top of page

Service of a Summons in terms of an Agreement Perivolaris

If you are being sued, either by way of action or application, the Summons/Notice of Motion must be served on you, either in accordance with the Rules of Court or if the parties have agreed a manner of service, in terms of that agreement. If service is not effected in terms of an agreement, may a Court condone this “non-service”?

This was the question which came on appeal before the Full Bench of the High Court, Johannesburg in the matter between GRETE SHEPARD v JACQUELINE EMMERICH, under case number A5066/2013. In a unanimous Judgment of VAN OOSTEN J, the court confirmed the findings of the court a quo which found that service was defective and accordingly dismissed the appellant’s appeal thus claim with costs.

the facts of the matter were that in terms of an addendum to a sale of business agreement concluded between the appellant and the respondent, the respondent chose the following address as domicilium citandi et executandi:

‘Routledge Modise Moss Morris, 2 Pybus Road, Sandton (Marked for D. Janks 2nd floor)’.

The appellant issued summons against the respondent for payment of the outstanding amount based on the agreement. The summons was served by the deputy sheriff, which, according to the return of service, was effected on ‘c/o Routledge Modise Moss Morris, 2 Pybus road, Sandown, Sandton being the chosen domicilium citandi et executandi of [the respondent]’ by ‘affixing a copy of the combined summons to the principal door’ of the domicilium address. The service, absent service at the second floor of the domicilium address and not marked for the attention of Mr. Janks, therefore, did not strictly comply with the provisions of the domicilium clause.

It was not in dispute that prior to the service of summons, Routledge Modise Moss Morris, had moved offices from the domicilium address and that Mr. Janks had resigned from the firm. The summons did not come to the attention of the respondent and judgment by default was subsequently sought and granted. A writ of execution was authorised and served on the respondent which, according to the respondent, was the first intimation she had received of the pending action. Pursuant thereto the respondent launched an application for rescission of the default judgment which was granted. The matter proceeded to trial. At the commencement of the trial, the parties agreed to argue a single point in limine: whether the service of the summons was proper, which, if decided in favour of the appellant, would have interrupted prescription. Having heard argument, the court a quo found that service was defective, that prescription had not been interrupted and accordingly dismissed the appellant’s claim with costs.

The court a quo made reference to three foreign authorities (Court of Session (Outer House) Scotland in McMullen Group Holdings Ltd v Harwood [2011] CSOH; 201 GWD 32-600; the Queen’s Bench decision in Anglian Water Services Ltd v Lain O’Rourke Utilities Ltd [2010] EWHC 1529 (TCC); [2011] 1 ALL ER (Comm) 1143; 131 Con LR 94; [2010] 3 EGLR 104; [2010] CILL 2873 and the judgment in Argo Capital Investors Fund SPC for Argo Global Special Situations Fund SP v Essar Steel Ltd [2005] EWHC 2587, concerning the application of the English Civil Procedure Rules) which concluded that where a specific method of effecting service is contractually agreed, that method should be strictly complied with. The appeal court was in agreement with the conclusion arrived at and did not revisit those judgments.

The appeal court consider the question before it with reference to the matter of Gerber v Stolze and others 1951 (2) SA 166 (T), which had to consider whether a nulla bona had been properly served in order to effect valid execution against immovable property. The domicilium clause in the mortgage bond from which the indebtedness of the appellant arose, provided for service to the appellant’s ‘principal at c/o Mr LG Gerber, 21 Cullinan Buildings, Simmonds Street, Johannesburg’. The domicilium clause provided for a double provision: firstly, at a particular place and secondly, on a named person, who happened to be the appellant’s husband. Service of the provisional sentence summons was however, effected by affixing a copy thereof to the principal door of the premises at the domicilium citandi et executandi. The sheriff’s return indicated that the premises were occupied by a certain company and that the sheriff was informed that the appellant’s husband intermittently occupied no. 126 on the third floor of that building. The sheriff further indicated that he was unable to find anyone at no. 126. The court held that the domicilium was chosen at a particular place which the sheriff attended and the fact that the appellant’s husband could not be found did not result in defective service. In the present matter nothing prevented service in strict compliance with the domicilium clause.

In this matter, the double provision in the domicilium clause provided for service on the second floor, which was not effected. The second requirement was a reference to Mr. Janks. This likewise was not complied with. The facts firstly, that the firm had moved and, secondly, that Mr. Janks had resigned are of no moment: it did not and could not change the requirements for a proper service (cf Valentine v Wardon (1929) 13 PH F31; Hollard’s Estae v Kruger 1932 TPD 134 (service at the domicilium citandi et executandi held good despite the fact that the defendant was known to be resident abroad); United Building Society v Steinbach 1942 WLD 3 (service at domicilium address held good despite the defendant having abandoned the property); and, generally, Amcoal Collieries Ltd v Truter 1990 (4) SA 1 (A) 5J-6D). The significance of the changed circumstances is this: had the service been effected in accordance with the domicilium clause, even though the summons did not come to the attention of the respondent due to the changed circumstances, it would have constituted good service.

Counsel for the appellant, with reliance on the judgment in Scott and another v Ninza 1999 (4) SA 820 (E), requested that the defective service be condoned by the court. The appeal court found that matter was clearly distinguishable in that the court dealt with condonation within the framework of the rules of court. Condonation where compliance with a contractual provision, as in this instance the domicilium clause, did not arise. Accordingly, the appeal was dismissed with costs.

In conclusion, either party to legal proceedings must ensure that Summons/Notice of Motions, are served strictly in accordance with the provisions of “domicilium clauses” as agreed to between the parties and are so reflected in the Sheriff’s return of service, otherwise the Plaintiff/Applicant run the risk of having service declared invalid and worse, prescription of the debt not being interrupted and the debt becoming prescribed.

Featured Posts
Recent Posts
Search By Tags
No tags yet.
Follow Us
  • Facebook Basic Square
  • Twitter Basic Square
  • Google+ Basic Square
bottom of page