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[2024] ZAFSHC 205
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Sheriff Bloemfontein West (1889/2024) [2024] ZAFSHC 205 (1 July 2024)
FLYNOTES:
CIVIL
PROCEDURE – Service –
Companies
and close corporations
–
When
no employees present – Seeking declaratory orders to affix
copy of service to main door or place in post box at
such
registered address – Sheriff failed to convince court that
word "person" in sub-rule 9(5) should be
interpreted to
mean "close corporation" or "company" –
Sub-rule 9(3)(e) is worded wide enough to
sufficiently cater for
the problem – Sheriff has made out a proper case for
declaratory relief – Magistrate’s
Court Rule 9(3)(e).
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: YES
Circulate
to Magistrates: YES
Case
no:
1889/2024
In
the
ex parte
application of
:
SHERIFF
BLOEMFONTEIN WEST
Applicant
CORAM:
JP DAFFUE
J
HEARD
ON:
11 APRIL 2024
DELIVERED
ON:
01 JULY
2024
This
judgment was handed down electronically by circulation to the
applicant’s representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 16h30 on 1 July 2024.
Introduction
[1]
The sheriff of Bloemfontein West, Mr CH de Wet, is the
applicant in
this
ex parte
application. He serves as sheriff for both the
lower courts as well as the High Court in the Bloemfontein West area.
On 2 February
1983 he was appointed as sheriff in terms of s 34(1)(a)
of the now repealed Supreme Court Act 59 of 1959. His present
appointment
as sheriff is in terms of Chapter 1 of the Sheriffs Act
90 of 1986. I shall herein later refer to him as the sheriff.
[2]
The sheriff and his staff have been experiencing difficulties
since
November 2023 in that magistrates in the Bloemfontein magisterial
district (the Bloemfontein magistrates) are not prepared
to accept
certain returns of service of process effected on close corporations
and companies. The burning issue is the service
of process on these
entities when there are no employees present at either the registered
office, or principal place of business,
in situations when these
premises are kept closed. According to the sheriff the manner in
which he and his deputies have been effecting
service of process in
such instances have not become acceptable since approximately
November 2023, although literally thousands
of such services have
been accepted as valid over the years. The same problem is not
experienced in the Free State Division of
the High Court in
Bloemfontein. In order to obtain clarity, the sheriff seeks
declaratory orders.
The
relief sought
[3]
The sheriff seeks the following relief:
‘
1.
It is declared that it is lawful service (and/or sufficient service)
for purposes of
Rule 9(5) of the Magistrate’s Court Rules in
cases where a Close Corporation’s or Company’s registered
address
or place of business is kept closed, should the Applicant
when effecting service of process on such Close Corporation or
Company,
affix a copy of the process to the outer door or principal
door or security gate of the registered address or such place of
business
or place such copy in the post box at such registered
address or place of business.
2.
It is declared that it is lawful service (and/or sufficient service)
for purposes
of Rule 9(3)(e) of the Magistrate’s Court Rules in
cases where there is no employee at a Close Corporation or Company’s
registered office or at its principal place of business within the
Court’s jurisdiction, should the Applicant when effecting
service affix a copy of such process to the main door of such office
or to the main door of such registered office or place of
business,
or in any manner provided by law.’
The
problems faced by the sheriff
[4]
This matter was set down
for hearing in the unopposed motion court. Legal submissions were
made in the founding affidavit, but Adv
Benade, acting for the
sheriff, did not present me with any heads of argument and/or further
submissions and/or authorities other
than that set out in the
founding affidavit. He submitted that the sheriff’s case has
been made out clearly and conclusively
and concluded that declaratory
orders as requested should be granted. According to the sheriff the
Bloemfontein magistrates have
decided to follow the judgments in
Magricor
(Pty) Ltd v Border Seed Distributors CC
[1]
(
Magricor
)
in the Eastern Cape and
Barens
en ‘n ander v Lottering
[2]
(Barens)
,
a judgment by the full bench in the Western Cape. I reserved
judgment.
The
applicable rules of court
[5]
Sub-rule 9(3)(e) of the Magistrate’s Court Rules
reads as
follows:
‘
(3) All process
shall, subject to the provisions of this rule, be served upon the
person
affected thereby by delivering a copy thereof in one or other of the
following manners:
(e) in the
case of a
corporation or company
, by delivering a copy to a
responsible employee thereof at its
registered office or its
principal place of business
within the court's jurisdiction, 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,
or in any manner provided by law.’ (my emphasis)
Sub-rule 4(1)(a)(v) of
the Uniform Rules of Court (the High Court Rules) dealing with High
Court practice is a mirror image of sub-rule
9(3)(e).
