Summary of Judgment

1. Introduction

The proceedings took the form of an adjudication of a special plea of prescription raised by the second defendant, TNC Mining (Pty) Ltd (“TNC”), against the plaintiff’s claim. The plaintiff, Mathome Training Development (Pty) Ltd (“Mathome”), sued for payment for services rendered, alternatively damages arising from an alleged breach of contract.

Mathome instituted action proceedings in the High Court (Northern Cape Division, Kimberley) under case number 424/2019, with summons issued on 26 February 2019. The special plea was argued as a preliminary issue, separate from the merits of the contractual claim.

The dispute concerned the timing and legal sufficiency of service of summons for purposes of interrupting prescription under the Prescription Act 68 of 1969, particularly in circumstances where the relevant domicilium citandi et executandi recorded in the applicable service-level arrangement was a post office box.

2. Material Facts

It was common cause that during 2013 Mathome entered into a Service Level Agreement (SLA) with the first defendant, Finsch Diamond Mine Training Centre. In terms of the SLA, Mathome would provide mining training services, and the fees for training interventions would be for the account of TNC. The SLA contemplated commencement of work on 1 July 2013 and continuation until the end of the contract term between TNC and the first defendant or until Mathome’s contract with TNC ended, whichever occurred first.

Mathome pleaded that on 3 March 2016 TNC summarily terminated the agreement without proper cause, and that at that time amounts were outstanding for services rendered. For purposes of the prescription enquiry, it was treated as common cause that the debt became due on 3 March 2016.

Mathome caused summons to be issued on 26 February 2019. The sheriff’s return recorded that on 27 February 2019 service was effected on TNC by affixing the summons to the outer postbox of the domicilium chosen by the first defendant (recorded in the SLA as P.O. Box 7, Lime Acres). The return further stated that a copy was served via registered post to the same post office box and that the parcel was collected by one O.D. Nnosang on 6 March 2019, as informed by Post Office officials.

TNC’s special plea asserted that summons was served on it only on 8 March 2019 (and that, on its version, it was only then that the first defendant handed the summons to TNC), which would have been more than three years after the claim fell due on 3 March 2016. Although questions about whether service complied with Rule 4 were not expressly pleaded as part of the special plea, the adequacy of service became contentious during oral argument.

3. Legal Issues

The central question was whether Mathome’s claim had been extinguished by prescription due to alleged late service, which required determination of when service on TNC occurred for purposes of judicial interruption of prescription.

This was primarily a dispute about the application of legal rules to essentially common-cause facts, namely the date the debt became due, the steps taken by the sheriff, and the nature of the chosen domicilium (a post office box). The court was required to determine whether the steps recorded in the sheriff’s return constituted timeous service as contemplated by Uniform Rule 4(1)(a)(iv) and section 15(1) of the Prescription Act, and, if so, when such service should be regarded as having been effected.

A subsidiary issue, arising during argument, was whether objections to service should properly have been raised via a Rule 30 irregular-step procedure rather than being advanced under the rubric of prescription.

4. Court’s Reasoning

The court approached the matter from the premise that the debt became due on 3 March 2016 and, absent interruption, would prescribe after three years under section 11(d) of the Prescription Act 68 of 1969, i.e. around 3 March 2019. The determinative question was therefore whether the summons was served on TNC in time to interrupt prescription as contemplated in section 15(1) of the Prescription Act, which provides that prescription is interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

On the procedural point, the court noted that TNC’s special plea did not place in issue proper service in terms of Rule 4, yet service became an issue during argument. The court observed that complaints about the manner of service would ordinarily have been more appropriately dealt with by way of a Rule 30 application to set aside service as an irregular step, if TNC wished to take that route. The court referred in this context to Scott and Another v Ninza 1999 (4) SA 820 (E) and noted a contrary view mentioned but not decided in Prism Payment Technologies v Altech Information Technologies (Pty) Ltd and others 2012 (5) SA 267 (GSJ).

Turning to the substance, the court identified that Rule 4(1)(a)(iv) authorises service where a domicilium has been chosen “by delivering or leaving a copy thereof at the domicilium so chosen”. The difficulty in the present matter was that the chosen domicilium was a post office box, which does not readily accommodate ordinary physical modalities of service such as handing documents to a person at an address, slipping them under a door, or affixing them to a door.

The court relied on Amcoal Collieries Ltd v Truter 1990 (1) SA 1 (AD) for the proposition that it is a well-established practice recognised by Rule 4(1)(a)(iv) that service at a chosen domicilium is good service, even in circumstances where the defendant cannot be found, has abandoned the property, or the site is vacant. The court treated this as confirming the generally robust consequences of a contractual election of domicilium for service, while recognising that the practical mechanism of “delivery” or “leaving” must still be satisfied.

