BY Thabang Poshodi
The law on the return of service by a sheriff
Service by a sheriff
Service by a Sheriff is located in Rule 4 of the Uniform Rules of Court of which the purpose of service is two-fold. Firstly, it is to notify the person or juristic person intended to be served of the nature, contents, and exigency of the process of the court; and secondly, to return to the court proof of such service as prescribed by the law, i.e., this is referred to as “return of service”.
Two important principles that relate to service are that a court has the discretion to condone an incorrect or defective return of service where service was duly effected i.e., there was effective service and no prejudice was or will be suffered by any of the parties, and return of service will be declared a nullity without proof of valid service. The provisions of Rule 4 of the Uniform Rules of Court are mandatory and any purported service not sanctioned by the court constitutes an irregularity and the purported service is invalid.
Condonation of incorrect return of service
In circumstances where the initiating documentation, i.e., summons, was duly served but incorrectly, the court does not declare subsequent proceedings as void but voidable, and the court has the discretion to condone such irregularity. The court exercises its discretion for condonation by having regard to the relevant circumstances of the matter and deciding what will be fair to both parties.
Mason J in Botha v Measroch, dealing with inter alia a return of service that was false, held that:
“It is, of course, quite true that a return by a sheriff or messenger may be challenged and, if that challenge shows that the service was bad, then, of course, the summons will be affected accordingly but I am not aware of any principle by which, if the challenge of the service shows there is a good service and that all that is required is a mere amendment of the form of the service, the summons itself is bad”.
Lamont J in Prism Payment Technologies (Pty) Ltd v Altech Information Technologies (Pty) Ltd t/a Altech Card Solutions also noted the following:
“The purpose of Rule 4 is to provide for a mechanism by which relative certainty can be obtained that service has been effected upon a defendant. If certain minimum standards are complied with as set out in the rule then the assumption is made that the service was sufficient to reach the defendant’s attention and his failure to take steps is not due to the fact that he does not have knowledge of the summons”.
What is clear from the above dicta is that as long as the person being sued; i.e., the defendant has received effective notice of the fact that he is being sued, then although service was not in terms of the rules, the purpose of service was achieved, and the court will condone such irregularity.
For instance, in Botha v Measroch, the return of service noted that the defendant was served personally with the summons and documents attached at his chosen domicile. The return of service was, however, false as there was no personal delivery. The court did not deem it necessary to alter or amend the return of service since there was valid service in terms of law, the plaintiff chose his office as his domicile and was served in that manner.
Further, in the case of Scott v Ninza, there was an application in terms of Rule 30(1) of the Uniform Rules of Court to set aside an irregular step, that the service of summons did not comply with Rule 4(1)(a)(iii) of the Uniform Rules of Court. The court held that the service of summons by the sheriff was defective. This was because the summons was served at the Headquarters of the applicants’ employers, to one Debbie Griesel who had no authority over the applicants as required by Rule 4(1)(a)(iii) of the Uniform Rules of Court.
That notwithstanding, the court further held that the defective service should be condoned. Relying on Federal Insurance Company SA Limited v Malawana, the court held that the defect was purely a technical one; and in addition, the applicants suffered no prejudice as they received the summons and were in a position to contact their attorneys in respect of the matter. More importantly, the court held that the defect was no fault of the sheriff and non-condonation of the defective service would cause grave prejudice to the sheriff.
Federal Insurance Company SA Limited v Malawana is another case that is a clear example of a defective return of service that was condoned by the court. The sheriff in this matter effected service that was not per Rule 4(1)(a)(v) of the Uniform Rules of Court, in that service should have been at a person’s office (branch office of a company) but was effected at that person’s private home. Such irregular service was condoned by the court because (i) the company suffered no prejudice as a result of the irregularity, (ii) the company was furnished with full details of the respondent’s claim, and (iii) the company entered an appearance to defend the action, notwithstanding knowledge of the irregularity.
Cases where service was declared null and void
It is trite that where proceedings begin without notice to the other party the court may declare such proceedings null and void. This is based on the fundamental principle of our law that a court will not make a final order that may prejudice the rights of a person without notice to him.
For instance, in Mutebwa v Mutebwa, the sheriff noted that in the return of service, summons was served on the applicant personally. The court found, however, that the return of service was fraudulently completed since the applicant was out of the country during the time the summons was purportedly served on him. The sheriff’s return of service was a nullity.
Similarly, in Concrete 2000 (Pty) Ltd v Lorenzo Builders CC, the court held that the service to the third defendant was a nullity since the purported service of the combined summons would never have reached the attention of the third defendant.
Sheriffs play an important role in respect of service of court papers. Both the return of service and the service itself by the sheriff should be in accordance with the provisions of Rule 4 of the Uniform Rules of Court. A defective return of service will be condoned by a court where it can be shown that service was effective and notice was brought to the other party.
Reviewed by Douglas Molepo, Executive in ENS’ Dispute Resolution practice
Candidate Legal Practitioner | Dispute Resolution