[6]
Sub-rule 9(5) of the Magistrate’s Court Rules reads
as follows:
‘
(5) Where the
person
to be served
keeps
his or her residence or place of business closed
and thus prevents the sheriff from serving the process, it shall be
sufficient service to affix a copy thereof to the outer or
principal
door or security gate of such residence or place of business or to
place such copy in the post box at such residence
or place of
business.’ (my emphasis)
The High Court Rules do
not have a corresponding sub-rule.
[7]
It is necessary to deal
with a preliminary issue. The sheriff’s version, relying on an
example of a typical return of service,
is incorrect.
[3]
In terms of this return of service the sheriff served the process ‘by
affixing a copy thereof to the principal door of the
registered
address of [the company] which is kept locked and thus prevents
alternative service.’ This is in order, but reliance
is placed
on sub-rule 9(3)(e), alternatively sub-rule 9(6). The reference to
sub-rule 9(6) must be a typographical error in that
the reference
should be to sub-rule 9(5). Sub-rule 9(6) deals with service of an
interpleader summons which may be effected upon
the particular
attorney of the party to be served and is accordingly irrelevant
in
casu
.
Recent
amendments to the rules
[8]
It is apposite to mention that the Rules Board recently
amended the
High Court and the Magistrate’s Court Rules. The Minister of
Justice and Constitutional Services approved the
amendments. The
amendments to the Magistrate’s Court Rules were promulgated in
the Government Gazette of 8 March 2024 and
those of the High Court
on 12 April 2024. Although the Rules Board found it necessary
to amend some of the High Court and
the Magistrate’s Court
Rules pertaining to service of process, notices and other documents,
it did not amend either Magistrate’s
Court sub-rule 9(3)(e) or
the High Court sub-rule 4(1)(a)(v) pertaining to service of process
on a close corporation or company.
[9]
As a matter of interest, the sub-rules applicable to
service at the
domicilium
address of a person have been amended. Magistrate’s
Court sub-rule 9(3)(d) now reads as follows:
‘
if the person so
to be served has chosen a
domicilium
citandi
,
by delivering a copy thereof at the
domicilium
so chosen: Provided that,
where
possible
,
service at the
domicilium
so chosen shall be effected by delivering a copy of the process to a
responsible person apparently not less than 16 years of age:
Provided
further that the sheriff shall set out in the return of service the
details of the manner and circumstances under which
[such] service
was effected
;’
(I underlined the relevant part which does not appear in the amended
High Court sub-rule).
[10]
Before the amendments to the two sub-rules the sheriff was only
required to
deliver a copy of the process at the
domicilium
so
chosen. Now, where possible (in the case of the amended Magistrate’s
Court Rule), the process shall be delivered at the
domicilium
to a responsible person apparently not less than 16 of age. These
amendments clearly indicate that the Rules Board was not satisfied
with the mere delivery of process at the
domicilium
. More is
now required. It is also apparent that the Rules Board was quite
satisfied with the wording of sub-rules 9(3)(e) and 9(5).
I accept
that its members were fully aware of the judgments pertaining to
these sub-rules, in particular the
Magricor
judgment, which I
shall soon discuss.
Audi
alteram partem and access to courts
[11]
It remains a fundamental
principle of our law that, ‘as a general rule, no court may
make an order against anyone without
giving that affected
person/entity the opportunity to be heard.’
[4]
Therefore, the
audi
alteram partem
principle
still applies in this country. It affords the defendant/respondent
(herein after referred to as the affected person/entity)
an
opportunity of denying or admitting their indebtedness. Notice of
legal proceedings should be provided to the affected person/entity,
failing which the presiding officer will not be provided an
opportunity to hear them. Our law makers have acknowledged decades
ago that it is not always possible to give personal notice to
affected persons/entities and consequently, our rules of court
provide
for various forms of notice. These will be discussed later
herein.
[12]
In line with the
audi alteram partem
principle, s 34 of our
Constitution provides that ‘[e]veryone has the right to have
any dispute that can be resolved by the
application of law decided in
a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal
or forum.’
Evaluation
of the sheriff’s submissions and authorities
[13]
As mentioned, the sheriff
seeks declaratory orders pertaining to sub-rules 9(3)(e) and 9(5) of
the Magistrate’s Court Rules.
Insofar as I am called upon to
interpret the aforesaid two sub-rules, I shall follow the unitary
approach applicable to the interpretation
of statutes and contracts.
