In the matter of Hamze Trading (Pty) Ltd v Alf’s Tippers CC (20955/2022) [2024] ZAGPJHC 1696, Hamze Tading (Pty) Ltd sought a recission of a judgment granted by default against them on 20 October 2022 in favour of the Alf’s Tippers based on a lease agreement the parties had concluded for the provision of tipper trucks and drivers to Hamze Trading. The most notable aspect of the judgment, which was handed down by Meiring AJ last week, relates to the service of summons by Alf’s Tippers and its effect on Hamze Trading’s rescission request.
Affixing the document to the post box of the complex
On 13 June 2022 Alf’s Tippers issued summons against Hamze Trading for amounts due in terms of the lease agreement. On 29 June 2022, the sheriff served the summons on Hamze Trading at its registered office in Royldene, Kimberley at a secure residential complex. Early in October 2022 a notice of set-down for the hearing where the default judgment was granted, was too served at the same address. It is highlighted that “in both cases, having made a diligent search, the sheriff decided that there was no other means of effecting service and indeed effected service by affixing the document to the post box of the unit of Hamze Trading … the post boxes are located outside the main gate of the complex in a covered space past which cars entering the complex would have to drive”.
No employee present at the registered address
Hamze Trading however assailed the service effected at the post box, arguing that firstly in the lease agreement, the parties chose a domicilium citandi et executandi – being a nominated address at which all legal documents and notices will be received by Hamze Trading – which address Alf’s Tippers was obliged to use. Secondly, that since there was no employee present at its registered address, the service of the summons was not effective service. Thirdly, that Alf’s Tippers should have effected the service upon Hamze Trading attorneys.
The Purpose of service
Service of legal documents in our law is a fundamental principle, that individuals are entitled to receive notices of legal proceedings against them. For instance, the purpose of a summons or application is to involve a litigant in a suit and put differently, ensures that a party is not unlawfully excluded from proceedings that could affect their rights or could be prejudicial to them.
Rule 4(1)(a) of the Uniform Rules of Court sets out different modes of effecting service of any process of the court by the sheriff, each of which may be used as an alternative to the other. Important to note at this juncture is the amendment of sub-rule 1(a)(ii) and (iv) effective from 12 April 2024, which does away with the long-standing practice of service by affixing (or ‘leaving’ a copy of the summons at the defendant’s address) and, further, requires service to be effected by delivering a copy of the summons on a person at the defendant’s address who is at least 16 years old.
It is of paramount importance that service is effected accordingly as the contrary poses negative consequences to legal proceedings. This includes, but is not limited to, the delaying of the court proceedings as well as increased costs for the party who has initiated the legal action. The court in the present matter noted accordingly that “the question of effective service will always be a contextual and fact- specific one”.
Effective service
The court considered the case of Motloung v Meyersdal Nature Estate Homeowners Association (NPC) (40411/2016) [2021] ZAGPJHC 477 which held that “service should in the first place be effected at the domicilium address and, only if it is “necessary” to achieve effective service, might another mode of service under rule 4(1)(a) be used”. The court further notes the peremptory nature of rule 4(1)(a) in that if one mode of service is not possible, the sheriff can use the others in the alternative, noting that some may be mandatory to use in specific cases.
Permits service by affixing at the main door of a registered office where there is no-one to be found at that office
In addressing the second complaint Hamze Trading raised regarding service in accordance with rule 4(1)(a)(v) – namely that service on a company cannot be effected at an address at which no employee is present to accept same – the court highlighted the importance of the context in certain instances. It is apparent that Meiring AJ was satisfied that rule 4(1)(a)(v) “permits service by affixing at the main door of a registered office where there is no-one to be found at that office”.
The third contention by Hamze Trading related to rule 4(1)(a)(aA) which provides that “where the person to be served with any document initiating application proceedings is already represented by an attorney of record, such document may be served upon such attorney by the party initiating such proceedings.” This point was noted to have no substance, with the court relying on what was said in BHP Biliton Energy Coal South Africa Ltd v Minister of Mineral Resources and Others that the rule applied to proceedings that had already been instituted, so that it in effect applies to ancillary and interlocutor applications” – making it impermissible for Alf’s Tippers to rely on it in these circumstances.
Sheriff could have done more
The court then dealt with the effectiveness of the service in this factual context, in particular the affixing of the documents to the post box of Hamze Trading’s unit, with the sheriff reasoning that after having made a diligent search there was no other means of effecting service. Meiring AJ highlighted that “while the sheriff says that there was no other means of effecting service, had he done more, by also depositing a copy in the post box itself or by handing it to a security guard at the entrance of the complex .. [he] might have been more sanguine on the effectiveness of the service” and therefore held that there were several means at the Alf’s Tippers’ disposal in terms of reaching Hamze Trading that would have constituted effective service in the circumstances. Ultimately, the court held that the sheriff could have done more to bring the documents to the attention of Hamze Trading and as such, concluded that “service that was effected at the post box to the unit in question [cannot be considered] to have been effective service under rule 4(1)(a)(v).”
Crucial importance of service
The significance of this judgment adds on to an array of case law which emphasises the crucial importance of service. The court has emphasised the importance of effective service and has scrutinised the specific circumstances of each case to determine whether the chosen mode of service has indeed achieved this goal. Combined, the new amendments and this judgment underscore the importance of legal documents being received. The deliberate inclusion of words like ‘delivery’ suggests not only a more active and deliberate process of serving documents – and thus implying a higher standard of service which is aimed at guaranteeing the documents reaching the intended recipient – but also further narrows the category of instances in which the courts will accept service which falls short of the personal service requirement.
It is clear that while rule 4(1)(a) provides the various modes of alternative service while some are dependent on who the respondent or defendant is (such as statutory bodies or certain corporate entities), the sheriff is necessitated to assess the context of their surroundings at the nominated address accordingly to effect service properly. Litigants and attorneys are reminded to be mindful of the consequences resulting from ineffective service, which causes not only undue delays and the incurring of unnecessary costs by clients but could also very well be responsible for clogging the court roll with rescission applications like the Hamze Trading matter.