Summary of Judgment

1. Introduction

This matter concerned an application for default judgment brought in the Gauteng Local Division, Johannesburg. The plaintiff, Nedbank Limited, had instituted action proceedings by issuing a combined summons against the defendant, Bennita Pinky Dube, claiming payment of a monetary amount said to arise from an alleged contractual breach.

The procedural history was short and largely interlocutory in character. After issuing summons on 23 November 2021, the plaintiff proceeded on the basis that the summons had been served and that the defendant had failed to deliver a notice of intention to defend within the prescribed time. The plaintiff then enrolled a default judgment application dated 26 January 2022.

On 22 February 2022, the court (Movshovich AJ) made an order dismissing the default judgment application. The plaintiff thereafter requested reasons, which the court provided in writing on 22 April 2022.

The general subject-matter of the dispute, as presented to the court, was whether the plaintiff had satisfied the procedural prerequisites for default judgment, particularly the requirement of proper service of the initiating process under the Uniform Rules of Court, and whether the plaintiff could seek a costs order in the application that differed from what had been prayed for in the summons.

2. Material Facts

The plaintiff issued a combined summons out of the High Court on 23 November 2021, claiming damages, interest, and costs on the basis of an alleged contractual breach by the defendant. The amount claimed in the default judgment application was R114,431.25, together with interest at the rate claimed in the summons, and costs.

The default judgment application proceeded on the assertion that the combined summons had been served on the defendant on 9 December 2021, and that the dies induciae for delivering a notice of intention to defend expired on 26 January 2022 without any response from the defendant. The application was thus framed on the premise that the matter was unopposed and ripe for default judgment.

A central factual feature relied on by the plaintiff was the sheriff’s return of service dated 13 December 2021, which recorded that service had been effected by affixing the summons to the principal gate at “25 Hibiscus Lane Complex, 7 Jacaranda Avenue, Craigavon AH, Fourways” (described in the return as the relevant service address). The return further stated that this address was the defendant’s domicilium citandi et executandi.

The court treated it as material that, on the pleadings themselves, the address was described in the combined summons as the address where the defendant was allegedly “residing”, and not as a chosen domicilium citandi et executandi. The court highlighted that neither the summons nor the default judgment application contained an allegation that the defendant had chosen a domicilium at that address.

In addition, the court noted a discrepancy in the costs relief sought. The summons prayed for costs on the magistrates’ court scale, whereas the default judgment application sought costs on an attorney-and-client scale. The court treated this as a distinct defect in the relief sought in the application.

3. Legal Issues

The central legal questions were procedural and concerned the application of law to fact. The court was required to determine whether the plaintiff had established, on a balance of probabilities, that service of the combined summons was effected in a manner recognised by the Uniform Rules of Court, such that default judgment could competently be granted.

A further issue (though not dispositive of the entire application in the court’s analysis) was whether the plaintiff could seek, in a default judgment application, a costs order broader than the costs relief claimed in the summons. This similarly involved the application of procedural principles to the relief sought on the papers.

4. Court’s Reasoning

The court approached the matter by emphasising that an application for default judgment is founded on the plaintiff demonstrating compliance with the procedural prerequisites for such relief. A foundational requirement is that the plaintiff must establish, on a balance of probabilities, that the initiating process (here, the combined summons) was properly served by a recognised mode of service.

The court examined the return of service relied upon by the plaintiff. It recorded service by affixing the process to the principal gate at the relevant address. The court considered it significant that the return described the address as the defendant’s domicilium, yet the pleadings did not support that characterisation: the combined summons alleged only that it was the defendant’s residential address, and the papers contained no allegation that the defendant had chosen that address as a domicilium.

The court then applied Rule 4 of the Uniform Rules of Court, which sets out permissible forms of service in the absence of a court direction to the contrary. The court highlighted that, where service is effected at a defendant’s place of residence, Rule 4(1)(a)(ii) contemplates leaving a copy of the process with a person apparently in charge of the premises, being a person apparently not less than sixteen years of age. The court contrasted this with the method reflected in the return, namely affixing the summons to the gate, and held that the rules do not treat that method as effective service at a residence in the ordinary course.

The court further explained that affixing process may constitute effective service in the specific circumstance where the defendant has chosen a domicilium citandi, and service is effected at that domicilium in terms of Rule 4(1)(a)(iv). However, because the plaintiff’s pleaded case did not allege a chosen domicilium, the court held that service by affixing to the gate could not be justified as service at a chosen domicilium under the rules.

On that basis, the court concluded that the plaintiff had failed to satisfy the first requirement for default judgment: the papers (read with the return of service) demonstrated that service had not been properly effected. The court’s reasoning treated this defect as fundamental and dispositive, because absent proper service the defendant could not be treated as being in default in a manner that permitted default judgment.

Separately, the court addressed the costs relief sought. It noted that the summons prayed for costs on the magistrates’ court scale, and held that it was not open to the plaintiff to seek expanded costs (attorney-and-client) in the default judgment application. The court treated this as an independent basis upon which the costs relief in the application, as formulated, could not succeed, although the dismissal of the application ultimately followed from the service defect.

Finally, because the matter was unopposed and the defendant did not appear or participate, the court considered it appropriate to make no costs order.

5. Outcome and Relief

The court dismissed the plaintiff’s application for default judgment.

No order as to costs was made, the court noting the absence of opposition or representation on the part of the defendant.

The order dismissing the application was made on 22 February 2022, and the reasons were delivered on 22 April 2022.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 4(1)(a)(ii).

Uniform Rules of Court, Rule 4(1)(a)(iv).

Held

The court held that the plaintiff had not established proper service of the combined summons as required for default judgment. Service by affixing the summons to the gate at an address described in the summons merely as the defendant’s residence did not comply with Rule 4(1)(a)(ii), and could not be treated as valid service at a chosen domicilium under Rule 4(1)(a)(iv) because no chosen domicilium was alleged on the pleadings.

The court further held that the plaintiff could not seek a costs order on an attorney-and-client scale in the default judgment application where the summons sought costs on the magistrates’ court scale. In the result, the application for default judgment was dismissed and no costs order was made.

LEGAL PRINCIPLES

Proper service of initiating process is a foundational prerequisite for default judgment, and the plaintiff bears the onus of establishing such service on a balance of probabilities.

Under the Uniform Rules of Court, service at a defendant’s residence is ordinarily effected by delivering the process to a person apparently in charge of the premises who is apparently not less than sixteen years of age, as contemplated in Rule 4(1)(a)(ii); mere affixing of process to a gate or door is not, without more, treated as effective residential service.

Affixing process may constitute effective service where process is delivered at a chosen domicilium citandi, but this depends on the plaintiff’s papers alleging and establishing the existence of such a chosen domicilium, consistent with Rule 4(1)(a)(iv).

A plaintiff cannot seek expanded or different relief in a default judgment application—particularly in relation to costs—that goes beyond what was prayed for in the summons, because the relief claimed in the pleadings frames the relief competent to be granted by default.