Several judgments have seen the light since
Natal
Joint Municipal Pension Fund v Endumeni Municipality (Endumeni),
[5]
citing it with approval.
In
AmaBhungane
Centre for Investigative Journalism NPC v President of the Republic
of South Africa (AmaBhungane),
[6]
the most recent judgment
of the Constitutional Court on the topic,
Endumeni
was again referred to
with approval. I quote from
AmaBhungane:
[7]
‘
[36]
As always, in interpreting any statutory provision, one must start
with the
words
,
affording them their
ordinary
meaning
,
bearing in mind that statutory provisions should always be
interpreted
purposively
,
be
properly
contextualised
and must be construed consistently with the Constitution. This
is a unitary exercise. The context may be determined by
considering other subsections, sections or the chapter in which the
key word, provision or expression to be interpreted is
located. Context
may also be determined from the statutory
instrument as a whole.
A
sensible interpretation should be preferred to one that is absurd or
leads to an unbusinesslike outcome
.’
(my emphasis; footnotes omitted)
[14]
I shall firstly deal with
service in terms of sub-rule 9(3)(e) and thereafter with the
sheriff’s submissions in respect of
sub-rule 9(5). In
adjudicating the application I accept that it is trite that the rules
exist for the courts and not the other
way around.
[8]
Having said this, I also accept that if a court is absolutely
prohibited by the rules, it is bound to follow the rules. However,
if
there is a construction which can assist the administration of
justice, a court shall be entitled to adopt that construction.
Shongwe JA stated the applicable principle as follows:
[9]
‘
Courts
should not be bound inflexibly by rules of procedure unless the
language clearly necessitates this — see S
immons,
NO v Gilbert Hamer & Co Ltd
1963
(1) SA 897
(N)
at 906. Courts have a discretion, which must
be exercised judicially on a consideration of the facts of each case;
in
essence it is a matter of fairness to both parties (see
Federated
Employers Fire & General Insurance Co Ltd and Another v
McKenzie
1969
(3) SA 360 (A)
at 363G – H).’
Discussion
relating to sub-rule 9(3)(e)
[15]
According to the sheriff
the Bloemfontein magistrates follow the
Magricor
judgment of the Eastern
Cape in respect of sub-rule 9(3)(e) and the
Barens
judgment of the full
bench in the Western Cape pertaining to sub-rule 9(5). In
Magricor
the
court held that the jurisdictional requirements for service by
affixing a copy of the process to the main door of a company’s
registered office or principal place of business ‘
are
(a) that a
responsible
employee
of
the company
must
be present
at
such office or place of business; and (b) that such
employee
must be unwilling
to
accept service.’
[10]
(my emphasis)
[16]
Insofar as I intend to
embark upon a process of reasoning culminating in a finding that
differs from judgments in other divisions,
I remind myself of the
age-old
stare
decisis
doctrine.
The object of the doctrine is to avoid uncertainty and confusion, to
protect vested rights and legitimate expectation,
as well as to
uphold the dignity of the court.
[11]
Having accepted this, it is trite that a judge of one division of the
High Court is not bound by the decision of a single judge
or the full
bench of a different division of the High Court. Such decisions have
‘persuasive force’ only.
[12]
[17]
Once I have provided a
historical background in respect of service of process on companies
in particular, I shall return to the
Magricor
judgment.
Nearly a century ago s 57(1) of the Companies Act 46 of 1926 (later
repealed) stipulated that every company ought to have
a registered
address at which all process might be served. In an application for a
winding-up order the service was not in accordance
with rule 21(a) of
the Rules of Court as at that time, but complied with the provisions
of the aforesaid section. In that case
the process was served upon a
member of the firm of accountants who occupied the registered office
of the respondent company. Although
there was no compliance with the
aforesaid rule, Ramsbottom J in
McGregor
v Wepener and Co (Pty) Ltd
[13]
granted a provisional
order for winding-up.
[18]
The wording of s 170(1)
of the previous Companies Act 61 of 1973 (the Act that repealed Act
46 of 1926) was in material respects
the same as s 57(1) referred to
in the previous paragraph. Again, litigants were allowed to ensure
that service of process be effected
at the registered office of an
affected company. In
Chris
Mulder Genote Ing v Louis Meintjies Konstruksie (Edms) Bpk
[14]
(
Chris
Mulder Genote Ing
)
Hartzenberg
J considered the wording
of sub-rule 4(1)(a)(v) of the High Court Rules and the fact that this
sub-rule did not stipulate for a
situation where the registered
office of the company is housed in offices occupied by, for example
auditors in which case, neither
the partners, nor the employees of
the auditor’s firm could be regarded as employees of the
affected company. The learned
judge emphasised that s 170(1) of the
1973 Companies Act did not require that service of process at the
registered office should
be on an employee of the company.
