Picture this: you loan money to a friend and then not only don’t repay it, they also cut off communications with you and you find out they have moved to a foreign country. You need to claim the money back; it was a sizeable chunk of your savings, and you are not in a position to write the betrayal off as a lesson learnt. So, you decide to institute legal proceedings against them to recover the funds, only to learn that the process is made immeasurably more difficult by the fact that your friend has decided to spend your hard-earned money on living it up in the French Riviera.
Earlier this year,[1] we highlighted the importance of service of court documents and how something seemingly so innocuous as service has the ability to entirely destroy a legal claim. As outlined then, it may be that issues with service (such as the incorrect interpretation and execution of a domicilium clause)[2] are only discovered and disputed at a later stage, when is too late (due to the prescription of the claim) to correct the error. However, quite often, there will be issues with service that are move obvious at inception.
Sometimes parties in litigation will continually not be found at home and the sheriff must attend at the property over and over again to find them. It is always best, in this case, to provide the Sheriff with a copy of the contact number of the party being served, to avoid racking up costs in attempts of service, as the Sheriff can then arrange a suitable time for service. Sometimes, the address for service may be incorrect as the party being served has moved residences or work addresses. In this case, the use of a tracing agent working on a no-trace, no-fee basis is usually the way to go to ascertain an accurate address. Other times, the parties may actively be avoiding being served.
The law has taken cognizance that there may be difficulties with serving court documents on parties, for various reasons, and has provided two mechanisms to ensure the proper administration of justice in these cases. There are several methods of service available to any party in litigation[3], but in the event of these methods being unavailable, two mechanisms are provided for in the Rules of Court:
- Edictal citation: where the Respondent is outside of South Africa;
- Substituted service: where an alternate type of service is required (which is not usually allowed by the Rules of Court), often due to practicality[4] or to the Respondent evading the ordinary types of service, but where the defendant is believed to be within the boundaries of the Republic.
Both of these methods of service require a prior application to court, governed by the relevant principles in the Magistrates’ Court Rules or Uniform Rules of Court (for use in High Courts) respectively, to ensure that the court’s permission is obtained before service. Substituted service will be discussed in more detail in a further entry to our Series on Service.
The rationale behind edictal citation
The reason for denying service on parties outside of the country as a matter of course is a legitimate one. The ordinary summons commences with an instruction to the Sheriff of the relevant area to inform the defendant of the institution of a claim in accordance with an attached Particulars of Claim[5] of Declaration.[6] A South African Sheriff is not empowered to serve a document in a foreign country and the court is not empowered to command another in a foreign country to serve same.[7] Therefore, a court must exercise judicial oversight over the process of service and be satisfied that service will be properly effected if it grants the requested permission.
The basics of edictal citation
In terms of Uniform Rule 5(2), an applicant, when suing by edict is required to provide to the court the details of:
- The nature and extent of his claim;
- The grounds on which it is based upon which the court has jurisdiction to entertain the matter;
- The manner of service which the court is to authorise.
Magistrates’ Court Rule 10 substantively mirrors the requirements of Uniform Rule 5. It is important to note that both Magistrates’ Court Rule 10(3) and Uniform Rule 5(3) make it clear that such an edictal citation application is only necessary in the case of instituting a proceeding. However, no further applications, supported by papers, are necessary for subsequent service of pleadings (as the court dealing with the matter is empowered to make orders for service as it deems fit).
It is also important to note that applications for edictal citation are ordinarily brought ex parte, generally with no notice given to the opposing party.[8] However, beware that the court must be taken into full confidence when approaching it for relief and failure to do so many result in adverse effects. Besides being used in debt recovery matters, suing by edict is often used in divorce actions where one spouse is abroad. This can lead to competing jurisdictions for divorce actions.
The practicalities
Once an applicant has been granted leave to sue by edict, they must then effect service in the manner specified and permitted in the granted order. This may mean that the applicant must arrange for service to be effected by the sheriff in the foreign jurisdiction, or that another suitable type of service provider must be appointed to ensure personal service.
Possible pitfalls
In Schlesinger vs Schlesinger, the respondent had brought an application for edictal citation with “a reckless disregard for the full and true facts in an effort to obtain some tactical advantage over the applicant” in circumstances where divorce proceedings were pending in another jurisdiction.[9] She had omitted certain facts about a lawsuit pending between the parties in a foreign court[10] and changes in circumstance regarding the Applicant’s domicile.[11] Le Roux J held that the court has a duty in the case of ex parte proceedings, not to tolerate “serious and deliberate breaches” of the applicant’s duty to place all material facts before the court in ex parte proceedings.[12]
It is therefore of utmost importance to be completely frank with the court in respect of all factors that may be relevant to a court’s determination of the matter.
