IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
REPORTABLE: NO (l )
(2)
(3)
OF INTEREST TO OTHER JUDGES: NO
REVISED: ~
CASE NO: 2022-021553
SIGNATURE
24 August 2026
DATE
In the matter between:
TREVOR THABANG MOKOENA
and
THE STANDARD BANK OF SOUTH AFRICA
JUDGMENT ON LEA VE TO APPEAL
THOBANEAJ,
APPLICANT
RESPONDE NT
1
2
Introduction
[1] The applicant seeks leave to appeal a judgment of this Court handed down
on 20 November 2024. The appeal is directed at both the order dismissing the
application for rescission of judgment as well as an order of the award of costs
against the applicant, which were awarded on a scale as between attorney and
client.
[2] In the notice of application for leave to appeal, the applicant gives notice
that;
2.1. should leave to appeal be granted, an appeal would have a reasonable
prospect of success; and
2.2. there is a compelling reason why the appeal should be heard and there
is also a reasonable possibility that a Full Bench of another Court may come
to a different conclusion.
[3] In the notice of application for leave to appeal, the applicant asserts that the
appeal would have reasonable prospects of success were leave to be granted and
also that there is a compelling reason why the appeal should be heard in that there
is a reasonable possibility that a Full Bench of another Court may come to a
different conclusion regarding the dismissal of the application for rescission of
judgment, thus foreshadowing the provisions of section 17(1)(a)(i) and (ii) of the
Superior Courts Act 10 of 20131.
1 Leave to appeal
17. (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that—
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal including conflicting judgments on the
matter under consideration;
3
[4] The applicant further lists points on which he believes the Court correctly
found or ruled, followed by those that he believes the Court erred. It is not
necessary to list those that the Court is said to have made correct findings in this
judgment, as they do not advance the case one way or the other.
[5] The applicant contends that the Court erred or misdirected itself when it
made subsequent findings in its judgment, despite finding elsewhere in the
judgment that;
“It must be permissible to serve process by affixing to the principal door or main door,
if personal service or service on a person old enough on receive process (over the age
of 16 years) cannot be achieved.”
[6] The nub of the applicant’s case, as framed by him, is that he is disputing that
the sheriff served the summons at his chosen domicilium address by way of
affixing and by implication, the accuracy of the return of service. He asserts that
a tenant of his, with whom he was often in contact, was present at the domicilium
address around the time of service, by affixing, of the summons to the main or
principal door.
[7] The applicant identified four points which inform the basis of his contention
that the Court erred. In challenging the accuracy of the sheriff’s return of service,
the applicant made an assertion, which assertion was at the core of the application
for rescission of judgment, that a tenant of his, with whom he was in constant
contact, was present at the domicilium address around the time of service of the
summons. The four points, which were lifted from the judgment dismissing the
application for rescission of judgment are that;
7.1. the sheriff is a creature of instructions. He serves process as instructed
or directed by the process itself and returns his findings to Court. It is not
4
mentioned by the applicant why it is contended that the statement made by
the Court is objectionable or became one of the points informing the
application for leave to appeal. That the sheriff is a creature of instructions
and acts as directed by the process itself and to thereafter, as required, report
to the Court is trite. There is no issue in this regard;
7.2. Neither the sheriff nor the respondent had an obligation to reach out to
the applicant and do more than what was required namely, to serve
summons on him. I add, as directed by the process itself. The statement by
the Court, is factual and is legally correct. The sheriff acts on the process
itself and is under no obligation to go beyond the process and act extraneous
the process itself unless so instructed. I can see no reason that invalidates
what is contained in the statement and is thereafter regurgitated as espousing
current law;
7.3. The applicant has not put up an affidavit from the tenant nor has he
contacted the sheriff to dispute what the return of service suggests. As will
be shown later in this judgment, the return of service, being prima facie
evidence of what the sheriff has done, cannot be displaced nor can it be
impeached by conjecture, speculation, presumption, belief, assumption,
inference, postulation or even suspicion. It cannot even be displaced or
impeached by hearsay evidence.
