C.

SERVICE OF LEGAL DOCUMENTS

1. Intro

 Legal proceedings are started with the delivery of court documents (court process) to the
def or resp
 Delivery = service of documents
 Fundamental rule: C must be satisfied def or resp has received these documents and
aware that legal proceedings are being brought against him
 Legal maxim audi alteram partem (hear the other side) – every person is entitled to be
heard before an order or judgement is granted against him
 The documents which start legal proceedings must be served by an independent official
– sheriff of the C
 Ito s3 of the Sheriffs Act, a sheriff is appointed to serve docs w/i a particular area and
may not serve outside the area

2. The issue of process and duties of the sheriff

Before you are legally permitted to serve a C doc it must be issued

After being issued, the foll, docs will be sent to the sheriff for service:

1. The original doc (to be returned to the C file)

2. The number of copies of the doc which need to be served
3. An extra copy of the doc (to be returned to you to a place on your office file)

The sheriff has various duties when serving C process:

1. Explain the nature and contents of the doc to the person being served
2. Sheriff must hand a copy of the doc to that person
3. The extra copy of the doc will be returned to the attorney who requested that the service
be carried out, together with sheriff’s return of service

 Where sheriff is unable to successfully serve a summons or notice of motion ito the
rules, he completes a return of non-service
 Not all C process has to be served by the sheriff or his deputies. C doc that follow initial
summons e.g notice of intention to defend, a plea, or a replication, need not be served
by the sheriff
- Sufficient to deliver the doc to the service address indicated on initial summons or
notice of motion
 Rule 4A provides that all process other than process which initiates application
proceedings may be served by hand at the physical address for service provided,
registered post to postal address provided, fascsimile or electronic mail
 Rule 4A explicitly provides that service under this rule need not be effected through the
sheriff
 C docs which initiate interlocutory applications need not be served by the sheriff
 Usually only initial C docs in legal proceedings which are served by the sheriff

3. Methods of service ito Rules of Court

3.1 The usual methods of service in the HC

Set out in rule 4(1)(a) of the HC Rules:

1. Personal service: should be used whenever possible. Other methods of service should
only be used where the def or resp is elusive or untraceable. C process is delivered to
the person personally
2. Leaving a copy at the place of residence or business: doc may be left with a person at
the place of residence or business of the def or resp provided that the person is
apparently in charge of the premises and apparently not < 16 yrs (both reqs must be
met)
3. Service at the place of employment of the person to be served: service is effected by
delivering the doc to a person who is apparently I authority over the person to be served
and apparently not < 16
4. Service at the domicilium citandi et executandiof the person to be served: a person’s
domicilium citandi is an address which has been chosen by that person for service of
docs upon him. Once domicilium citandi is chosen, service will be good even if person
no longer resides there, abandoned property or is not known at that address or vacant
piece of land. As a gen rule: C are reluctant to allow use of domicilium address when
plaintiff is aware def is unlikely to receive notice of the proceedings if the domicilium
address is used
5. Service on a company or a close corporation: serve the process at its registered office or
principal place of business w/I C jurisdiction or in any manner provided by law. Service
has to be effected by handing the process to a responsible employee or if none wants to
accept service, by affixing the doc to the main door of the registered office or principal
pace of business
6. Service on an agent duly authorized in writing to accept service: agent must produce a
written authorization to accept service of the process
7. Service on a partnership, firm or voluntary association: process may be left at the place
of business of the partnership, firm, or voluntary association with a person who is
apparently in charge of the premises and apparently > 16
8. Service on a local authority or a statutory body: local authorities-process must be
delivered to the town clerk or city manager or mayor of the local authority. Statutory
bodies- service may be effected by delivering the process to the secretary or to a
member of the board of the statutory body
9. Service on 2 or more persons being sued in their joint representative capacity: service
must be effected on each of these persons individually
10. Service in legal proceedings against the state, a province or a Minister or Deputy
Minister in his official capacity: process may be served at the office of the State Attorney
situated in the area of jurisdiction of the C out of which the process was issued
11. Service on prisoners: process may be served on the inmate personally
12. Service on foreign diplomats: case of Portion 20 of plot 15 Athol v Rodrigues

