ANSWER THE QUESTION BASED ON THE TEXT BELOW

Question

In several situations it may be necessary for a plaintiff to prove that there is a ground of
jurisdiction (ratio jurisdictionis) before the court will be prepared to hear his case. The
commonly accepted grounds of jurisdiction are derived from Roman-Dutch law. It was then
the rule that the court of the place where a contract
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had been made or was to be performed (ratio contractus), or the court of the place where a
delict had been committed (ratio delicti/rei gestae) had jurisdiction in respect of the relevant
issue. Our courts still speak of the various rationes jurisdictionis or, sometimes, of the
‘cause of action’ upon which jurisdiction is founded. This term, in its present context,
does not have the meaning which the cognate term has in s 19(1)(a) of the Supreme Court
Act. In the Act, ‘causes arising’ has been interpreted to mean nothing more than an
action or proceeding. Here the term means a ground (other than grounds such as
residence or domicile) for assuming jurisdiction, namely a jurisdictional connecting factor. In
the usual case, it will be the court of the place where a contract was entered into or
where it was to be performed or where the delict was committed which will be
prepared to hear the action. Yet very little has been done to define what is meant by these
grounds of jurisdiction or to define the circumstances in which the cause of action may be
said to arise within a particular area. There are four principal areas of difficulty.
In the first place, are the grounds of jurisdiction based exclusively on contract and delict?
This question should be answered in the negative. Unjustified enrichment has been accepted
as a valid ground and, in at least two other cases, the cause of action was neither
contract nor delict. In Ongevallekommissaris v Unie & Nasionale Versekeringsmaatskappy
Bpk, a motor car accident occurred within the court’s area of jurisdiction which was an
‘accident’ under the Workmen’s Compensation Act 30 of 1941. After the Commissioner had
paid compensation to the injured party, he sought recovery under s 8 of the Motor Vehicle
Insurance Act 29 of 1942. The court did not discuss the nature of the cause of action; it
spoke of the basis of its jurisdiction as a ratio rei gestae. Similarly, in Estate Agents Board v
Lek, the basis of the claim was an appeal against the decision of the Estate Agents’ Board. This could not be classified as a contractual or delictual matter, yet it was
accepted as a valid ratio jurisdictionis.
The second problem flows from the above. What is the criterion which determines a
ground of jurisdiction? It is clear that it is not simply the breach of a contractual obligation or
the commission of a delict. Pollak has suggested that we adopt the early English principle,
namely that the ground of jurisdiction is ‘the act of the defendant which gives the plaintiff
his cause of complaint’. This would be general enough to accommodate the two
decisions mentioned above but, although an attractive solution, it does not take account of
certain contractual cases. It has been held that if a contract has been entered into and is to
be performed outside the area of the court’s jurisdiction, the court will not entertain an
action for breach of contract even if the breach occurred within its area. The breach, of
course, is the act about which the plaintiff complains, yet it is not accepted as a ground of
jurisdiction. Even though the cases which accepted unjustified enrichment, etc as grounds of
jurisdiction would tend to show that this rule is unnecessarily narrow, there seems to be no
way of reconciling them with the cases on breach of contract. Possibly the position may be
ameliorated by application of the causae continentia doctrine; but if that doctrine is
restricted to matters arising within the same legal system, there will be no solution for cases
involving a foreign element. This would seem to be an area where considerations of
convenience have a valuable part to play.
The third problem is concerned with the place where the cause of action arose. As yet,
our courts have appeared to experience no difficulty with this question, but complex issues
of choice of law may be involved. If, for instance, an offer were to be posted from South
Africa to an offeree in Germany and the acceptance duly posted in Germany; according to
South African law (adhering to the expedition theory) the contract will be deemed to have
been made in Germany. Under German law, on the other hand, which follows the reception
theory, it would be considered to have been made in South Africa. Similar problems may
arise in determining the place where a delict occurred. If the de cujus, for example, were to
write a
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defamatory letter in England and publish it in South Africa, in which country is the ratio
jurisdictionis founded? Pollak suggests that we apply the lex fori to solve these
problems. There are, of course, good reasons for keeping jurisdiction and choice of law
as separate categories and, if we keep to this principle, there can be no question of applying
a foreign system of law to ascertain where the ground of jurisdiction is located. Indeed it
would be anomalous if a local court were bound by a foreign rule in determining its own
jurisdiction. The determination of the locus of a delict is discussed elsewhere.
The fourth problem is related to the third. Does the ground of jurisdiction have to arise
wholly within the court’s area? While it seems to be agreed that, for example, it will suffice if
a contract is to be partially performed within the court’s area, it is uncertain whether the
criterion of partial performance, without breach, is sufficient. If under a contract of sale, for
example, goods were to be delivered in both KwaZulu-Natal and Gauteng and the goods
delivered in KwaZulu/Natal were discovered to be latently defective, would the Gauteng
courts have jurisdiction? According to Pollak’s suggested test—the act of the defendant
which gives the plaintiff his cause of complaint—the Gauteng courts would not have
jurisdiction because the cause of complaint did not arise within their jurisdiction. This, in
fact, appears to have been the approach of the courts so far.
This issue has arisen in the delictual context in Thomas v BMW South Africa (Pty) Ltd.
Here the plaintiff had suffered damage following a motor accident in the Cape caused by
alleged negligence in the manufacture of the vehicle in Gauteng. Van Reenen J held that ‘the
court most closely associated with the delict’ would have jurisdiction. This ‘closest association’ would be determined by ‘the materiality of and the number of ingredients
thereof which have occurred in the court’s area of jurisdiction’. Thus it was not necessary
that all elements should arise wholly in the court’s area. Having regard to the fact that the
duty of care was owed in the Cape and that was where the damage occurred, the judge
concluded that the Cape court had jurisdiction. And in Tsichlas and Another v Touch Line
Media (Pty) Ltd the defendant’s website provided by an internet service provider in the
Cape was accessed from the WLD and remarks defamatory of the plaintiff found; a cause of
action in defamation was held to arise in the WLD.
QUESTION
An offer was made by Jack from the Netherlands (Amsterdam) to Daniels, a South African from Gauteng. The offer was accepted and duly posted on the 20/04/2024. On the 21st of April 2024, Jack (the offeror) decided to withdraw his offer and phoned Daniels (the South African) to inform him accordingly. Daniels (the South African offeree) is convinced that a valid contract was concluded, because the place where the letter of acceptance was posted will determine the validity of the contract. Contrary to this, Jack (the offeror from the Netherlands) argues that the message to revoke reached Daniels (the offeree) long before he himself received the letter of acceptance – the contract, therefore, never came into existence. Fully advise Daniels on the solution available to him and the phenomenon shown by the facts.

Answer 1

The phenomenon shown by the facts is the conflict between the expedition theory and the reception theory in contract law. The expedition theory, followed by South African law, states that a contract is deemed to have been made at the place where the offer is posted. On the other hand, the reception theory, followed by Dutch law, states that a contract is deemed to have been made at the place where the acceptance is received.

Given this conflict, Daniels (the South African offeree) should be advised that the validity of the contract will ultimately depend on the governing law agreed upon by the parties. If the contract specifies that South African law applies, then the expedition theory will be upheld, and the contract will be deemed to have been made in South Africa. On the other hand, if the contract specifies Dutch law, then the reception theory will apply, and the contract will be deemed to have been made in the Netherlands.

Therefore, Daniels should carefully review the governing law clause in the contract to determine the applicable legal principle to resolve the dispute with Jack.