7.4. The hearsay statement that the applicant’s tenant was present, is not
evidence of the fact that the tenant was indeed present nor is it evidence
showing that the process was not served in a manner set out by the sheriff in
the return of service. It is current law that hearsay evidence cannot override,
displace, impeach or overturn prima facie evidence of the sheriff. That being
the case, whether the applicant was informed by the tenant that he, (the
tenant), was at the domicilium address, or whether owing to constant contact
with the tenant, the applicant speculates, presumes, believes, assumes,
5
infers, postulates or even suspects that the tenant was at the domicilium
address around at the time of service of the process, falls to be rejected as
not being weighty enough, by any Court hearing the appeal, to overturn,
displace or impeach the sheriff’s prima facie, time, place and manner of
service of the process (the summons).
[8] The applicant accentuates two of the points and builds his case for leave to
appeal around them. Firstly, the finding by the Court that there was no obligation
on the sheriff to reach out to the person to be served and do much more than what
he was instructed to do in the process itself, which was to serve the process as
instructed and permitted by law. That the sheriff is a creature of instructions, a
comment which the Court made in its judgment and which is made in many Court
decisions, is said to be an issue, finding or opinion on which the Court erred. It
is not an issue at all and cannot get elevated to it being an error. Besides, no
reason has been advanced why it is so contended by the applicant. Secondly, the
finding that the Court made in the judgment, to the effect that the applicant was
relying on hearsay, was said to have been erroneously made. In support of the
application for leave to appeal, the applicant relies on certain cases which he
believes are supporting his case. I do not agree with such a posture and will deal
with the cases relied on, in detail below.
[9] The application for leave to appeal is opposed by the respondent who is of
the view that on the facts of this case and regard being had to case law, the
findings by the Court cannot be assailed.
[10] Sight must not be lost of the fact that the judgment and order against which
leave to appeal is sought, dismissed the applicant’s application for rescission of
judgment. The singular reason for the rescission was the fact that the applicant
6
contended that the summons was not properly served in that whereas the sheriff’s
return of service indicated that the summons was served by affixing to the
principal or main door of the applicant’s chosen domicilium address, a tenant of
the applicant who occupied the premises, informed him or the applicant himself
knew, owing to being in constant contact with said tenant, that the tenant was
present at the domicilium address, around the time when the summons was served
by way of affixing to the principal or main door.
[11] In the judgment dismissing the application for rescission of judgment, the
Court opined as follows, and it was dealt with above;
“[13] The applicant is taking issue with the service, by the sheriff, of the summons at
his chosen domicilium address by way of affixing to the principal door. It must be
mentioned that it is permissible to serve process by affixing to the principal or main
door, if personal service or service on a person old enough to receive process, (over the
age of 16 years) cannot be achieved. Without more, the applicant is disputing that the
sheriff served the summons at his chosen domicilium address. He asserts that a tenant
of his, with whom he is often in contact, was present at the domicilium address around
the time of service by affixing. He challenges the sheriff to say much more than what
is contained in his return of service. The sheriff is a creature of instructions. He serves
process as instructed or directed by the process itself and returns his findings to Court.
Besides, the applicant has not put up an affidavit from the tenant nor has he contacted
the sheriff to dispute what the return of service suggests. He contends that more should
have been done by the respondent, to bring the summons to his attention. Neither the
sheriff nor the respondent has an obligation to reach out to the applicant and do much
more than what is required, namely, to serve the summons on him. The hearsay
more than what is required, namely, to serve the summons on him. The hearsay
statement that his tenant was present, is not evidence of the fact that the tenant was
present nor is it evidence showing that the process was not served.”
7
[12] The aforementioned opinion by the Court has attracted unfair and
unwarranted criticism from the applicant. To the extent that the applicant relies
on the aforesaid opinion to anchor his application for leave to appeal, it is my
view that such reliance is misplaced as will be demonstrated more fully below.
