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[2020] ZASCA 25
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Motloung and Another v The Sheriff, Pretoria East and Others (1394/2018) [2020] ZASCA 25; 2020 (5) SA 123 (SCA) (26 March 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no:
1394/2018
In
the matter between:
JONE
JOHN
MOTLOUNG FIRST
APPELLANT
MOSELE
MERRIAM MOLOI SECOND
APPELLANT
and
THE
SHERIFF, PRETORIA
EAST RESPONDENT
STEINMANN
ATTORNEYS FIRST
THIRD PARTY
CJ
VAN RENSBURG ATTORNEYS SECOND
THIRD PARTY
Neutral
citation:
Motloung
and Another v The Sheriff, Pretoria East and Others
(Case
no 1394/18)
[2020] ZASCA 25
(26 March 2020)
Coram:
SALDULKER, SWAIN and MOLEMELA JJA,
and GORVEN and EKSTEEN AJJA
Heard
:
9 March 2020
Delivered
:
26 March 2020
Summary:
Summons – not signed by
registrar – condonable or nullity – interpretation of
rule 17(3)(c) of the Uniform
Rules of Court – absence of
signature not on the same footing as a summons which had not been
issued – susceptible
to condonation under Uniform Rule 27(3).
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Baqwa J, sitting as court of
first instance):
judgment
reported sub nom
Motloung
& Another v The Sheriff, Pretoria East & Others
[2018]
ZAGPPHC 664;
2019 (3) SA 228
(GP)
.
1
The appeal is upheld
with costs, including the costs of two counsel where so employed.
2
The order of the high
court is set aside and replaced by the following order:
(a) The special plea is dismissed with costs.
(b) The defendant is directed to pay the costs arising
from the exception.
(c) The costs in paragraphs (a) and (b) hereof shall
include the costs of two counsel where so employed.
JUDGMENT
Gorven
AJA (Saldulker, Swain and Molemela JJA and Eksteen AJA concurring)
[1]
The crisp issue in this appeal is whether
a summons which has not been signed by the registrar of the court is
a nullity or a defective
pleading which is condonable under Uniform
Rule 27(3). There are conflicting decisions of two divisions of the
High Court on the
issue. In
Noord-Kaap
Lewendehawe Koöp Beperk v Lombaard
,
[1]
Erasmus J held that such a summons is a nullity and not susceptible
of condonation. In
Chasen
v Ritter
,
[2]
Burger AJ held that the absence of the signature of a registrar could
be condoned.
[2]
The appellants were involved in a motor
vehicle collision on 15 January 2007. They instructed their
attorney to institute
action against the Road Accident Fund (the RAF)
for damages arising from the collision. A summons was prepared and
taken to the
Registrar of the Gauteng Division of the High Court,
Pretoria. The Registrar allocated a case number and stamped the
summons. The
stamp contained the date on which he processed the
summons, his
designation as
Registrar and his
name, BI Ankowitz.
The summons was returned to the attorney for service. It later
emerged, however, that the Registrar had
not signed the summons.
[3]
The appellants’ attorney sent the
summons to the respondent for service. The respondent refused to
serve it. He took the view
that ‘only once a summons is signed
by the Registrar [is it] constituted as a court process’. He
contended that the
summons was a nullity and did not amount to court
process and that he was accordingly not obliged nor permitted to
serve it.
[4]
Because the summons was not served, the
claim against the RAF prescribed. The appellants sued the respondent
for damages arising
from his failure to serve the combined summons.
They averred that, because of this, they were precluded from claiming
from the
RAF. As such, they had suffered damages in the sum which
would have been awarded against the RAF.
[5]
The respondent initially excepted to the
particulars of claim. The exception came before Fourie J in the
Gauteng Division of the
High Court, Pretoria. He did not give a
judgment but instead ordered the respondent to deliver a plea. The
respondent entered a
special plea and pleaded over the merits. The
special plea raised the defence of nullity mentioned above. The
respondent also joined
the two third parties in the action. They took
no part in the aspect of the matter which gave rise to this appeal,
nor in the appeal
itself.
[6]
The special plea was
adjudicated separately, in terms of rule 33(4) of the Uniform Rules
of Court, before Baqwa J in the Gauteng
Division of the High Court,
Pretoria (the court of first instance). It was dealt with on the
basis that the only defect in the
summons was the lack of signature
of the registrar. The sole issue was whether this meant that it was a
nullity and thus did not
amount to court process. The court of first
instance upheld the special plea and dismissed the appellants’
claim,
[3]
but granted leave to appeal to this court.
[7]
This finding was
squarely based on the decision in
Lombaard
and on the following obiter dictum of Rumpff JA in
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
:
[4]
‘
A summons that is not issued by the
registrar would be a nullity and service of such a summons would not
result in action being
instituted.’
[5]
Lombaard
held that, because rule 17(3)
(c)
requires a registrar to issue and sign a summons, where the original
summons has not been signed by the registrar, the sheriff
had
no lawful direction to serve it.
[6]
The court of first instance concluded:
‘
What can be gleaned from both the
Republikeinse Publikasies
and
Noord-Kaap Lewendehawe Koöp
decisions is that the signature and its issuing being joined by the
conjuctive “and” are critical components of the
Registrar’s instruction. It goes without saying that absent one
or two of those requirements, the document is visited with
nullity.’
[7]
[8]
Rule 17 deals with
the provisions relating to summonses. The requirement that the
registrar must sign a summons is found in
rule 17(3)
(c)
.
The proper approach to this matter lies in the interpretation of the
provisions of rule 17(3)
(c)
in the context of the rules as a whole.
[8]
[9]
The established
approach to interpretation was set out by this court in
Endumeni
Municipality
:
[9]
‘Whatever the nature of the document, consideration must
be given to the language used in the light of the ordinary
rules of
grammar and syntax; the context in which the provision appears; the
apparent purpose to which it is directed and the material
known to
those responsible for its production.’
To
this must be added what was said in
Cool Ideas
1186 CC v Hubbard and Another
:
[10]
‘A fundamental tenet of statutory interpretation is that the
words in a statute must be given their ordinary grammatical
meaning,
unless to do so would result in an absurdity. There are three
important interrelated riders to this general
principle, namely:
(a) that statutory provisions should always be interpreted
purposively;
(b) the relevant statutory provision must be properly
contextualised; and
(c) all statutes must be construed consistently with the
Constitution, that is, where reasonably possible, legislative
provisions
ought to be interpreted to preserve their constitutional
validity. This proviso to the general principle is closely related to
the purposive approach referred to in (a).’
[10]
The starting point is
the wording of a provision. The relevant parts of rule 17 provide:
‘
(1) Every person making a claim against any
other person may, through the office of the registrar, sue out a
summons or a combined
summons addressed to the sheriff directing him
to inform the defendant
inter
alia
that, if he disputes the
claim, and wishes to defend he shall —
…
.
(3)
(a)
Every summons shall be signed by the
attorney acting for the plaintiff and shall bear an attorney’s
physical address,
within 15 kilometres of the office of the
registrar, the attorney’s postal address and, where available,
the attorney’s
facsimile address and electronic mail address.
. . .
(c)
After
paragraph
(a)
or
(b)
has
been complied with, the summons shall be signed and issued by the
registrar and made returnable by the Sheriff to the
court through the
registrar.’
[11]
What,
then, of the language used in rule 17(3)
(c)
?
[11]
The rule says that the
‘summons
shall
be signed and issued by the registrar’.
[12]
The word ‘shall’ does not necessarily denote a peremptory
provision.
In
Sutter
v Scheepers
,
[13]
Wessels JA suggested how to arrive at the ‘real intention’
of such a provision. His approach was helpfully summarised,
in
Pio
v Franklin NO
, as follows:
[14]
‘(1) The word “shall” when used in a statute is
rather to be considered as peremptory, unless there are other
circumstances which negative this construction.
(2) If a provision is couched in a negative form, it is to be
regarded as a peremptory rather than a directory mandate.
(3) If a provision is couched in positive language and there is no
sanction added in case the requisites are not carried out, then
the
presumption is in favour of an intention to make the provision only
directory.
(4) If when we consider the scope and objects of a provision, we find
that its terms would, if strictly carried out, lead to injustice
and
even fraud, and if there is no explicit statement that the act is to
be void if the conditions are not complied with, or if
no sanction is
added, then the presumption is rather in favour of the provision
being directory.
(5) The history of the legislation also will afford a clue in some
cases.’
In
the present matter, the provision is couched in positive terms. Its
breach carries no sanction at all, let alone one of nullity.
Applied
to the present matter, these guidelines favour an interpretation that
the provision is directory only. However, the first
principle
requires consideration of ‘
other
circumstances which negative this construction.’
[12]
One such circumstance is the dictum of
Rumpff JA in
Republikeinse
Publikasies
concerning a summons which is not issued.
[15]
Another is provided in the matter of
Jongilanga
.
[16]
There
the address of the
respondent’s attorneys given in the summons was more than
eight kilometres from the office of the
registrar. Rule 17(3)
(a)
uses similar terms to those of rule 17(3)
(c)
,
providing:
‘
Every summons
shall
be signed by the attorney acting for the plaintiff and
shall
bear an attorney’s physical address, within 8 kilometres of the
office of the registrar’.
[17]
Eloff AJA distinguished the breach in
Jongilanga
from that referred to by Rumpff JA, explaining:
‘
It stands to reason that when the basic
component of an action, viz the issue of a summons by a Registrar, is
absent, the Court
will not condone the omission.’
[18]
He
held that the requirement to provide an address no further than eight
kilometres from the office of the registrar did not stand
on the same
footing as the requirement that a summons be issued. The latter was,
as he put it, ‘the basic component of an
action’ while
the former was not. Eloff AJA held that although ‘the Rule is
couched in peremptory terms, the Court
has a discretion to condone a
breach of its requirements’. This court has thus held that the
use of ‘shall’ in
rule 17(3)
(a)
makes the provision peremptory. I see no reason why that word should
be construed differently in a different sub-paragraph of rule 17(3).
In my view, therefore, the provision for signature is peremptory.
[13]
The context of
rule 17(3)
(a)
has shed light on one aspect of the rule. Rule 27(3) provides a
broader context and reads:
‘
The court may, on good cause shown, condone
any non-compliance with these Rules.’
The
effect of this was explained in
Northern
Assurance Co Ltd v Somdaka
:
[19]
‘Once it is seen that the Court has a discretion, it seems
to follow inescapably that it was not intended that a breach
of
the Rules relating to actions should necessarily be visited with
nullity.’
The
key word here is ‘necessarily’. Even the breach of a
peremptory provision does not invariably result in nullity.
On the
other hand, the dictum in no way excludes that outcome. The effect of
the breach of the specific provision must be assessed.
[14]
Somdaka
approved the following dictum in
Foster v Carlis and Houthakker
:
[20]
‘But notwithstanding this emphatic language, the Courts have
generally adopted the principles laid down by Lord Campbell
in
The
Liverpool Bank v Turner
[1860] EngR 1047
;
(1861, 30 LJ Ch 379)
where he
said “No universal rule can be laid down as to whether a
mandatory enactment shall be considered as directory
only or
obligatory with an implied nullification for disobedience. It is the
duty of Courts of Justice to try to get at the real
intention of the
Legislature by carefully attending to the whole scope of the statute
to be construed.”’
This
seems to suggest that there are three categories of irregularity;
directory rules whose breach can be condoned, peremptory
rules whose
breach can be condoned and peremptory rules whose breach is visited
with nullity.
[15]
As mentioned,
rule 17(3)
(c)
is couched in peremptory terms. The failure to sign thus breached a
peremptory provision. This does not necessarily mean that it
results
in nullity. It has been seen that, in the context of rule 17(3),
such a breach was condoned in
Jongilanga
.
What, then, is the position in the present matter? Was the breach
condonable or was it visited with nullity?
[16]
Reverting to the
wording, rule 17(3)
(c)
requires two distinctive actions of registrars. They are required to
sign and issue a summons. The use of the word ‘and’
does
not convert these into a single action as appears to have been the
reasoning in the court of first instance.
[21]
All that it does is make the word ‘shall’ applicable to
both actions. Both are peremptory in the context of rule 17(3).
Because the rule distinguishes between two specific and separate acts
required of the registrar, they cannot amount to the same
thing. This
must mean that, factually, one can be done and not the other. A
summons can be signed without it being issued. A summons
can also be
issued without it being signed.
[17]
The significance of the
two different actions for the present matter is that the only
irregularity relied upon is the lack of signature.
This means that we
are here dealing with a summons which has been issued but not signed.
The dictum in
Republikeinse
Publikasies
concerns a summons which has not been issued. This, said Rumpff JA,
would be a nullity. No mention is made in the dictum of the
failure
to sign. The dictum is accordingly not of direct application to the
present matter. It does, however, provide the most
immediate context
in which to interpret the provision, standing as it does in the same
sub-paragraph of the rule.
[18]
There was some debate
in the papers and the heads of argument as to what actions constitute
‘issuing’ a summons. The
appellants submit that a summons
which has taken a route through the office of the registrar has been
issued. This may be somewhat
too broad. It does, however, bear echoes
of the dictum of Innes CJ concerning the meaning of ‘process of
court’ in
Dorfman
v Deputy Sheriff for the Witwatersrand District
[22]
where he held that:
‘
A “process of the court” must
be something which “proceeds” from the court; some step
in legal proceedings
which can only be taken with the aid of the
court or of one of its officers.’
If
the registrar has allocated a case number, that number and the
requisite particulars have been entered into whatever records
are
used by the registrar to regulate the further administrative
procedures relating to the action, and the registrar has dated
and
stamped the summons and then released it for service, this may amount
to issuing a summons. It would certainly constitute a
process of
court as described by Innes CJ. However, it is not necessary in this
matter to determine what is meant by the word ‘issued’
in
the context of the rule. This is because, as pointed out above, we
are dealing with a summons which was issued but not signed.
[19]
It is convenient at
this point to consider the reasoning in
Lombaard
.
It is this on which the respondent relies and was the basis on which
the court of first instance found that ‘absent one
or two of
those requirements, the document is visited with nullity’. In
Lombaard
,
a provisional sentence summons had not been signed by the registrar.
Condonation was sought in terms of rule 27(3) for this
oversight. Erasmus J quoted the dicta in
Republikeinse
Publikasies
and
Jongilanga
mentioned above. He then concluded that the failure to sign was the
most basic component of the summons and is required to lend
legality
to it.
[23]
Based on this, he said:
‘
In my view, the failure of the Registrar to
sign the original summons breached the fundamental requirement of the
summons coming
into operation: it was a nullity’.
[24]
But
this conclusion does not follow from the dicta he relied upon. He did
not recognise that both dicta dealt with the issue of
a summons.
Neither of them dealt with its signature. He appears to have
conflated the two. He certainly did not treat them as two
distinctive
acts required under the rule.
[20]
The contrary authority,
rejected by the court of first instance, is
Chasen
v Ritter
.
[25]
Here, the summons was regular in all respects except for the failure
of the registrar to sign it. A clerk who lacked the requisite
authority had signed some copies of the summons but not that which
was served. Burger AJ noted that the two dicta relied upon in
Lombaard
did not support the conclusion arrived at in that matter.
[26]
He held that the use of the word ‘any’ in rule 27(3)
‘emphasises the absence of any restriction on the Court
to
condone or to waive the requirements of its own Rules.’
[27]
And that ‘[t]he rule, if it does exist, that an irregularity
(but not a nullity) can be condoned is artificial and does not
serve
a real purpose’.
[28]
In other words he did not recognise that a nullity could not be
condoned. He condoned the lack of signature.