[15]
The learned judge also pointed out that litigation against the
company was still possible insofar as service of process could be
effected at its registered address in the absence of any other form
of service.
[19]
Registration of close
corporations became available on 1 January 1985, being the date of
commencement of the
Close Corporations Act 69 of 1984
. It is perhaps
appropriate to mention that
s 25
of this Act contains similar
provisions than the two Companies Acts referred to above.
[16]
[20]
The
Companies Act 71 of 2008
has repealed the 1973
Companies Act,
except
insofar as Schedule 5 of the 2008 Act stipulates that chapter
14 of the 1973 Act remains applicable. Sub-sections 23(3) and (4)
of
Act 71 of 2008 read as follows:
‘
(3)
Each
company or external company must-
(a)
continuously
maintain at least one office in the Republic; and
(b)
register
the address of its office, or its principal office if it has more
than one office-
(i) initially
in the case of-
(aa)
a
company, by providing the required information on its Notice of
Incorporation; or
(bb)
an
external company, by providing the required information when filing
its registration in terms of subsection
(1); and
(ii) subsequently,
by filing a notice of change of registered office, together with the
prescribed fee.
(4)
A change contemplated in subsection (3)
(b)
(ii)
takes effect as from the later of-
(a)
the
date, if any, stated in the notice; or
(b)
five
business days after the date on which the notice was filed.’
[21]
The question that needs
to be posed is how would it be possible to serve any process on a
close corporation or a company that has
closed its doors and
discontinued its business activities, or changed its registered
address without informing the Companies and
Intellectual Property
Commission (CIPC), formerly the Registrar of Companies. Clearly in
such a case, it should be in order to
serve at the registered address
according to the CIPC’s records. The CIPC keeps records of the
registered offices of all
close corporations and companies. It is a
peremptory provision that these entities must have a registered
address and in the event
of a change of address the CIPC shall be
notified immediately.
[17]
It
is trite that in the event of a close corporation or company failing
to notify the CIPC of a change of its registered address,
the office
as originally registered remains the registered address of the close
corporation or company for practical purposes.
[18]
[22]
In
Brangus
Ranching (Pty) Ltd v Plaaskem (Pty) Ltd (Brangus Ranching)
[19]
the full bench cited the
Chris
Mulder Genote Ing
judgment
with approval and stated as follows:
‘
[15]
Service
at the registered office of a company,
in
the absence of a responsible employee
thereof, by delivery of the document to be served to a person at such
address (not being an employee of the company) willing to
accept such
service,
has
been recognised as a good and proper service
which is preferable to merely attaching the process, for instance, to
the outer principal door of the premises.’ (my emphasis)
In
Brangus
Ranching
the
sheriff’s return of service did not indicate that Ms Abrahams
to whom the process was delivered, was a responsible employee
of the
defendant company, but rather a person apparently in charge of the
premises housing that company’s registered address
at the time
of delivery.
[20]
[23]
In
Lodhi
2 Properties Investments CC v Bondev Developments (Pty) Ltd
[21]
the applications were
served on the applicants’ registered address, that being the
address of their former auditors. They
changed auditors, but the
registered address had not been changed. When default judgment was
obtained against them, the applicants
applied for rescission on the
basis that the orders were erroneously sought or granted. They did
not succeed in the court
a
quo
and
their application to the Supreme Court of Appeal was dismissed.
[24]
In
Magricor
default judgment was
granted in the absence of a notice of intention to defend. The
summons was served by affixing a copy to the
main entrance of the
registered address and principal place of business of the defendant.
The sheriff recorded that he found the
‘defendant to be
absent’. The defendant applied for rescission of the judgment
in terms of High Court rule 42(1)(a)
on the basis that the judgment
was erroneously granted. The court held that there was indeed an
error in the procedure causing
the service to be improper.
Consequently, the application for rescission succeeded. Several
points were taken in order to rescind
the judgment,
inter
alia
that
the alleged service was effected during the luncheon hour when the
employees of the defendant were enjoying a normal lunch
break. These
were dismissed, but the court held as follows:
[22]
‘
In my view,
the
absence of employees
of a company from the registered office or principal place of
business
does
not permit the sheriff to effect service by affixing the process to
the company’s main door
at its registered office or principal place of business. For that
kind of service to be effected
the
employees
of the company
must
be unwilling to accept service
.’