The court considered Absa Bank Limited v Mare and Others (A56/2019) [2020] SAGPHC 372 (20 August 2020), in which the court held that service was not proper in terms of Rule 4(1)(a)(iv) where the sheriff affixed the summons to grass in circumstances where other obvious means of service at a residential domicilium were available. Importantly for the present case, the court highlighted the aspect of Mare recognising that the manner in which process may be delivered or left at a domicilium is not prescribed and depends on the prevailing circumstances.

Applying those principles, the court reasoned that where the domicilium is a post office box, it is difficult to conceive of a scenario in which the sheriff can effect service in the ways typically associated with a physical address. The sheriff’s act of merely affixing the summons to the postbox, if standing alone, was regarded as likely insufficient in light of Mare. However, the sheriff did more than affixing: the return recorded that the summons was also sent by registered mail to the chosen post office box.

To assess the legal effect of registered post, the court invoked section 7 of the Interpretation Act 33 of 1957, which provides that where a law authorises or requires a document to be served by post, service is deemed to be effected by properly addressing, prepaying, and posting a registered letter containing the document, and (unless the contrary is proved) to have been effected at the time the letter would be delivered in the ordinary course of post. The court’s reasoning treated this as supporting the conclusion that, in the context of a post office box domicilium, service by registered post can constitute the relevant “delivery” or “leaving” at the domicilium.

The court further referred to A to Z Bazaar (Pty) Ltd v Minister of Agriculture 1975 (3) SA 468 (AD) for the ordinary meaning of “delivery” as involving transfer into another’s possession or keeping, and in the postal context, for the proposition that delivery is completed when the statement actually reaches the relevant post office box. Using that approach, the court concluded that service should not be equated to the date on which the first defendant collected the registered item (6 March 2019) or when it later forwarded it to TNC (8 March 2019). Instead, the legally relevant moment was when the summons reached the post office box selected as domicilium.

On the facts, the court found that legal service took place when the summons reached P.O. Box 7, Lime Acres, which would most likely have been 27 February 2019 (when the sheriff attended at the Lime Acres Post Office and affixed the summons to the postbox) or shortly thereafter. On this reasoning, service occurred within the three-year period, and the running of prescription was therefore interrupted in time. The special plea accordingly could not succeed.

5. Outcome and Relief

The court dismissed TNC’s special plea of prescription. The court ordered that the special plea is dismissed with costs.

Cases Cited

Scott and Another v Ninza 1999 (4) SA 820 (E).

Prism Payment Technologies v Altech Information Technologies (Pty) Ltd and others 2012 (5) SA 267 (GSJ).

Amcoal Collieries Ltd v Truter 1990 (1) SA 1 (AD).

Pretoria Hypotheck Maatschappy v Groenewald 1915 TPD 170.

Muller v Mulbarton Gardens (Pty) Ltd 1972 (1) SA 328 (W).

Loryan (Pty) Ltd v Solarsh Tea & Coffee (Pty) Ltd 1984 (3) SA 834 (W).

Absa Bank Limited v Mare and Others (A56/2019) [2020] SAGPHC 372 (20 August 2020).

A to Z Bazaar (Pty) Ltd v Minister of Agriculture 1975 (3) SA 468 (AD).

Legislation Cited

Prescription Act 68 of 1969, section 11(d) and section 15(1).

Interpretation Act 33 of 1957, section 7.

Rules of Court Cited

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

Uniform Rules of Court, Rule 30.

Held

The court held that the plaintiff’s summons was served timeously for purposes of interrupting prescription, notwithstanding that the domicilium was a post office box and notwithstanding that the registered item was collected (and later forwarded to TNC) only after the three-year period would otherwise have expired. Service was treated as legally effective when the summons reached the chosen post office box, which the court found occurred on 27 February 2019 or shortly thereafter, and therefore before prescription would have completed.

The special plea of prescription was accordingly dismissed with costs.

LEGAL PRINCIPLES

A contractual choice of domicilium citandi et executandi permits service of court process at the chosen address in accordance with Uniform Rule 4(1)(a)(iv), and such service is generally treated as good service even if the defendant is not personally reached at that moment, consistent with the established approach to domicilium clauses.

The method by which process is “delivered or left” at a domicilium under Rule 4(1)(a)(iv) is not rigidly prescribed and depends on the circumstances, with the adequacy of a method assessed contextually.

Where the chosen domicilium is a post office box, service by registered post may satisfy the requirement of delivery or leaving process at that domicilium, supported by section 7 of the Interpretation Act 33 of 1957 and the concept that delivery by post is completed when the document reaches the post office box. For purposes of prescription, the date of actual collection of the registered item, or subsequent internal forwarding to another party, is not necessarily determinative of when legal service occurred.

Under section 15(1) of the Prescription Act 68 of 1969, the running of prescription is interrupted by the service on the debtor of process claiming payment of the debt; accordingly, determining the legally operative date of service is central to deciding a plea of prescription in such circumstances.