The law
[13] It is now settled that the threshold in an application for leave to appeal since
the advent of the Superior Courts Act has been raised. That much was said in The
Mont C hevaux Trust (IT2012/28) v Tina Goosen & 18 Others 2 , where
Bertelsmann J held as follows:
“It is clear that the threshold for granting leave to appeal against a judgment of a High
Court has been raised in the new Act. The former test whether leave to appeal should
be granted was a reasonable prospect that another court might come to a different
conclusion.....The use of the word “would” in the new statute indicates a measure of
certainty that another court will differ from the court whose judgment is sought to be
appealed against”.
[14] The Full C ourt of this Division in Fairtrade Tobacco Association v
President of the Republic of South Africa3 likewise held that-
“As such, in considering the application for leave to appeal, it is crucial for this Court
to remain cognisant of the higher threshold that needs to be met before leave to appeal
may be granted. There must exist more than just a mere possibility that another court,
the SCA in this instance, will, not might, find differently on facts and law.”
2 The Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18 Others LCC14R/2014, 2014 JDR 2325 (LCC) at para 6.
See also Acting National Director of Public Prosecutions and Others v Democratic Alliance [2016] ZAGPPHC 489 (24
June 2016).
3 Fairtrade Tobacco Association v President of the Republic of South (21688/2020) [2020] ZAGPPHC 311 (24 July
2020).
8
[15] The SCA in Smith v S 4, per Plasket AJA, as he then was, had occasion to
consider what constitutes reasonable prospects of success as envisaged in section
17(1)(a)(i) and held:
“What the test of reasonable prospects of success postulates is a dispassionate decision,
based on the facts and the law that a court of appeal could reasonably arrive at a
conclusion different to that of the trial court. In order to succeed, therefore, the
appellant must convince this court on proper grounds that he has prospects of success
on appeal and that those prospects are not remote but have a realistic chance of
succeeding. More is required to be established than that there i s a mere possibility of
success, that the case is arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal.”
[16] It is with the aforesaid principles and case law in mind that this C ourt
approaches the application for leave to appeal on the grounds that are considered
in turn below.
Evaluation
[17] Firstly, I deal with the applicant’s reliance on ABSA v Mare5, (Mare) which
was also dealt with in the judgment dismissing the application for rescission of
judgment. The applicant contends that on the facts of Mare, where the Full Court
was called upon to make a determination in relation to the same legal question,
as the applicant frames it, whether the service was good and proper enough, the
prospects of success of the appeal are not remote. This however cannot be the
case. The facts are not at all similar and the manner of service is equally
dissimilar.
4 Smith v S 2012 (1) SACR 567 (SCA) at para 7. See also MEC for Health, Eastern Cape v Mkhitha and
Another [2016] ZASCA 176 at para 17.
5 ABSA v Mare (A56/2019) [20201 ZAGPPHC 372; 2021 (2) SA 151 (GP) (20 August 2020)
9
[18] It is true that one of the legal questions in this matter is the same as one of
the legal questions in Mare namely, what amounts to good and proper service.
The facts of both cases are however distinct. I agree with the findings in Mare,
and am of the view that it was correctly decided on the facts that were before the
Full Court, as I demonstrate below.
[19] In the return of service in the Mare matter, the sheriff indicated that the
summons was served by affixing ‘on the grass’. The service of summons in the
manner indicated in the return of service of the summons, was preceded by
service of the statutory notice, the section 1296. The reason why service of the
section 129 notice was found not to be in accordance with the law, was that it
was served by ‘affixing to the gate’ in circumstances where the defendant (Ms.
Mare) resided on a small holding which did not have a perimeter fence and did
not have a gate. The Court found, correctly, that such service fell short of what
was required in law, namely, that service must be executed or carried out in such
a way or manner that the process served will come to the attention of the intended
recipient.
[20] As stated above, Ms. Mare resided at a small holding with a dwelling on it.