(my emphasis)
The learned judge came to
this conclusion notwithstanding the fact that he was fully aware of
the judgment of the Supreme Court
of Appeal in
Arendsnes
. For
the reasons contained herein I am not prepared to follow the approach
in
Magricor
which is clearly wrong.
[25]
The reliance in
Magricor
on the judgment in
Chris
Mulder Genote Ing
is
misplaced. Earlier in the same paragraph quoted by the learned judge,
Hartzenberg
J stated in
Chris
Mulder Genote Ing
that
it is from a practical view point more logical when service has to be
effected at an auditor’s firm or similar firm,
to deliver the
document to a person who identifies him or herself and who is
prepared to accept service, rather than to affix the
process to the
door of the office. Fact of the matter is that
Chris
Mulder Genote Ing
is
authority that litigation against companies does not become
impossible merely because a company has
de
facto
ceased
to conduct business. Service at the registered office may be
effected.
[23]
[26]
It cannot be argued that because the Rules Board insisted on the
insertion
of the word ‘willing’ that no effective service
can take place at a close corporation’s or company’s
registered
office or principal place of business when its doors or
security gates are locked and no employees are present. In my view,
there
is no
lacuna
in the rules which needs to be rectified by
the Rules Board. In any event, one may assume that the members of the
Rules Board are
au fait
with all judgments relating to service
either in terms of the High Court, or the Magistrate’s Court
Rules.
[27]
The word ‘willing’ must be seen in proper context. The
learned
judge in
Magricor
should have considered the words ‘no
such employee’ in proper context with reference to the
authorities quoted herein.
If a close corporation or company has
discontinued its business operations and effectively closed the doors
of its registered office
and/or principal place of business within
the jurisdiction of a court, and accordingly leaving no personnel on
the premises, it
would in my view be sufficient to affix a copy of
the process to the main door and/or security gate of such office or
place of
business. I prefer a sensible interpretation to one that is
absurd and which will lead to an unbusinesslike outcome.
[28]
In
Arendsnes,
Shongwe JA writing for
the majority, reiterated that close corporations and companies
‘should not be permitted to register
an office address where it
has no purpose or business and by so doing, frustrate services of
summons and other court process upon
it.’
[24]
The learned Justice of Appeal quoted the same
dictum
of the court in
Brangus
Ranching (Pty) Ltd v Plaaskem (Pty) Ltd
[25]
which I referred to in
paragraph 22
supra
with approval. It is not
repeated again.
[29]
Leach JA, who agreed with the majority judgment in
Arendsnes,
felt obliged to make certain further comments which I whole-heartedly
and with the necessary respect support. I quote the following:
‘
[26]
Although the appellant had earlier conducted business at its
registered address, by the time service took place it had long
since
ceased all business activities, was dormant and had no employees or
representatives on the premises. Mr Pretorius, upon whom
service was
effected, was employed not by the appellant but by a different
enterprise. …
[27]
In considering [the appellant’s] argument, it must be
remembered that even where peremptory formalities are prescribed
by
statute, not every deviation from the literal prescription results in
nullity. The question always remains whether, in spite
of the defect,
the object of the statutory provision has been achieved ─
see
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199
(SCA) para 22. In this regard, it is important to
note that
s
25
of the
Close Corporations
Act 69 of 1984
obliges a close corporation to have a
reregistered address while
s
25(2)(
b)
provides
that ‘subject to applicable provisions in respect of such
service in any law’, process which is required to
be served
upon a corporation may be served by being delivered to the
corporation’s registered office or by being sent by
registered
post to the registered office or postal address of the corporation.
The clear intention of the legislature in providing
for this was to
ensure that a close corporation would have a
known
address at which process could be served
,
inter alia, to ensure that a third party who might wish to sue it
knows where to serve and
does
not have to end up chasing ghosts in a situation such as this where
the corporation has become dormant
.
[28]
Essentially service at the registered address of a corporation is
sufficient to amount to service on the corporation. As was
correctly
conceded by counsel for the appellant, as a regular practice the
courts accept as effective the service of a summons
upon an employee
of a firm of accountants or auditors whose office is used as a
corporation’s registered address, but sought
to distinguish
those cases from the present on the basis of a link between the
accountants or auditors and the corporation which
is missing in the
present case. In my view this misses the point.
The importance is
the fact that service at the registered address of the corporation,
even if not on one of its employees, is regarded
as substantial
compliance with the rules.
[29]
In the present case the summons was delivered to a responsible person
at the registered address of the appellant.
If
no-one had been present on the premises, there would have been strict
compliance with the rule had the summons been affixed to
the door
.
