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Advocate Melanie Holderness

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Advocate Holderness

Capacity: Advocate
Gender: Female
Ethnicity: White
Date of Birth: January 1975
Qualifications: BA (1996) LLB (1998) (Rhodes), MBA (2002) (UCT)

Key Judgments:

Candidate biography (Updated September 2024):

Advocate Melanie Holderness is a practicing advocate of the Cape Bar, having taken up chambers in 2004. Prior to joining the Cape Bar, she completed her articles of clerkship at STBB (1998-1999) and practiced as an attorney at STBB until 2000. She went back to university to obtain her MBA, which she obtained from UCT in 2002, whereafter she worked for a year as a management consultant at KPMG Consulting.

Whilst practicing as an advocate she has served as a Small Claims Court Commissioner, Secretary and Treasurer of the Cape Bar Council, and has been a member of the Advocacy Training Committee. Since 2020 Advocate Holderness has also tutored pupils at the Cape Bar on the law of evidence. She currently serves as a director of the Cape of Good Hope SBCA. She is a qualified mediator and has acted as an arbitrator, in addition to being on the panel of the Arbitration Foundation of South Africa (AFSA) and the Commercial Property Tribunal

Advocate Holderness has acted as a judge of the Western Cape Division of the High Court for approximately 6 court terms, totalling 59 weeks, beginning in 2016, with her most recent stint being in June 2024. As an acting judge, Holderness has handed down approximately 58 written judgments, 3 of which have been reported in the South African Law Reports and 20 of which have been reported on SAFLII.

In the case of K2102150042 (South Africa) (Pty) Ltd v Zitonix (Pty) Ltd, the respondent had concluded five lease agreements with the applicant, in terms of which it leased certain commercial premises in a shopping centre from the applicant. The respondent was part of a group (“the Platinum Group”). When several companies in the Platinum Group experienced significant financial difficulties, most of the retail leases held by entities in the Platinum Group were terminated. The respondent fell into arrears several times during the existence of the leases, until eventually, on 25 August 2016, the applicant sent letters of cancellation to the respondent in respect of three of the five premises. Less than a week later, the applicant sent further cancellation letters to the respondent in respect of all five premises based on a new ground for cancellation, provided for in the lease agreement (in clause 16.1(e)), viz sequestration of the lessee. It was common cause that the estate of the sole director (Joubert) of the Platinum Group was placed under final sequestration on 22 August 2016. The applicant sought confirmation of the cancellation of the five agreements, and an order directing the respondent to vacate the leased premises.

In concluding that the lease agreements had been validly cancelled and that the applicant was therefore entitled to an order directing the respondent to vacate the leased premises, Holderness stated that in respect of the jurisdictional point that the general, common law principles in respect of which a provincial or local division of the High Court will exercise territorial jurisdiction, in the absence of any jurisdictional limitations imposed by statute or the common law, are the doctrine of effectiveness and submission, and actor sequitur forum rei (that the applicant follow the respondent to their forum). Section 21(1) of the Superior Courts Act 10 of 2013 provided that a Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance. The respondent had its registered office in the Western Cape, and for the purposes of jurisdiction was therefore regarded as having its domicile in the Western Cape. The lease agreements were entered into in the Western Cape. Any order granted by the present Court directing the respondent to vacate the property, failing which it would be evicted, could be enforced by the Sheriff for the KwaZulu-Natal High Court, ensuring that should the application succeed, the order could be executed in Natal. Therefore, the present Court had concurrent jurisdiction with the KwaZulu-Natal High Court, and there was no merit to the respondent’s contention that the forum rei sitae had exclusive jurisdiction to determine the contractual remedy sought by the applicant.

Further, in respect of the respondent’s second defence that the deponent lacked the authority to depose to the founding affidavit of the applicant, Holderness held that in the absence of a proper challenge to the authority of the applicant’s attorney to institute the proceedings, through the mechanism provided by rule 7 of the Uniform Rules of Court, it had to be accepted that the applicant’s attorney was properly authorised. The proceedings were properly brought and there was no merit to the respondent’s objection to the authority of the deponent to the founding affidavit. Holderness also rejected the respondent’s claim for rectification of the agreements, stating that where a party attempts to enforce a contract affected by common mistake, the other party may rely on the mistake as a defence without counterclaiming for rectification, if it proves such facts as would entitle it to rectification. Rectification is a remedy which is available where there has been a common, and not a unilateral mistake, where the court is asked to rectify the agreement to bring it in line with the parties’ true intention. That was not the case in this instance.

Advocate Holderness’ judgment in this matter was upheld on appeal by the SCA, with a slight amendment to her order as to which sheriff was to execute the order. Notably, Lewis JA, writing for the SCA, observed that Holderness’ judgment could not be faulted in any respect.

October 2024 Interview: