Category Archives: Court

The importance of the domicilium clause

The innocuous little domicilium clause. We’ve all signed a contract containing one, whether we noticed it or not. The domicilium clause is a standard clause in most written agreements, which effectively specifies how communications, notices, legal processes and the like are to be served on the receiving party.

Typically, the contract provides for a party to identify a physical address that is nominated as the ‘domicilium citandi et executandi’ – or the address at which the party will accept the service or delivery of official documents related to the contract. Often this clause includes a deeming provision, for example the assumption that the letter will be delivered within eight days after being mailed by registered post. That’s all well and good; until the time comes when a person needs to serve something really important on the other party. Like a termination notice, demand letter or summons. That’s when things can fall apart. For example:

Insurance claims and the failure to disclose

The court was asked to adjudicate upon an insurance claim that was repudiated by Outsurance in Jerrier v Outsurance Insurance (Pty) Ltd. Briefly, the facts in this case were that Jerrier had taken out an insurance policy with Outsurance to cover his household goods and motor vehicle. In terms of his policy, Outsurance offered a cash reward for not claiming. If there was no claim against the policy for the first three years of the policy, Jerrier’s cash reward was a reimbursement of 10% of the value of the premiums that he had paid. This reward increased to 20% for the following two years, and 25% for every year thereafter. The intention behind this incentive is clear: the customer is motivated to not lodge claims, specifically for minor incidents. After all, claims are bad business for an insurance company that has to foot the bill for the insured’s losses.

The importance of a building contract

It is often said that the strength of a marriage is well-tested when the couple undertake a building contract. If their marriage survives the building process it should survive almost anything. Undertaking a building contract is undoubtedly a stressful project, whether it’s renovating, adding a room, building another story, or erecting a residence from scratch. Dinner-table talk is littered with war stories and battle scars as people exchange experiences and run-ins with building contractors. The stress of undertaking a building project can, however, be tempered with a suitable Building Contract.


Mediation in the Magistrates Court – a step-by-step guideline

You’ve followed all the advice, acted as a prudent businessman or woman, ensured all your business dealings are in writing, signed terms and conditions and generally behaved like the model citizen. The challenge is that the same cannot necessarily be said of your business associate. If your business associate breaches your agreement, what then? The law may be squarely on your side, your contract may be watertight, the terms may be clear. But enforcing your rights still requires you to take legal action. This means commencing action in a court of law. And it is well-known that South African courts are battling to keep abreast of the cases that are brought to them for resolution. It can be months, sometimes years before your matter reaches trial. During this time many things can change, not least of which would be your rapidly diminishing bank account as you struggle to keep up with the payments to your attorney. Little wonder so many litigants ask: Is there an alternative to litigation? There is indeed a solution that you may wish to consider: voluntary mediation in the magistrates court.

Consent to jurisdiction

There’s a concept in our law called “jurisdiction”. Broadly speaking, it refers to whether or not a court has the authority to adjudicate on a matter. There are specific indicators that determine whether a court has the jurisdiction, or authority, to make a legally-binding order in a matter, e.g:

  • the court located in the district where a contract was entered into would ordinarily have jurisdiction, or the authority to decide upon disputes arising from the contract;
  • the court located in the district where the defendant (the person being sued) lives or carries on business would ordinarily have authority to decide on any claims brought against the defendant.


Sipho, who operates his business in Johannesburg, sells goods to Joe, who lives in Durban. They had met each other on conference in Cape Town, which is also where they had both negotiated and concluded their Sale of Goods Agreement. Joe fails to pay Sipho for the goods, so Sipho sues Joe. He can do so:

Affordable Legal Fees: Fact or Fiction? Part II

Previously, in Affordable Legal Fees Part I: While lamenting the Zuma family’s suspiciously good fortune, we also questioned the broader moral fibre comprising the fabric of our society. Is our humanity indeed measured by the BMWs we drive? Is the charging of exorbitant fees indeed justified because “everyone does it”? Is there anything that can stem the increasingly apparent ethos of feathering one’s own nest at the expense of others? The future of our nation may well rest upon the shoulders of one unassuming yet unassailable savior: the South African Constitution.

Affordable Legal Fees: Fact or Fiction? Part I

Dichotomy (noun): A division or contrast between two things that are or are represented as being opposed or entirely different.

Dichotomy. Aka South Africa. Where the rich dine on sushi and the poor on scraps. The rainbow of our nation seems wedged between two storms. The storm of our ugly, discriminatory past where power corrupted, and the government determined who would be the haves and have nots. And the storm of our ugly, discriminatory, future where power corrupts, and the government determines who will be the haves and the have nots. Nowhere in our dichotomous nation is this more evident than in the recent scandal embroiling our leader. Yes, ladies and gentlemen, we are referring to Nkandla-gate. Our esteemed politicians continue to dream up creative ways to justify the obscene amount of taxpayers’ money being spent on Nkandla, and our Finance Minister vainly tries to explain why a lavish upgrade to the presidential home is far and away a better spend than upgrading hospitals and schools. This, however, leads to a bigger issue that perhaps begs some discussion.