In my view the action of handing it to a responsible person at the
premises, after explaining the exigencies of the matter, amounted
to
substantial compliance with the rule. It resulted in the summons
being delivered to the registered address of the appellant,
that
being the purpose not only of the rule which authorises the fixing of
a summons to the door of the premises, but also of
s
25
of the
Close
Corporations Act.
[30
]
The court a quo expressed the view, with which I agree, that a
corporation
‘which fails to ensure that there is a responsible person
present at the premises appointed as its registered
address, does so
at its peril
and
should not be allowed to bemoan its lot should the process not come
to its attention’. Be that as it may, there was substantial
compliance with the rule relating to service upon a corporation, and
the high court correctly dismissed the special plea.’
(my
emphasis)
Although
Arendnes
dealt with service at the registered address of a
close corporation, I maintain that a sensible interpretation of
sub-rule 9(3)(e)
should lead to the same conclusion in respect of the
principal place of business within the court’s jurisdiction. If
no employee
can be found on the business premises of a close
corporation or company, the process may be affixed as provided for in
the sub-rule.
Discussion
in respect of sub-rule 9(5)
[30]
Sub-rule 9(5) differs from the situation in sub-rule 9(3)(d)
pertaining to
service at the
domicilium
address. Sub-rule 9(5)
provides for a process to be served at the residence or place of
business of the person which is kept closed.
[31]
The sheriff is of the view that insofar as the words ‘person’
and
‘corporation and company’ are used intermittently in
rule 9
the reference to ‘person’ in sub-rule 9(5) should
include ‘corporation or company’. I do not agree.
Sub-rule
9(5) stipulates that if a person to be served keeps their
residence or place of business closed and thus preventing the sheriff
from serving the process, same may be affixed as provided for in that
sub-rule. No doubt the reference to a person can only be
to a natural
person, bearing in mind the reference to residence and the words ‘his
or her’. Having said this, it is
in my view not necessary to
rely on this sub-rule when service on a close corporation or company
is to be effected.
[32]
According to the sheriff,
the Bloemfontein magistrates also rely on the
Barens
[26]
judgment, a judgment by
the full bench in the Western Cape, dealing with service in terms of
sub-rule 9(5). In that judgment the
court held, relying on the
wording of sub-rule 9(5), that it should be shown in the sheriff’s
report that the person to be
served keeps the door or gate of their
residence closed with the intention of preventing the sheriff from
effecting service. Therefore,
the court held that a sheriff
confronted by a locked door or gate must, before proceeding to affix
the process to it, first determine,
if necessary by inquiry and
investigation, whether there are grounds for assuming that the door
or gate is kept closed in order
to prevent service.
[27]
The court reiterated that processes have to be served in accordance
with the rules and the habit of resorting to ‘easy’
service by affixing processes to the intended recipient’s door
or gate without any enquiry or investigation is unacceptable.
[28]
[33]
This judgment is
distinguishable from the issue to be considered
in
casu,
insofar
as it dealt with service on a person, being a natural person and not
a legal person. In my view the judgment is clearly
wrong and should
not be followed. I do not agree with it for the following reasons. In
Barens
it was common cause that
the defendant worked and resided in Calvinia at the time, but that
his family still stayed at the immovable
property in Wellington
registered in his name. He visited his family over weekends. The
summons was affixed to the front door of
the defendant’s
Wellington home. The defendant became aware of the summons, defended
the matter and filed a special plea,
relying on prescription, the
reason being that no valid service took place. In that case the
summons was served nine days before
the claim prescribed. The
magistrate upheld the special plea, and save for interfering with the
costs order, the High Court dismissed
the appeal, therefore agreeing
with the magistrate. The full court’s reliance on
Santam
Insurance Co Ltd v Vilakasi
[29]
was misplaced. In that case the Appellate Division held that if a
summons was served before the expiration of the applicable 60
day
period (to allow the insurance company time to consider the claim)
the claim was unenforceable. Consequently, the plaintiff’s
exception to the special plea of prescription was dismissed.
Barens
also referred to
s 15(1)
of the
Prescription Act 68 of 1969
and the judgment of the Appellate
Division in
Du
Bruyn v Joubert.
[30]
In this judgment the
court merely referred to the two requirements to interrupt
prescription, to wit (a) the existence of an enforceable
right
against the debtor in respect of which prescription is already
running and (b) service of process on the debtor instituting
legal
proceedings for enforcement of the right. In my view this judgment is
no authority for the conclusion arrived at in
Barens
.
