By Joubert Galpin Searle Associate - Anda Makrwede (Recoveries Division)
Often it happens that individuals find themselves being sued in courts far from where they live. The unsuspecting individual will seldom question. However, the concerned individuals will not be at ease with having to travel hundreds of kilometres or more to attend to court processes.
Such a dilemma is not unique to any court or area, but it is more prevalent to some than others. To say the least, it can happen anywhere and to anyone.
So, what causes this dilemma, you may ask. Well, the answer is simple – the “Law” (of the land on which you may have to travel). It is not as simplistic as it appears though. There are various considerations when determining which court to sue out of. Although some considerations are straight-forward, others are complex. These are generally known as jurisdictional considerations.
These considerations may include legislation, which may determine the appropriate court. An example of this would be a matter of a constitutional nature which can only be heard in the Constitutional Court sitting in Johannesburg, but you as the individual in the matter live in Visagiesfontein.
Understandably, the above example may sound far-fetched but one closer to home is that of a motor vehicle accident. For instance, you may have caused a vehicle accident whilst on holiday in Durban. A few months later, at your home in Port Elizabeth, you receive a Summons calling you to answer to the claim in the Johannesburg court, where the party suing you, resides.
Suddenly it hits home that Durban is no longer your destination of choice, let alone that you have never set foot in Johannesburg. However, you must act on the Summons as you may find that you are sued in the wrong court despite the distance.
Such dilemmas occur because the Plaintiff (party suing you) has chosen the wrong court for whatever reason. In the vehicle accident example above, there are generally two jurisdictional considerations that the Plaintiff ought to have applied, at the very least. The first consideration directs that the appropriate court is determined with reference to where the cause of action (i.e. the accident) took place. The second consideration allows for the appropriate court to be determined with reference to where the Defendant (you) resides.
Therefore, either the Durban or Port Elizabeth court could be the appropriate court.
Although the Johannesburg court may be the wrong court, you are always advised to act, as any failure to act can lead to a default judgment taken against you in the “wrong court”.