I agree that by affixing the summons to the grass at the chosen domicilium citandi
et executandi, the process would have been susceptible to the vagaries of the
weather and would not ordinarily as a result have come to the attention of the
intended recipient, thus the service was not in accordance with the provisions of
Rule 4(1)(a)(iv).
6 National Credit Act 34 of 2005.
10
[21] The Full Court in Mare, from which I quote generously, restated the law
pertaining to service of process by the sheriff and does not support the proposition
which the applicant contends it does. The following was said from paragraph 25;
“… In Amcoal Colleries Ltd v Truter 1990 (1) SA 1 (A) at 5H-6D, Nicholas AJA said
this:
‘It is a matter of frequent occurrence that a domicilium citandi et executandi is chosen
in a contract by one or more of the parties to it. Translated, this expression means a
home for the purpose of serving summons and levying execution. (If a man
chooses domicilium citandi the domicilium he chooses is taken to be his place of
abode: see Pretoria Hypotheek Maatschappij v Groenewald 1915 TPD 170.) It is a
well-established practice (which is recognised by Rule 4(1)(a)(iv) of the Uniform Rules
of Court) that, if a defendant has chosen a domicilium citandi, service of process at
such place will be good, even though it be a vacant piece of ground, or the defendant
is known to be resident abroad, or has abandoned the property, or cannot be found.
(Herbstein and Van Winsen The Civil Practice of the Superior Courts of South
Africa 3rd ed at 210. See Muller v Mulbarton Gardens (Pty) Ltd 1972 (1) SA
328 (W) at 331H - 333A, Loryan (Pty) Ltd v Solarsh Tea & Coffee (Pty) Ltd 1984 (3)
SA 834 (W) at 847D - F.) It is generally accepted in our practice that the choice without
more of a domicilium citandi is applicable only to the service of process in legal
proceedings. (Ficksburg Transport (Edms) Bpk v Rautenbach en 'n Ander (supra 333C
- D). Parties to a contract may, however, choose an address for the service of notices
under the contract. The consequences of such a choice must in principle be the same
as the choice of a domicilium citandi et executandi (cf the Ficksburg
Transport case ubi cit ), namely that service at the address chosen is good service,
whether or not the addressee is present at the time.’
whether or not the addressee is present at the time.’
[26] The manner in which a process may be delivered or left at a domicilium in terms
of r 4(1) (a)(iv) is not prescribed and depends on the prevailing circumstances. The
relevant provisions of the loan agreement in question (clause 37) also do not prescribe
the manner of delivery or of acceptance at Ms Mare’s chosen domicilium address. The
11
duty upon a sheriff is to serve a notice or process of court at a domicilium citandi by
delivering or leaving the notice or process in a manner by which in the ordinary course
the notice or process would come to the attention and be received by the intended
recipient, and to report to the court how the process was served and why it was served
in that manner . The delivery requirement at a domicilium citandi , as was said by
Margo J in Loryan (Pty) Ltd v Solarsh Tea and Coffee (Pty) Ltd 1983 (4) SA 834 (W)
at 849A-B,
‘. . . presupposes delivery in any manner by which in the ordinary course the notice
would come to the attention of and be received by the lessor. The obvious method
would be by handing the notice to a responsible employee, or by pushing it under the
front door, or by placing it in the mailbox.’
[27] Leaving the summons on the grass where it can be blown away, taken away or be
invisible, was not an appropriate place for delivery in the particular
circumstances. Where delivery of a notice or process is to be effected at a residence
chosen as a domicilium citandi, it would equally not have been enough merely to drop
the process over a perimeter fence or to put it into a hedge. (Cf. Loryan at 847H-I.) Ms
Mare’s chosen domicilium citandi is not a vacant piece of land, but a smallholding with
a dwelling on it, which is her private residence. The obvious method of delivery by
which in the ordinary course the summons would have come to her attention and
received by her, and which the sheriff in casu was required to do in order to comply
with the method of service prescribed in terms of r 4(1)(a)(iv), was to hand a copy of
the summons to Ms Mare personally (I accept her evidence that she was present at the
time of service of the summons), to a responsible employee, if there was someone
present, by slipping it under or affixing it to the front door of her home, or even by
placing it in a post box, if there was one.” (The underlining is my emphasis).
placing it in a post box, if there was one.” (The underlining is my emphasis).