[34]
It is not strange that persons keep their residences and businesses
closed,
and/or locked whilst present, bearing in mind the crime rate
in this country. Also, unlike decades ago, when it could be expected
that someone, for example the housewife, would be at home during the
day, nowadays people are often away from their residences
during the
day and at times when service may be effected, causing the sheriff to
find nobody at home. Furthermore, it is well-known
that people often
work from home, but are travelling to and/or visiting clients at
different places such as coffee shops and/or
the clients’
places of employment or residences, causing them to be temporarily
absent. Sheriffs are not private investigators
who need to ascertain
why the doors of a residence or business are kept locked, disallowing
them entry to these premises. The whole
purpose of the rules
pertaining to service of process is to ensure as best as possible
that the affected person/entity receives
knowledge of the process.
This occurred in
Barens
.
[35]
Judges and magistrates
are often confronted with applications for rescission of judgment. In
many of these cases the processes commencing
proceedings have been
served at the
domicilium
address in terms of the
rules of court (before the recent amendment), or by affixing the
documents to the outer or principal door
or security gate of the
person’s residence or place of business, or the close
corporation’s or company’s principal
place of business or
registered office. It is accepted that these applications often
succeed. This is what happened in
Interactive
Trading 115 CC and Another v South African Securitisation Programme
and Others (Interactive Trading).
[31]
In that case the applicants applied for rescission of judgment. The
first applicant was operating the business of a fuelling station
on a
24-hour basis. The sheriff’s return of service indicated that a
copy of the process was affixed to the principal gate
of the premises
which remained locked and nobody could be found. Based on the
evidence the judge held that the return of service
could not be
relied upon as it contained incorrect information.
[36]
A similar situation
occurred in
Ford
Motor Company Manufacturing of Southern Africa v Thobakgale and
others.
[32]
The court held that ‘it is not imaginable that a huge company
like Ford with such a lot of assets in the form of new cars
could be
left without employees in a form of security personnel and other
employees who could have refused to accept service or
at least direct
the sheriff to the office where he could have served the documents on
an individual representing the company.’
[33]
The court continued to state that it was ‘not conceivable that
on 22 of April 2021 at 10h00 in the morning, which was during
the
week on a Thursday, there was no one on the entire premises…’
[37]
I accept, based on the examples in the aforesaid two cases, that a
sheriff’s
return of service may well be attacked for failure to
comply with their duties. It is also accepted that service by
affixing
to an outer door or gate may be abused by some sheriffs or
their deputies. Each application for rescission of judgment must be
adjudicated on a case-by-case basis. It will be wrong to interpret
the rules on the basis that sheriffs are prepared to cut corners
and
that affected persons/entities shall be protected as far as possible
by insisting on an insensible and absurd interpretation
of the rules
that may lead to unbusinesslike results. A sensible interpretation
should rather be followed.
[38]
If a process is served on
an affected person/entity, but it did not come to their attention,
causing default judgment to be granted,
such affected person/entity
will always have the right to apply for rescission of judgment in an
appropriate case. The High Court
and Magistrate’s Court Rules
provide ample relief in order to ensure that the constitutional right
to a fair trial is not
infringed.
Magricor
dealt with rule 42 of the
High Court Rules. Section 36(1)(b) of the Magistrate’s Court
Act 32 of 1944, read with Magistrate’s
Court sub-rule 49(8)
contains a similar provision. A party that cannot rely on a judgment
erroneously granted may always apply
for rescission of the judgment
if they can show good cause.
[34]
Conclusion
[39]
It must be emphasised
that if a court is not satisfied with the effectiveness of any
service of process, it may order that such
further steps be taken as
it deems fit.
[35]
The sheriff
has not convinced me that the word ‘person’ in sub-rule
9(5) should be interpreted to mean ‘close
corporation’ or
‘company’. I shall therefore refrain from granting a
declaratory order as applied for in prayer
I of the notice of motion.
However, I am satisfied that sub-rule 9(3)(e) is worded wide enough
to sufficiently cater for the problem.
The sheriff has made out a
proper case for the declaratory relief I intend to grant.
Order
[40]
The following order is granted:
1.
It is declared that, in the case of a corporation or company, if no
responsible employee
is found at its registered office or principal
place of business within the court’s jurisdiction which is kept
closed, it
would be lawful and sufficient service for the purposes of
sub-rule 9(3)(e) of the Magistrate’s Court Rules if the sheriff
or their deputy affixes a copy of the process to the main door or
security gate of such office or place of business, or in any
manner
provided by law.
2.
There shall be no order as to costs.