[21]
This approach does not
take into account that two dicta of this court have held that the
failure to issue a summons is visited with
nullity. Although those
matters did not interpret rule 17(3)
(c)
,
they related to one of the two actions referred to in that rule. They
say, in effect, that the breach of one of the two requirements
of
that rule cannot be condoned. Burger AJ did not consider the effect
which that might have on the approach to be taken to the
other
requirement of signing a summons. In other words, he did not consider
the most immediate context of the provision for signature
in arriving
at a conclusion on the effect of its breach.
[22]
During argument, mention was
made of
Frost,
Mulligan & Routledge v Rising NO
.
[29]
In that matter the defendant took an exception on the ground that the
copy served was undated and did not bear the name of the
clerk of the
court. There was no issue that the original was dated and contained
his name. A magistrate upheld the exception and
set it aside. Innes
CJ
held that, because a true copy had not
been served, the defendant had not been properly cited. The appeal
was dismissed. However,
the matter is of little assistance to the
respondent in the present proceedings. The reasoning is terse in the
extreme and, in
any event, the issue was limited to a failure to
serve a true copy of the summons.
[30]
[23]
Reverting to the present matter, it has
been seen that an unissued summons is a nullity. Given that this is
the immediate context
for the provision for signature, it is
necessary to determine whether any distinction is to be drawn between
the result of a failure
to sign and that of a failure to issue.
Eloff
AJA distinguished the situation in
Jongilanga
from the failure to issue a summons on the basis that the issuing of
a summons was ‘the basic component of an action’.
[31]
The failure to issue was seen as an example of the breach of a
peremptory provision which leads to nullity. Can it be said that
the
signing of a summons is ‘the basic component of an action’?
[24]
In the first place,
Jongilanga
says issuing a summons is ‘
the
basic component’ rather than ‘
a
basic component’.
[32]
If this is so, no other component is basic. Why might this word have
been chosen? The issue of a summons has been held to initiate
an
action.
[33]
Once it has been issued, litigation has been commenced. An action has
come into existence in which a claim is made against named
defendants. Once service has been effected, they are called on to
defend on pain of judgment. The underlying rationale for this
is that
the registrar has processed the summons. It can be traced in the
court records as having been initiated and has been authorised
by the
registrar to be sent out. After service, failure to defend may result
in a judgment being entered against them, followed
by a writ for
execution. All of these documents will bear the allocated case
number. The authorised court official has placed their
imprimatur on
the summons. This is probably why
Jongilanga
describes it as ‘
the
basic component of an action’
[34]
and why Rumpff JA said that, if not issued, a summons is a nullity.
[25]
The failure to sign stands on an entirely
different footing. No external consequences arise if a summons is
issued but not signed.
An action has been initiated. If no summons
has been issued, litigation has not been initiated. No action has
come into existence
against the named defendants. They may be supine
in the face of such a document without consequence. Once the summons
has been
served, the cited defendants ignore it at their peril.
Failure to sign does not change the status of an issued summons.
Unlike
the failure to issue, it cannot be said to be ‘the basic
component of an action’. It is much the same as any other
peremptory provision of rule 17(3). I do not see how the present
breach differs from the failure to comply with either of the
provisions of rule 17(3)
(a)
.
[26]
As part of the
interpretive exercise, the ‘apparent purpose
to
which it is directed’ must be considered and a ‘purposive
approach’ adopted.
[35]
What, then, might be the purpose of the requirement of signature? It
seems to raise the issue of whether it is the registrar, rather
than
someone else, who has issued the summons. This is, of course, a
factual enquiry which can be established in due course during
the
litigation. If the person who issued was not the registrar and not
authorised, it can be set aside as a nullity. But if it
was issued
and not signed, that does not, in my view, lead to the same result.
Of course, in the present matter, the
registrar’s stamp, bearing his name, was affixed to the
summons. The identity of the
person who issued the summons was thus
clear. It can scarcely be imagined that the registrar would allow
anyone else to use his
personalised stamp. There was no submission
from the respondent that this might have been the case. In any event,
once more, that
is a factual enquiry to be undertaken and reverts to
the question of whether the summons was in fact issued. I can discern
no purpose
in nullifying such a summons.
