THE A, B AND C OF SERVICE OF LEGAL DOCUMENTS

How are legal documents supposed to be served, and what is regarded as invalid service?

Purpose of service of legal documents:

The fundamental rule with regards to service is that the court must be satisfied that the defendant or respondent has received these documents and is therefore aware that legal proceedings are being brought against him/her. Erasmus stated in his book, Superior Court Practice: “It is a cornerstone of our legal system that a person is entitled to notice of legal proceedings against him”.

Service on person’s residence or place of business:

The ideal would be that the service of all legal documents should be effected via personal service. However, due to the fact that people on the wrong side of the law are often very evasive, service can be effected on any person above the age of 16 years, who is apparently resident at the residence of the person to be served/employed at the place of business of the person to be served.[1]

Service on a domicilium address:

A domicilium address is a regular term of the most modern contracts and means that the contracting party chooses an address where all legal notices and documents may be served, by delivering or leaving the document to be served at such address.[2] This could be a potentially dangerous term, especially with regards to contracts which are being renewed annually, but of which the content is not necessarily updated as regularly as it should be. It often leads to documents being served at an address where a person is no longer resident or carrying on business, and where the person has neglected to update such information in the contracts which he/she concluded.

Service of legal documents on a company/closed corporation:

Service of legal documents in which a company or close corporation are to be served, are effected by serving such documentation at the company/closed corporation’s registered address or principle place of business.[3] Because a company/close corporation’s principle place of business often differs from their registered address, this could also lead to a company/closed corporation changing the place at which it conducts business, but neglecting to change their registered address, causing legal documents served at the registered address not coming under its attention.

Invalid Service

Rule 9(3) of the Magistrates’ Court Rules determines that a court may, if there is reason to doubt whether the process served has come to the actual knowledge of the person to be served, treat such service as invalid. Thus if a judgment was granted against a defendant on whom there did not occur proper service of the summons as explained above, it would be a ground for rescission of such judgment.

Preferable method of service:

Personal service should be used whenever possible, and the other methods of service provided for in the rules should only be used where the Defendant is elusive or untraceable. In O’Donoghue v Human[4]  the following is stated: “what the Court requires in regard to service of a summons is that it be served in the best possible manner likely to bring the summons to the attention of the defendant. Rule 4 appears to contemplate that, if possible, service should be personal, and that only if the defendant or respondent cannot after diligent search be found may some other authorised form of service be adopted. The whole purpose is to take the most effective steps possible to ensure that the summons comes to the Defendant’s notice.”

[1] Rule 9(a) – (c) of the Magistrate’s Courts Rules

[2] Rule 9(d) of the Magistrate’s Court Rules

[3] Rule 9(e) of the Magistrate’s Court Rules

[4] 1969 (4) SA 35 (E) par. 4

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference List:

• Magistrate’s Court Rules
• O’Donoghue v Human 1969 (4) SA 35 (E)