[22] It is clear from the Full Court’s reasoning in Mare, on which the applicant
relies, that service by way of affixing the summons to the principal or main door
as was the case in casu, is not only an acceptable way of service of Court
12
processes at a chosen domicilium citandi et executandi, but is also in accordance
with the provisions of Rule 4(1)(a)(iv). What sets apart Mare to the facts of this
case is that in Mare the summons was served by affixing to “grass” whereas in
casu the summons was served by affixing to “the main or principal door”. The
court opined in Mare that “Leaving the summons on the grass where it can be
blown away, taken away or be invisible, was not an appropriate place for
delivery in the particular circumstances”7. Service of summons by affixing to the
front, main or principal door, among other methods of service, was described in
Mare as; “The obvious method of delivery by which in the ordinary course the
summons would have come to her attention and received by her, and which the
sheriff in casu was required to do in order to comply with the method of service
prescribed in terms of r 4(1)(a)(iv)”.
[23] I now frontally turn my attention to the applicant’s challenge to the sheriff’s
return of service. The applicant makes a positive assertion that the sheriff did not
serve the summons at his chosen domicilium which was occupied by a tenant of
his at the time. The reason why the applicant contends that the sheriff did not
serve the summons at the chosen domicilium, is because the tenant was at the
address, around the time of service of the summons by affixing to the main door.
To buttress his contention, the applicant stated that he was often in contact with
said tenant. Nothing further, other than the submission that the applicant was in
constant contact with the tenant as well as the submission that the tenant was
present at the domicilium address around the time of service, is said about service
of the summons. That the applicant was in constant contact with the tenant and
that the tenant was at the domicilium address at the time, as was said in the
judgment, without more is not helpful.
7 ABSA v Mare paragraph 27.
13
[24] The applicant criticizes the judgment on rescission particularly the Court’s
finding relating to the absence of an affidavit from the tenant. He further
juxtaposes absence of the affidavit in this matter with the matter of Nonjabulo
Lerato Buthelezi v Liquid Vehicle, a product of Wesbank, a Division of Firstrand
Bank Limited8, (Buthelezi), where the Honourable Dippenaar J did not require an
affidavit to prove that the applicant in that matter was present at the domicilium
address when the summons was served. Having read Buthelezi I can discern and
it is clear from the reading that the reason why Dippenaar J did not require an
affidavit in Buthelezi is because of the facts that were placed before Court. The
reason is manifest and is facts specific, just as was the case in Mare which I dealt
with above and deal with again below.
[25] In Mare, the sheriff rendered a return which stated among other things that
the summons was served by affixing to the “grass”. Ms. Mare’s property or
smallholding was over 7 hectares in size. The court found, correctly in my view,
that service of the summons was not in accordance with the law because it was
served in such a manner that the summons would not have come to the attention
of Ms. Mare . The return of service also stipulated that on two other separate
occasions there had been unsuccessful attempts to serve the summons and that
during those times , there was a promise ( although not stipul ated by whom,
however the Court presumed it was by the applicant), to collect the document or
summons. Ms. Mare denied making any promises to the sheriff and her denial as
to the attempted service and the promise to collect documents , which was not
refuted or challenged by the respondent , was in my view correctly accepted by
the Court. The Court found that such service fell short of what was required in
8 Nonjabulo Lerato Buthelezi v Liquid Vehicle, a product of Wesbank, a Division of Firstrand Bank Limited (144/2022)
12 August 2023.
14
law, namely, that service must be in a such a manner that the process served will
come to the attention of the intended recipient.
[26] In Buthelezi the sheriff’s return of service indicated that the summons was
served by way of affixing to the principal door. The applicant challenged the
return of service on the basis that she was present on the date at the time of service
of the summons by affixing to the main door. In addition, her aunt and her
brother, both of whom were unemployed at the time, were present at the time the
summons was allegedly served by affixing. Her, version was undisputed, the
Court found and accepted it.
[27] In both Mare and Buthelezi the applicants deposed to affidavits indicating
that they each were personally at their chosen domicilium address at the time of
service of the summons. What was mentioned in their affidavits, that they were
at the chosen domicilium address, coupled with information which was patently
false in their respective returns of service, together with the fact that the
respondents in those matters, did not challenge the assertion by the applicants
that they were at the scene, persuaded the Courts to accept what was alleged by
the applicants.
[28] In this matter the applicant did not present evidence that the tenant was at
the chosen domicilium address when the process was served, other than the
unsupported and uncorroborated say so. The Full Court in Mare, where the
sheriff was cited as a party, dealt substantively with the fact that whereas the
applicant made factual averments about her presence at the domicilium address
in her founding affidavit, as well as her version that there was never an
undertaking to collect the summons from the sheriff, on one hand, the respondent
(the bank), on the other hand, relied on generalized and bald denials of those
15
factual averments by the bank’s senior legal counsel, who was not at the scene
and therefore lacked first-hand knowledge. The Court assessed and accepted as
correct, the evidence or factual averments presented by Ms. Mare under oath and
rejected the bald and generalized denials of the bank. The Court said the
following:
“Ms Mare's factual allegations that the property has no perimeter fence nor any gate,
that she was present at the property when the statutory notice and the summons were
respectively allegedly left at the property, and that she did not have any telephonic
discussion with the sheriff about collecting the summons at his office, were not refuted
by the generalised and bald denials of those factual averments by the bank's senior legal
counsel, Ms Sabashnee Naidoo, who deposed to its answering affidavit. She did not on
behalf of the bank engage with Ms Mare’s factual allegations in this regard (Wightman
t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375F-376B) nor
could she, on the face of it, have any first-hand knowledge of whether and how the
sheriff served the statutory notice and summons and what communications have
transpired between the sheriff and Ms Mare. Her generalised and bold denials cannot
be said to have created a genuine factual dispute. The sheriff, who is a party to these
proceedings, did not file an affidavit nor was one obtained from him to take issue with
the veracity or accuracy of Ms Mare's factual averments in this regard. In the
circumstances, Ms Mare's factual averments must be accepted as correct…”9
[29] It is trite that the sheriff’s return is prima facie evidence of the facts therein
stated. In the context of this matter, there is prima facie evidence that the
summons was served by way of affixing to the main or principal door of the
applicant’s chosen domicilium address. Section 43 (1) and (2) of the Superior
Courts Act provides as follows;
9 ABSA v Mare paragraph 20.
16
“Execution of process by sheriff
43. (1) The sheriff must, subject to the applicable rules, execute all sentences,
judgments, writs, summonses, rules, orders, warrants, commands and processes of any
Superior Court directed to the sheriff and must make return of the manner of execution
thereof to the court and to the party at whose instance they were issued.
(2) The return of the sheriff or a deputy sheriff of what has been done upon any process
of a court, shall be prima facie evidence of the matters therein stated.”
[30] The applicant did not dispute that service of the summons at his chosen
domicilium address, if it did take place as described in the return of service, which
return of service contained prima facie evidence, would be regarded as competent
and effective service, in accordance with Rule 4 (1)(a)(iv) and numerous other
cases10. The applicant however wanted the Court a quo to accept his bald and
generalised assertion, to the effect that he was in constant contact with his tenant
and that around the time of service of the summons the tenant was at the
domicilium address. Such evidence amounts to hearsay and is speculative. It is
not the clearest and satisfactory evidence as articulated in Deputy-Sheriff for
Witwatersrand District v Harry Goldberg and Others 11. It therefore cannot
impeach, displace or overturn the prima facie evidence of the sheriff.
