A company with a default judgment against it succeeded in getting the judgement overturned. Picture: File
A company with a default judgment against it succeeded in getting the judgement overturned, because the sheriff of the court had posted the summons on a postbox at the entrance of a complex given as the domicilium address of the company.
Hamze Trading (applicant) turned to the Gauteng High Court, Johannesburg, as it only got wind of the judgment against it months after it was handed down. The judgment stemmed from a business deal which went sour between it and a company called Alf’s Tippers (respondent).
The applicant said the sheriff should have made another plan when he arrived at the address to serve the summons and found no one there. Thus it asked for the rescission of the judgment granted by default in the respondent’s favour in October 2022.
In terms of a contract concluded between the two companies, the respondent was to provide tipper trucks with drivers to the applicant. But the applicant was not satisfied with the service and terminated the contract.
The respondent issued summons against the applicant in June 2022 for payment of R292,575.54.
The sheriff served the summons on the applicant at its registered office, a secure residential complex. A notice of set-down of the matter was served at the same address. In both cases, having made a diligent search, the sheriff decided that there was no other means of effecting service and so affixed the document to the post box of the unit of the applicant.
The court was told that the sheriff served the summons on the applicant at its registered office - a complex in Kimberley. Four months later, the sheriff again served a notice of set down for the case to be heard - yet again fixing the notice to the post box.
In both cases, having made a diligent search, the sheriff decided that there was no other means of effecting service and affixed the documents to the post box of the unit of the applicant. As was borne out by a picture handed to court, 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.
In opposing the application, the respondents argued that the documents would have been clearly visible to anyone entering the complex.
But, the applicant said its attorney only informed them months down the line, after the horse had bolted, about the judgment obtained in its absence.
Acting Judge JJ Meiring said it was a fundamental principle of our legal system that respondents are entitled to get notice of legal proceedings against them. The purpose of a summons or a notice of motion is to implicate or involve a defendant or respondent in a suit.
Although an action is commenced when summons are issued, the defendant is not involved until there has been service. It is only then that a formal claim is made upon it. Only once service has been effected of the summons or notice of motion, is the defendant or respondent implicated.
The law provides the manner in which service of any process of the court directed to the sheriff shall be effected by the sheriff. This is usually by delivering or leaving a copy of the document at the chosen domicilium of the affected party.
The law provides that, for a corporation or company, the sheriff might deliver a copy of the document to a responsible employee at its registered office or its principal place of business, or if there is no such employee willing to accept service, by affixing a copy to the main door of such office or place of business.
Judge Meiring said it was unfortunate that the applicant chose a registered office that it must have known would make service of documents by the sheriff very difficult, if not impossible.
Yet, it was not the court’s role to punish the applicant for that decision, he said.
“Contrariwise, it is also unfortunate that the sheriff did no more than affix the summons and the notice of set-down to the post box in question.”
The judge added that the court had no way of knowing whether at times the entrance where the post boxes are located, becomes a wind tunnel in which documents, however sturdily affixed, might be swept away.
“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, I might have been more sanguine on the effectiveness of the service,” the judge said in finding that the service was not effective in terms of the law.
Pretoria News
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