[27]
This approach is
buttressed by the principle, articulated almost a century ago, that:
‘
The rules of procedure of this Court are
devised for the purpose of administering justice and not of hampering
it, and where the
rules are deficient I shall go as far as I can in
granting orders which would help to further the administration of
justice.’
[36]
In his judgment, sometime after the dictum under
discussion, Rumpff JA cited the above authority and went on to say:
‘
[I]t is desirable to repeat what is of
general application, namely, that the Court does not exist for the
Rules but the Rules for
the Court’.
[37]
And,
in
Trans-African
Insurance Co Ltd v Maluleka
,
[38]
Schreiner JA, in upholding the dismissal of an application to cancel
an admittedly defective summons said:
‘
But on the other hand technical objections
to less than perfect procedural steps should not be permitted, in the
absence of prejudice,
to interfere with the expeditious and, if
possible, inexpensive decision of cases on their real
merits.’
[39]
[28]
All of these dicta
emerged from general principles of our common law applied prior to
the coming into effect of the Constitution.
[40]
But it accords with the principles of the Constitution and thus
complies with the approach to interpretation referred to in
Cool
Ideas
.
[41]
It supports the constitutional right to have disputes adjudicated in
a fair public hearing.
[42]
Overly technical approaches to hinder the courts deciding of genuine
disputes between parties are to be strongly discouraged. The
need for
condonation to show good cause allows for a consideration of
prejudice. If courts are to err at all they should do so
in finding
that irregularities are susceptible of condonation rather than being
necessarily visited with nullity.
[29]
In my view, the present matter clearly
falls within the ambit of a peremptory requirement whose breach can
be condoned under rule 27(3).
Despite
not complying with a peremptory provision of rule 17(3)
(c)
,
it is not visited with nullity. It can be condoned.
The
court of first instance was thus wrong to treat a failure to sign on
the same basis as a failure to issue. This also means that
the
conclusion arrived at in
Lombaard
is incorrect and that in
Chasen
correct.
Accordingly, in my
respectful view, the court of first instance ought to have dismissed
the special plea.
[30]
In conclusion, it is
necessary to say something about the conduct of the respondent in
refusing to serve the summons. It is not
for sheriffs to judge
whether a summons is a nullity or susceptible of condonation. That is
a matter for courts to decide within
the context of a proper
ventilation of the issues. As can be seen from this matter, some
complexity may attend on that determination.
The approach which was
taken by the respondent was regrettable and is to be strongly
discouraged.
[31]
The appeal must be
upheld. The parties were represented by two counsel at the appeal.
The matter involved two divisions of the High
Court coming to
different conclusions. The parties submitted that the costs of two
counsel were warranted, both on appeal and in
the court of first
instance, where two counsel were employed. I agree. The exception was
taken, set down and a direction given
as a result. The issues raised
were those dealt with in the special plea. It could therefore not
succeed. No costs order was made
for that aspect. The costs arising
from the exception must therefore follow suit.
[32]
In the result, the
following order issues:
1 The appeal is upheld with costs, including the costs
of two counsel where so employed.
2 The order of the high court is set aside and replaced
by the following order:
(a) The special plea is dismissed with costs.
(b) The defendant is directed to pay the costs arising
from the exception.
(c) The costs in paragraphs (a) and (b) hereof shall
include the costs of two counsel where so employed.
________________________
GORVEN AJA
ACTING
JUDGE OF APPEAL
Appearances
For
appellant: G Lubbe
Instructed
by: Nell Kotze & Van Dyk Attorneys, Pretoria
Symington
De Kok Attorneys, Bloemfontein
For
respondent: BP Geach SC, with him CM Dredge
Instructed
by: Van Zyl Le Roux Incorporated, Pretoria
Honey
Attorneys, Bloemfontein.
[1]
Noord-Kaap Lewendehawe Koöp Beperk v
Lombaard
1988 (4) SA 810 (NC).
[2]
Chasen v Ritter
1992 (4) SA 323
(SE) 325-327; [1992] 4 All SA 137 (SE).