[31] The applicant argues that the onus is on the sheriff or the respondent to
show that indeed there was service of the process at the chosen domicilium
address by way of affixing. The following submission was made in the
applicant’s heads of argument12;
10 Nkata v FirtsRand Bank Ltd 2014 (2) SA (WCC); ABSA v Mare (supra) and Nonjabulo Lerato Buthelezi v Liquid
Vehicle, a product of Wesbank, a Division of Firstrand Bank Limited.
11 Deputy-Sheriff for Witwatersrand District v Harry Goldberg and Others 1905 TS 680.
12 CaseLines 10-7 to 10-8 at paragraph 7.2.6.
17
“In other words, once the sheriff's return (which is regarded as a prima facie
evidence of its content) is disputed, the burden of proof shifts to the sheriff or the
respondent and indeed, the moment the applicant received the rescission
application challenging the contents of the sheriff's return, the obligation was on
the applicant to obtain the sheriff's affidavit or explanation on why the service
was executed in that manner i.e. by affixing.”
[32] That however is not the law. The onus is not on the respondent (the bank) in
this matter, but on the applicant, who seeks to impeach the sheriff’s return of
service. In Absa Bank Limited v Collier13 Savage J put it thus;
“[37] Prima facie evidence calls for an answer and places an evidential burden
on the respondent. It follows that where a respondent seeks to impeach a return
of the sheriff this must be done on ‘the clearest and most satisfactory evidence’. It
is not open to a respondent to impeach a return on flimsy grounds or when there
exists no reasonable basis on which to do so. In Sussman & Co (Pty) Ltd v
Schwarzer it was stated that:
‘…If the respondent then wishes to impeach those facts then the onus shifts to
him to show by clear evidence that although the return shows that the
requirements of sec. 8(b) have been complied with they were in fact not complied
with and that the return is not a proper return. Where, however, the return itself
does not show that the requirements of the sub-section have been complied with,
then the onus is not shifted and it re sts on applicant to show that in fact the
requirements have been complied with and that the return is in fact a nulla bona
return.’”
13 Absa Bank Limited v Collier (A314/2014) [2015] ZAWCHC 26; 2015 (4) SA 364 (WCC) (12 March 2015)
Conclusion
[32] It would be absurd for a Court to accept bald and generalised statements of
a litigant seeking to impeach a sheriff s return of service, such as the statements
of the applicant in casu and displace, or overturn the prima f acie evidence of
service contained in the return of service, on the mere say so. All that needs to
happen, on the applicant's version, is that a litigant must come to Court and state
the process was not served because someone was there, and the Court must then
on such say so accept that such was the case. I do not agree and no other Court
will find otherwise. For all the above reasons I am of the view that the appeal,
based on the advanced reasons would have no reasonable prospects of success.
There is in addition, no other compelling reason why the appeal should be heard.
It follows that the application for leave to appeal must fail. The speculation and
hearsay of the applicant therefore cannot impeach, displace or overturn the prima
facie evidence of the sheriff.
Order
[33] In the result I make the following order;
1. The application for leave to appeal is dismissed with costs.
SATHOBANE
ACTING JUDGE OF THE IDGH COURT
GAUTENG DIVISION , PRETORIA
18
19
APPEARANCES:
For Applicant: Mr. Ndobe,
Instructed by: Ndobe Incorporated,
Nieuw Muckleneuk, Pretoria.
For Respondent: Adv. Nkosi,
Instructed by: Findlay & Niemeyer Incorporated,
Hatfield, Pretoria.
Date of judgment: 24 AUGUST 2026 - This judgment was handed down
electronically by circulating to the parties’ legal representatives by e-mail, by
being uploaded to the CaseLines platform of the Gauteng Division and by release
to SAFLII. The date and time of hand down is deemed to be 10:00 on 24
AUGUST 2026.