Of all the possible things that could go wrong during a hearing in court, proper service is possibly one of the most common, yet majorly underestimated issues, which exists. I have, on the countless days of appearing in court, observed Magistrates berating candidate attorneys – and even sometimes more senior attorneys and counsel – for issues with the manner in which service was effected, or the lack of attempt at proper service at all. In evictions, applications in terms of section 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 hinge solely on proper service of the main section 4(1) application, and yet time and time again, I have observed problems in court with service.
As sheriffs are creatures of statute,[1] strict compliance with the Magistrates’ Court Rules[2] or Uniform Rules of Court[3] is required. Service in the Magistrates’ Court or the High Court are governed primarily by Magistrates’ Court Rule 9 and Uniform Rule 4 respectively. The High Court enjoys a judicial discretion contained in Uniform Rule 4(10), to take steps as it deems fit to assure the court of the effectiveness of the service. The judicial officers of the Magistrates’ Court, enjoy no such power and service must be strictly compliant with the Magistrates’ Court Rules. Therefore, if there are problems with service in the High Court, Judges have the power to condone any missteps with the proper implementation of the Rules, if such condonation is deemed to be in the interest of justice; the same is not true in the Magistrates’ Court. The Magistrates’ Court Rules otherwise function similarly to the Uniform Rules of Court.
These days, it is common practice for opposing attorneys in a matter to agree, at the commencement of the matter, to accept electronic service, given the convenience, saved costs and expedience of electronic service. In my experience, a sheriff would serve a document on normal service within 7-10 business days or earlier depending on their availability, but this may vary per region. Urgent service, either on same day or within 1-3 days, is much more expensive. Given short time periods specified in the Rules to draft, settle and serve documents – including taking instructions from clients who have many other pressing demands on their time – electronic service significantly reduces the financial strain on the client and eases the attorney’s race to timeously take instructions on the next pleading.
However, sometimes, matters are not opposed, or the Defendant or Applicant does not appoint attorneys, and they do not wish to consent to electronic service. In such cases, service would then need to be effected by the sheriff. At the commencement of a matter, it would also usually be proper to effect service by sheriff on the respondent or defendant themselves, as they would not yet have appointed attorneys for the specific matter as yet, even if they appointed attorneys for other matters which may or may not be related.
Service in the High Court is allowed by delivering a copy of the document to the party to the proceeding personally,[4] or to the place of residence or business of the person, their representative or to the person apparently in charge of the premises at the time of delivery, being a person apparently not less than sixteen years of age.[5] It can also be served, inter alia, at the place of employment of the person or their representative,[6] or at the chosen domicilium citandi and in the latter case may “leave a copy” at the domicilium.[7]
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. Many such clauses explicitly include a provision obliging the parties to provide notice to their contracting counterpart of any change in domicilium, but it is generally accepted that, in absence of such an update, service on the agreed domicilium is still valid. Care must be exercised, however, to ensure that the details of the agreed address are properly followed through.
In Shepard v Emmerich,[8] service at a chosen domicilium was found to be invalid, not because the respondent had moved offices (as service still could have been effective in this case), but because the domiciulium chosen mentioned the second floor of a building and for a specific person’s attention. The appellants had not directed the service of the summons to the second floor or to the specific person, but merely had the summons affixed to the front door of the building. Affixing means that, where the sheriff isn’t able to effect service on a person, the document is attached to a gate, a board or other place, for the recipient’s attention. Exact compliance with the nominated domicilium is therefore required before the protection service on a domicilium affords can be relied on.
Of the several methods of serving parties to litigation contained in Rule 4 of the Uniform Rules of Court (“Rule 4”), the possibility of affixing has been found to be rather problematic by courts. In Nedbank Limited v Conco (“Conco”),[9] Mantame J highlights the construction of Uniform Rule 4(1)(a)(iv) as amended on 27 December 2024 including the possibility of, in the case of service on a domiciliary address, leaving a copy at the domicilium if no person is present at the domicilium. Attention was drawn to personal service being preferred. Mantame J added that “[i]t is an established principle that if a defendant has chosen a domicilium citandi, service of process at such place will be good, even though it be a vacant piece of ground, or the defendant is known to be resident abroad, or has abandoned the property, or cannot be found”.[10]
It was added however, that case law has refined this principle over time, to the effect that documents cannot be served by leaving them on open land or affixed to a door or outer gate.[11] It was also noted that service in other manners besides on a domicilium are not precluded and other prescribed manners of service should be considered if proper service at a domiciliary address is not possible.[12] It was also noted that the party with a nominated domiciliary address bears the risk of non-receipt, if they elected a certain address.[13]
The interpretation of the word “leave” in Rule 4(1)(a)(iv) constituted the crux of the dispute in Conco. Whether this allowed for affixing or required the service document to be handed to a person was debated. Mantame J stated, “leaving a copy in the context of this rule will not at all suggest that a process be abandoned, or left in a place where it would be literally blown by the wind, burned by veld fires, or be placed in an obscure place.”[14] Mantame J further warned against leaving the documents in a place where members of the public would have sight or gain access of it, as this would undermine the person’s privacy rights.[15] The Rule does not make reference to “affixing” except in Rule 4(1)(a)(v), in the case of a corporation or company at its registered office or principal place of business, and Mantame J found affixing to a door to be insufficient.[16]
The Sheriff is also required to account in detail for the location, time, method and rationale for service being conducted how it was.[17] The defendant must consider whether another method of service is better, should the sheriff have difficulty serving on a given address.[18]
In many matters involving disputes over service, the time for interrupting summons has passed and it therefore becomes very important that an earlier date of service of summons, as in dispute, constituted effective service from the outset. As you can see, something seemingly so secondary, has extensive potential implications as it can can severely prejudice a matter and prevent a person from receiving relief to which they otherwise may have been entitled, had there not been any problems with service.
Hopefully, we have impressed upon you the exacting nature of service and how important something so seemingly trivial can be. It is therefore very important that you appoint an attorney who will pay the necessary heed to these details and also that you provide your attorneys with full details of the respondent or defendant to be served. Our next article on the issue of service will follow later in the year, with a detailed breakdown on alternate methods of service where service proves especially problematic, including service via edictal citation and substituted service. Stay tuned!
[1] City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) para 8. [2] 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. [3] 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. [4] Uniform Rule 4(1)(a)(i). [5] Uniform Rule 4(1)(a)(ii). [6] Unform Rule 4(1)(a)(iii) [7] Unform Rule 4(1)(a)(iv) [8] 2015 (3) SA 309 (GJ). [9] [2026] JOL 73167 (WCC). [10] Para 43. [11] Para 44. [12] Para 44. [13] Para 45. [14] Para 51. [15] Para 51. [16] Para 52. [17] Para 55. [18] Para 55.By Jade Rautenbach
Associate at Adriaans Attorneys
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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