Shepard v Emmerich (A5066/2013) [2014] ZAGPJHC 120; 2015 (3) SA 309 (GJ) (13 June 2014)

Shepard v Emmerich (A5066/2013) [2014] ZAGPJHC 120; 2015 (3) SA 309 (GJ) (13 June 2014)

The court held that the service of summons was defective because it did not comply with the express requirements of the domicilium clause, which specified service on the second floor and marked for Mr Janks. The fact that the firm had moved and Mr Janks had resigned did not alter the contractual requirements for service. Strict compliance with the agreed method of service was necessary to interrupt prescription. Condonation was not available in the context of a contractual provision. As a result, the appeal was dismissed and the appellant's claim failed.

Citation
[2014] ZAGPJHC 120
Parties
Appellant: Grete Shepard; Respondent: Jacqueline Emmerich
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 June 2014
Case Number
A5066/2013
Procedural Posture
Civil Appeal / Appeal From Trial Court on Point in Limine
Outcome
Appeal dismissed; costs awarded against appellant.
Judges
FHD Van Oosten, M Victor, G Damalis
Legal Topics
Domicilium Citandi Et Executandi, Service of Process, Contractual Interpretation, Prescription Interruption
Civil Procedure Commercial and Corporate Domicilium Citandi Et Executandi Service of Process Contractual Interpretation Prescription Interruption

Case Brief

Summary, issues, holding and outcome

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Parties

Grete Shepard

Appellant

Jacqueline Emmerich

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court on Point in Limine

Legal Issues

  1. 1 Whether service of summons at the contractually chosen domicilium citandi et executandi was valid.
  2. 2 Whether strict compliance with the method of service specified in the domicilium clause was required.
  3. 3 Whether defective service could be condoned by the court in the context of a contractual provision.

Ratio Decidendi

The court held that the service of summons was defective because it did not comply with the express requirements of the domicilium clause, which specified service on the second floor and marked for Mr Janks. The fact that the firm had moved and Mr Janks had resigned did not alter the contractual requirements for service. Strict compliance with the agreed method of service was necessary to interrupt prescription. Condonation was not available in the context of a contractual provision. As a result, the appeal was dismissed and the appellant's claim failed.

Court Disposition

Appeal dismissed; costs awarded against appellant.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the costs of the appeal.