 Ito HC Rule 4(1)(b) service must be effected as near as possible btwn 7 am and 7 pm
and ito rule 4(1)(b) service may not be effected on a Sunday unless C or judge gives
permission
o Exception: warrant of arrest may be validly served on Sun
 In any matter, C has judicial discretion to determine, based on acts whether service was
effective. If C says defective, may order process to be served again

3.2 The methods of service in the Regional and District MC

Set out in rule 9 of the MC Rules

1. Personal service: ito rule 9(3)(a) HC – personal service makes provision for service on a
guardian, tutor, curator when the person is a child or under disability. Any process
through divorce action or action for nullity of marriage is instituted requires personal
service in a Regional MC
2. Service upon a duly authorized agent: also takes place ito rule 9(3)(a)
3. Service at the residence or place of business of def ito rule 9(3)(b): person served must
be apparently 16 years or older
4. Service at the def place of employment ito rule 9(3)(c): person apparently in charge at
the def place of employment need not be a person who is also apparently in authority
over the def
- 1 of the def co-workers may be in charge of the premises when sheriff arrives to
effect service, but d/n have authority over the def
- Service on such person = permissible in a Regional or District MC but not HC
- HC matters – service must be effected on a person’s apparently in authority over the
def
5. Service at the def domicilium citandi ito rule 9(3)(d): sheriff may serve at the def
domicilium citandi by delivering or leaving a copy at the chosen domicilium
6. Service upon a corporation or company: ito rule 9(1)(e) service may be effected on a
corp or co either at registered office or at principal place of business, situated w/I area of
jurisdiction of the C on a responsible employee or if they refuse, by affixing a copy to the
main door
- When a sheriff sends the process by registered mail, must request addressee
acknowledges receipt, If acknowledgement is not received sheriff will mention this in
return of service
- Rule 9(3) provides if process is served by registered post where there is reason to
doubt served process has come to the actual knowledge of the person on whom it
was supposed to be served C may treat service as invalid
7. Service upon state organs and state officials: where def is a state or provincial
department or a Minister, Deputy Min or premier in his official capacity, rule 9(3)(g)
permits you to serve process on the national or local offices of the State Attorney
8. Service by affixing a copy of the doc to the outer or principal door or security gate or
placing a copy in the post-box: service is allowed if the person who is going to be served
with process or doc keeps his residence or business closed, preventing sheriff from
serving process upon him
9. Service upon a partnership: sheriff may ito rule 9(7)(a) serve at the office or place of
business of partnership. If p-ship doesn’t have office/ place of business, sheriff may
serve upon any member of partnership
10. Service upon curators, executors, guardians, liquidators and trustees: if 2/ more
curators, executors, guardians, liquidators or trustees of insolvent estate are being
summonsed in their capacity as such, service may be effected by serving on any 1 of
them [rule 9(7)(b)]
11. Service upon clubs, societies and similar bodies: syndicate, unincorporated company,
club, society, church, public institution or public body, sheriff may serve at the local office
or place of business of that body. Otherwise serve on chairman or secretary or similar
officer of the body [rule 9(7)(c)]

 MC rule 9(9)(a) makes provision for service of any notice, request, statement or other
doc which is not process of the C to be effected by hand delivery or by sending the doc
through registered post
 Rule 9(9)(a) provides such process may also be served by sending it by facsimile or
electronic mail, provided pl has requested and def consented in writing
 As a gen rule process, notices and other do are not served on Sundays or public
holidays
 Interdicts, warrants of arrest and warrants of attachment of property may be executed on
any day at any hour and any place
 S 107 MCA makes it a criminal offence to obstruct a sheriff in execution of his duties;
dispose of goods attached by sheriff; make a false declaration; fail or refuse to point out
property you own; refuse or neglect to deliver the title deeds of immovable property

