption of interpretation contracts in that there are no superfluous words in a contract (see: SJ Cornelius Principles of the Interpretation of Contracts in South Africa 2ed (Durban: LexisNexis 2007) at 122). Therefore, account must be taken of each word in a contract, even that of a domicilium provision. The mere copying and pasting and use of precedence must be cautioned and used with circumspection to ensure that unintended consequences do not occur in the interpretation and enforcement of the contract.

 

Michele van Eck, legal adviser, Johannesburg

 

Are court officials adequately protected?

The question to be answered is whether court officials are protected during the criminal proceedings in court? Who has a duty to protect court officials while conducting their scope of employment in court?

The true story is that as an attorney, I was physically attacked by the complainant as I was cross-examining the complainant. The complainant attacked me and was instructed by court to apologise. Indeed she apologised, but I noticed that the complainant was not remorseful and did not see anything wrong with her actions. The question that pops up is:  Whether we are protected as court officials during court proceedings and by whom exactly? I feel that we are not protected at all.

 

Nokhanyo Makonco, candidate attorney, Mthatha

A criminal appeal puzzle

In S v Ntlanyeni 2016 (1) SACR 581 (SCA) three accused were convicted in the High Court for, inter alia, charges of rape.

The trial judge refused leave to appeal and thereafter the three separately, by petition applied to the President of the Supreme Court of Appeal (SCA) for leave to appeal. (They must have done so in terms of s 316(8)(a)(iii) of the Criminal Procedure Act 51 of 1977 (CPA).)

Two of the convicted persons were each granted leave to appeal by four judges in the two separate applications. In the Ntlanyeni matter the application was subsequently dismissed by two other judges. The President of the SCA, acting mero motu, considered the circumstances as exceptional in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013 and referred the decision in the Ntlanyeni matter to the court for reconsideration.

The matter was argued and the result was that he was also granted leave to appeal to the full Bench of the High Court.

What is puzzling is how the SCA could have acted in terms of s 17(2)(f) of the Superior Courts Act as the case originated from a criminal trial in the High Court sitting as a court of first instance, a process that is regulated by the CPA.

The definition of ‘appeal’ in the Superior Courts Act is:

‘“Appeal” in Chapter 5, does not include an appeal in a matter regulated in terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), or in terms of any other criminal procedure law.’

Appeals in criminal cases heard by a High Court are regulated by ss 315 and 316 of the CPA. Such appeals are, therefore, excluded from Ch 5 of the Superior Courts Act (see A Kruger Hiemstra’s Criminal Procedure (Durban: LexisNexis 2008) at 31-1 to 31-2). It is not clear how the SCA could have applied s 17(2)(f) of the Superior Courts Act to the Ntlanyeni matter.

Some criminal law practitioners and even ‘clever’ offenders serving sentences and whose applications to the President of the SCA in terms of s 316(8)(a)(iii) have been refused, now consider that their next step could be in terms of s 17(2)(f) of the Superior Courts Act.

I cannot agree and am anxious to learn whether I am missing a point here as the next possible step after a s 316(8)(a)(iii) application has been refused, is to approach the Constitutional Court provided a constitutional question is involved. More to the point: Can the SCA decision in the Ntlanyeni matter be correct?

 

JO van Schalkwyk, attorney, Johannesburg

 

This article was first published in De Rebus in 2016 (Dec) DR 4.

 

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