[3]
The judgment is reported as
Motloung
and Another v The Sheriff Pretoria East and Others
[2018]
ZAGPPHC 664; 2019 (3) SA 228 (GP).
[4]
Republikeinse Publikasies (Edms) Bpk v
Afrikaanse Pers Publikasies (Edms) Bpk
1972 (1) SA 773
(A) at 780G. The dictum is obiter because that
matter concerned a notice of motion rather than a summons. Rumpff JA
contrasted
the position of a notice of motion which had not been
issued with that of a summons that had not been issued.
[5]
My translation from the original Afrikaans which
reads: ‘'n Dagvaarding wat nie deur die griffier uitgereik is
nie, sou
'n nulliteit wees en deur betekening van so 'n dagvaarding
sou geen geding ingestel word nie.’
[6]
Lombaard
at
816I-J.
[7]
Paragraph 19.
[8]
Minister of Prisons and Another v Jongilanga
1985 (3) SA 117
(A) at 123B-D.
[9]
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18. (References
omitted.) This approach was confirmed
by the
Constitutional Court in
Airports Company South Africa v
Big Five Duty Free (Pty) Limited and Others
[2018] ZACC 33
;
2019
(2) BCLR 165
(CC);
2019 (5) SA 1
(CC) para 29.
[10]
Cool Ideas 1186 CC v Hubbard and Another
[2014] ZACC 16
;
2014
(4) SA 474
(CC) para 28. (References omitted.)
[11]
Paragraph
(b)
is not relevant to this matter.
[12]
My emphasis.
[13]
Sutter v Scheepers
1932 AD 165
at 173 – 174.
[14]
Pio v Franklin NO and Another
1949 (3) SA 442
(C) at 451.
[15]
See fn 4 above.
[16]
See fn 8 above.
[17]
My emphasis. This was how the rule read at the
time. It has since been amended to 15 kilometres.
[18]
Jongilanga
at
123G-I.
[19]
Northern Assurance Co Ltd v Somdaka
1960 (1) SA 588
(A) at 595A-C.
[20]
Foster v Carlis and Houthakker
1924 TPD 247
at 252.
[21]
See
para 19 of the judgment of the court
of first instance, as quoted in para 7 above.
[22]
Dorfman v Deputy-Sheriff for the Witwatersrand
District
1908 TS 701
at 703.
[23]
Lombaard
at 816I-817B.
[24]
Lombaard
at
817C-D. My translation. The original reads: ‘Myns insiens b
y
gebrek aan ondertekening van die oorspronklike dagvaarding deur
die Griffier ontbreek die kardinale vereiste vir die inwerkstelling
van die dagvaarding’.
[25]
See fn 2 above.
[26]
At 326E-F.
[27]
At 328G-H.
[28]
At 329C-D.
[29]
Frost, Mulligan & Routledge v Rising NO
1905 TS 445.
[30]
This matter was mentioned in
Minister
of Justice & Another v Human
1970
(2) SA 765
(E). In that matter, the registrar did not sign copies of
the summons. An exception was taken to this effect. It was conceded
in argument that the only requirement was that the name of the
registrar appear on the copies. No signature was required. The
exception was dismissed.
[31]
Jongilanga
at
123G-H.
[32]
My emphases.
[33]
Marine & Trade Insurance Co Ltd v
Reddinger
1966 (2) SA 407
(A) at 413D.
[34]
My emphasis.
[35]
See para 9 hereof.
[36]
Ncoweni v Bezuidenhout
1927 CPD 130
at 130.
[37]
My translation. The original reads:
‘
. . .
is dit wenslik om te
herhaal wat in die algemeen van toepassing is, nl dat die Hof nie
vir die Reëls bestaan nie maar die
Reëls vir die Hof’.
[38]
Trans-African Insurance Co Ltd v Maluleka
1956 (2) SA 273 (A).
[39]
At 278F-H.
[40]
Constitution of the Republic of South Africa,
1996.
[41]
See fn 9 above.
[42]
Section 34 of the Constitution.