JP
DAFFUE J
On
behalf of the Applicant:
Adv
HJ Benade
Instructed
by:
Symington
De Kok Attorneys
BLOEMFONTEIN
[1]
(1072/2020)
[2021] ZAECGHC 2 (12 January 2021).
[2]
2000
(3) SA 305
CPD.
[3]
Founding affidavit para 6.3, read with annexure B thereto.
[4]
Snyders
and Others v De Jager
CCT
186/15
[2016] ZACC; 2017
(5) BCLR 604 (CC) (21 December 2016) para
9.
[5]
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[6]
(CCT 385/21)
[2022] ZACC 31
;
2023 (2) SA 1
(CC);
2023 (5) BCLR 499
(CC) (20 September 2022).
[7]
Ibid
para 36.; See also
Cool
Ideas 1186 CC v Hubbard
[2014]
ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) para 28;
Chisuse
v Director-General, Department of Home Affairs
[2020] ZACC 20
;
2020 (6)
SA 14
(CC);
2020 (10) BCLR 1173
(CC) para 52; and
University
of Johannesburg v Auckland Park Theological Seminary and Another
[2021] ZACC 13
;
2021 (6)
SA 1
(CC);
2021 (8) BCLR 807
(CC) paras 65 & 66.
[8]
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972 (1) SA 773
(A) at
783 A – B, cited with approval in
Arendsnes
Sweefspoor
CC v Botha
(Arendsnes)
2013
(5) SA 399
(SCA)
.
[9]
Arendsnes
Sweefspoor
CC v Botha
(Arendsnes)
2013
(5) SA 399
(SCA)
para 18.
[10]
Magricor
loc cit
paras
13, 17 18 & 19.
[11]
LAWSA vol 5 part 2, 2
nd
ed para 163;
Ex
parte Minister of Safety and Security and Others: In re S v Walters
and Another
[2002] ZACC 6
;
2002
(4) SA 613
(CC) paras 57, 59 & 61;
Afrox
Healthcare Bpk v Strydom
2002
(6) SA 21
(SCA) paras 26 - 30.
[12]
Wille’s
Principles of South African Law
,
9
th
ed p 81 – 90 for a
general discussion.
[13]
1948
(2) SA 1018
at 1021.
[14]
1988
(2) SA 433
(T) B-D.
[15]
Ibid
at
437
G.
[16]
Section 25 reads as follows: ‘
Postal
address and registered office
(1)
Every corporation shall have in the Republic a postal address and an
office to which, subject to subsection (2), all communications
and
notices to the corporation may be addressed. ‘
(2)
Any-
(a)
notice,
order, communication or other document which is in terms of this Act
required or permitted to be served upon any corporation
or member
thereof, shall be deemed to have been served if it has been
delivered at the registered office, or has been sent by
registered
post to the registered office or postal address, of the corporation;
and
(b)
process which is
required to be served upon any corporation or member thereof shall,
subject to applicable provisions in respect
of such service in any
law, be served by so delivering or sending it.’
[17]
Sub-sections 23(3) and (4) of the
Companies Act 71 of 2008
.
[18]
See
the
dictum
of De
Waal JP in
Geldenhuis
Deep Ltd v Superior Trading Co (Pty) Limited
1934
WLD 117
at 119, referred to often and more recently by Shongwe JA in
Arendsnes
Sweefspoor
CC v Botha
(Arendsnes)
2013
(5) SA 399
(SCA)
para
15.
[19]
2011
(3) SA 477
(KZP) para 15.
[20]
Brangus
Ranching loc cit
para
11.
[21]
(2007) SA 87
(SCA) paras 24 & 25.
[22]
Magricor
loc cit
para
19.
[23]
Chris
Mulder Genote Ing
loc
cit,
436
H.
[24]
Arendsnes
loc
cit
para
16.
[25]
2011
(3) SA 477
(KZP) para 15.
[26]
Loc
cit
;
see footnote 2 above.
[27]
Barens
at
310 F – 311 D.
[28]
Ibid
at
312 A – C.
[29]
1967 (1) SA 246 (A) 253 H.
[30]
1982 (4) SA 691
(W) 696G-697A.
[31]
2019 (5) SA 174 (LP).
[32]
2023
JDR 2208 (GP).
[33]
Ibid
para
11.
[34]
Grant v
Plumbers (Pty) Ltd
1949
(2) SA 470
(O) at 476 and more recently,
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) para
11; see also Magistrate’s Court
Rule 49
and High Court
Rule
31(2)(b).
[35]
Magistrate’s Court sub-rule 9(20).