However, in the subsequent case of Kerbel v Kerbel,[13] it was held that granting of the edictal citation, however, is not discretionary and the court cannot decide, at the stage of suing by edict, that a multiplicity of actions is undesirable.[14] In the view of Coetzee DJP, at this stage, the court’s only power is its ordinary one of ensuring that vexatious or frivolous proceedings not to be taken,[15] but that it would then be up to the parties to raise the lis alibi pendens, if they so wish.
Founding or confirming of jurisdiction
Ordinarily, granting of an edictal citation application can be quite straightforward, because, as Coetzee DJP says, the granting of the order is not discretionary. If the application covers all the necessary jurisdictional facts, it should in theory be per se granted. This can become more complicated if there is also a need to found or confirm jurisdiction, to ensure that the court indeed has the necessary jurisdiction to hear the matter.
Section 21(3) of the Superior Courts Act empowers a court to issue an order for attachment of property to confirm jurisdiction. Applications to confirm or found jurisdiction will be necessary if the defendant is a peregrinus[16] of South Africa and not domiciled in South Africa (as opposed to a local peregrinus, who is a foreigner domiciled in South Africa). If the cause of action arose in the present jurisdiction, then an application to confirm jurisdiction (essentially, strengthening jurisdiction) can be brought.[17] If the plaintiff resides or is domiciled in South Africa, then an application to found jurisdiction (essentially, creating a ground of jurisdiction) can be brought.[18] Both of these applications require that there is property of the defendant present within the borders of South Africa.[19] A case such as Meihuizen Freight (Pty) Ltd v Transportes Maritimos de Portugal LDA[20] is one such example to illustrate that the facts of a single matter may require the attachment of property to found and confirm jurisdiction against various parties, as well as leave to sue by way of edictal citation.
All this to say…
It is entirely possible that the most apparently minor of formal requirements can cause significant delays in the prosecution and finalisation of a claim. It is essential, as a potential claimant, to understand what your recourse is and to have your matter in the safe hands of experienced attorneys who will be able to foresee any speedbumps along the way. Contact [email protected], should you require any feedback.
[1] https://adriaansattorneys.com/signed-sealed-and-delivered-the-importance-of-proper-service/. [2] The domicilium citandi et executandi is an address chosen for service during legal proceedings and is ordinarily added as a clause to a contract, with both parties nominating their chosen domicilium and agreeing that service at this address constitutes effective service [3] Uniform Rule 4(1) (as promulgated through the enabling Supreme Court Act 59 of 1959 read with Rules Board for Courts of Law Act 107 of 1985 and updated from time to time per Government Gazette) and Magistrates’ Court Rule 9(3) (as promulgated through the enabling Magistrates’ Court Act 32 of 1944 read with Rules Board for Courts of Law Act 107 of 1985 and updated from time to time per Government Gazette). [4] For instance, where there are hundreds of occupants in a mass eviction application, substituted service will be more practical and cost effective. Instead of the sheriff individually serving each occupant and drawing up Returns of Service for each occupant, a certain number of notices will be affixed throughout the property, for all occupants to see and the sheriff will read the contents thereof with a loudhailer upon service. [5] In the event of a combined summons, which is the most common type of summons. [6] Used with simple summons, where there is a fixed debt or a liquidated demand (where the amount due is not disputed). [7] Kerbel v Kerbel 1987 3 All SA 33 (W) at 36. [8] Schlesinger v Schlesinger 1979 3 All SA 780 (W) at 346. [9] Schlesinger v Schlesinger 1979 3 All SA 780 (W) at 354. [10] Which circumstances relates to a legal term named lis alibi pendens. [11] Schlesinger v Schlesinger 1979 3 All SA 780 (W) at 345. [12] Schlesinger v Schlesinger 1979 3 All SA 780 (W) at 353. [13] Kerbel v Kerbel 1987 3 All 33 (W). [14] Kerbel v Kerbel 1987 3 All 33 (W) at 567. [15] Kerbel v Kerbel 1987 3 All 33 (W) at 36. [16] The Roman legal term meaning foreigner; of Latin origin. [17] Peté & others Civil Procedure: A Practical Guide 3rd ed (2016) at section at 3.5.1(a). [18] Peté & others Civil Procedure: A Practical Guide 3rd ed (2016) at section at 3.5.1(a). [19] Peté & others Civil Procedure: A Practical Guide 3rd ed (2016) at section at 3.5.1(a). [20] 2004 3 All SA 289 (SCA)Associate
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.
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