4. Substituted service and edictal citation

4.1 substituted service in general

 if you have docs to be served (summon or notice of motion) and ou unable to serve by 1
of usual methods of service, make an application to C for authority to serve in some
other way (application for substituted service)
 MC Rule 9(10) provides for substituted service in regional and district MC
- Subject to rule 10, where C is satisfied service cannot be effected in any manner
prescribed and action is w/I jurisdiction, it may make an order allowing service to be
effected by the person and in manner specified in such order
 For edictal citation (service outside SA borders) MC rule 10 is relied on
  Substituted service may be used only where def or resp is known or believed to be
inside the country
 It is only service of docs commencing legal process on persons outside SA borders
which must be effected by edictal citation
 Reasons for inability to serve docs: not knowing whereabouts of def or resp or knowing
whereabouts but unable to serve b/c def or resp refuses to open the door to the sheriff or
avoiding service

4.2 service of legal process outside the country

4.2.1 HC, Regional and District MC: application for edictal citation
 MC rule 10 or HC rule 5, if you want to serve docs instituting HC proceedings outside the
Republic, must first make application to C for leave to institute proceedings by edictal
citation
 This is the case whether or not the def or resp address is known
- If address is unknown- application will be a dual one
a) Ask for leave to proceed by way of edictal citation
b) Ask leave to use a method of substituted service
 Edictal citation (just an edict or citation) is merely a special type of summons similar to a
normal summons except that it is addressed to the def directly and not to the sheriff b/c
there may not be a sheriff or similar officer serving legal process in the foreign country

Allegations included in affidavits supporting your application:

1. Nature and extent of the claim
2. Grounds upon which the claim is based
3. Grounds upon which the court has jurisdiction to hear the claim
4. Method of service you asking the court to authorize
5. Last known whereabouts of the person to be served
6. Enquiries that have been made to find out where that person currently is
7. Any other info which may assist the court to make a decision

 Irt the manner of service which the C is being asked to authorize, the affidavit must set
out a proposal for service and motivate why this method of service is being proposed
 Irt the steps taken to establish the person’s whereabouts you have to satisfy the C that
every reasonable step has been taken, but to no avail

Following details may also be included:

1. Def last known place of residence
2. Last place from which news of the def was obtained
3. Def last known domicile
4. Residences of the def spouse or partner, parents and other near relatives
5. Def place of birth
6. Details of all enquiries made to ascertain the def present whereabouts, e.g:
a) His spouse or partner, parents and relatives have been approached iot ascertain his
present whereabouts but to no avail
 b) His last known place of employment has been contacted but they have no idea
where he is
c) Official sources such as Department of Labour have no record of his present address
d) Tracing agents have been appointed but have been unable to trace him
7. Details indicating that all possible sources of info about the def whereabouts have been
fully investigated and all necessary steps have been taken to locate the def

Note: Both application for substituted service and application to serve by edictal citation are
brought ex parte

4.2.2 Substituted service via electronic media

 C may order any manner of substituted service as is likely to bring proceedings to the
notice of the party to be served
 CMC Woodworking Machinery v Pieter Odendaal Kitchens
- KZN HC in Durban held that it was not unreasonable to expect the law to recognize
and accommodate technological change and thus authorized substituted service of a
notice of set down by way of Facebook message addressed to the inbox of the def
FB page
- C examined several risks including: whether it constituted invasion of privacy,
whether the ID of the def could be established, whether FB profile was genuinely that
of the def, whether it complied with ECTA, whether there was any legal certainty of
service, whether proof of service could be provided
- C concluded service on def FB page was permissible as an alternative method when
none of the prescribed methods were available
 C must consider:
o Whether there is reasonable certainty hat the social media profile is indeed that
of the party who needs to be served
o Reasonable certainty that the party uses the social media network
o Legal certainty of service would be achieved

5. Jurisdiction and service distinguished

 The HC and MC Rules regulating the service of C process cannot be interpreted as
conferring jurisdiction on a C
 Domicilium address in a contract only appoint physical addresses for purpose of service
of docs; contract cannot be interpreted to hold that the C having jurisdiction over the
area domicilium address is situated will have jurisdiction in any dispute
 Wrt HC practice, although service at a def place of work or employment is permissible ito
HC rule 4, the C having jurisdiction over the area in which these places are situated will
not have jurisdiction unless it is also the forum domicilii
 If a def were on holiday in a location not his place of residence, domicile or place of
employment or business and a local sheriff was able to successfully serve a summons
on the def personally, it would be good service but would not give local C jurisdiction to
hear the matter