Durban area, for example, has been divided into three sub-areas: Durban Central;

Durban North; and Durban South. If you want to serve a summons on a firm situated in
the centre of Durban, you have to use the sheriff for Durban Central, and may not use
the sheriffs appointed for the other two areas.
2 The issue of process and duties of the sheriff
Before you are legally permitted to serve a court document, it must be issued.
Documents that initiate legal proceedings such as a summons or notice of motion are
given a case number (a consecutive number for the year during which it is filed), and a
court file is opened. (If, after issuing the document, it is discovered that the address
was wrong, it is necessary to amend the document, sign the amendments, and then
send the document back to court where the registrar or the clerk of the court, as the
case may be, will reissue the document by signing the amendments.)
After being issued, the following documents will be sent to the sheriff for service :
1. The original document (which will be returned to the court file);
2. The number of copies of the document which need to be served (e.g. if there are
three defendants then you will need three copies for service)
3. An extra copy of the document (which will be returned to you to place on your office
file).
The sheriff has various duties he must perform when serving court process:
1. He must explain the nature and contents of the document to the person being served
2. The sheriff must then hand a copy of the document to that person. If the document
is a summons or a notice of motion, the sheriff must warn the defendant or respondent
of the consequences of failing to defend the action or oppose the application. If
requested to do so, the sheriff must show the original or a certified copy of the
document to the person being served. The purpose of this is to allow the person to
compare the original with the copy of the document being served on him.
3. The extra copy of the document will be returned to the attorney who requested that
the service be carried out, together with the sheriff’s return of service. (A return of
service is a written report from the sheriff stating when, where and how he served the
document. The ‘return of service’ constitutes prima facie proof of service. It is therefore
essential to always check that the return has been properly signed by the relevant
sheriff).
If the sheriff is unable to successfully serve a summons or notice of motion in terms of
the rules, he completes what is called a return of non-service.
  However, not all court process has to be served by the sheriff or his deputies. A
number of court documents that follow the initial summons, such as a notice of
intention to defend, a plea, or a replication, need not be served by the sheriff. In
these cases, it is sufficient to deliver the documents to the service address
indicated on the initial summons or notice of motion, either yourself or by means
of a messenger employed by your law firm.
 The indicated address will usually be the address of the firm of attorneys acting
for your opponent. That firm will stamp the original and two copies of any
document delivered to them as follows: ‘Received Without Prejudice’. The
original and one copy will be returned to you. You will keep the copy in your
office file so that you can prove that the other side has received the document,
and file the original with the registrar or clerk of the court, who will place it in
the court file.
 Rule 4A provides that all process, other than process which initiates application
proceedings, may be served by hand at the physical address for service
provided, registered post to the postal address provided, or facsimile or
electronic mail to the respective addresses provided. Rule 4A explicitly provides
that service under this rule need not be effected through the sheriff.
 Court documents which initiate interlocutory applications (e.g., an application to
compel the other side to discover) need not be served by the sheriff. The reason
is that an interlocutory application is an application which is a part of
proceedings that are already pending before the court, and addresses for the
service of these documents are already indicated in the documents relating to
those pending proceedings. In other words, it is usually only the initial court
documents in legal proceedings which are served by the sheriff.
3 Methods of service in terms of the Rules of Court
In this section, we consider the usual methods of service available in terms of the
Magistrates’ Courts Rules and High Court Rules, followed by a consideration of
specialised forms of service, such as edictal citation, substituted service, and service
outside of South Africa’s borders.
3.1 The usual methods of service in the High Court
The different methods of service in the High Court are set out in rule 4(1)(a) of the
High Court
Rules:
1. Personal service: Personal service should be used whenever possible, and the other
methods of service provided for in the rules should only be used where the defendant
or respondent is elusive or untraceable. Here the court process is delivered to the
person personally, by which it is meant that the sheriff is actually in the defendant or
respondent’s presence, and hands the relevant document to him. Where the person to
be served is a child (younger than 18 years), or is under some form of legal disability,
the process must be delivered to that person’s guardian, or tutor, or curator, as the
case may be.
The High Court Rules do not provide for any instances where personal service is the
only method of service permitted, but the judges of the various High Courts have used
their discretionary power to make it a rule of practice that personal service is required
in certain matters, such as in divorce proceedings, sequestration proceedings, and
cases where the attorney wishes to withdraw as the attorney of record. In cases where
personal service is required but not possible, application must be made for directions
from the court as to substituted service, in terms of rule 4(2). If the person to be
served refuses to accept the document, it may simply be dropped at his feet.
2. Leaving a copy at the place of residence or business : With this type of service, the
document may be left with a person at the place of residence or business of the
defendant or respondent, provided that the person is apparently in charge of the
premises, and is apparently not younger than 16 years old. Both these requirements
must be satisfied for the service to be effective.
As far as the place of residence of the person to be served is concerned, if that person
resides in a hotel, boarding house or similar residential building, service on the manager
of the hotel or boarding house or hostel will be sufficient. However, in the case of other
types of residential buildings (e.g. a block of flats), which are occupied by more than
one person or family, service must be effected in that portion of the building occupied
by the person to be served. For example, if the person to be served resides in a block
of flats, it will not be sufficient to serve the document concerned on the caretaker of
that block of flats – it must be served on an occupant of the flat in which the defendant
or respondent resides. If a person has more than one place of business, or more than
one residence, service may be made at any one of these.
 In the case of Cohen and Another v Lench and Another, the issue was whether a
notice of cancellation affixed to the outside gate of a gated townhouse complex
constituted delivery, in circumstances where the chosen domicilium was a
specific unit in the complex. The court held that the chosen domicilium was the
specific unit in the complex and not the complex itself, and the fact that access
could not be gained to the chosen domicilium did not entitle the sellers to choose
an alternative place for delivery.
The place of business of the person to be served is the place where that person
conducts his own business (the person is self-employed), as opposed to the place
where he is employed by someone else.
3. Service at the place of employment of the person to be served: Here service is
effected by delivering the document to a person who is apparently in authority over the
person to be served, and is apparently not younger than 16 years old. Both these
requirements must be satisfied for the service to be effective.

4. Service at the domicilium citandi et executandi of the person to be served :

A person’s domicilium citandi is an address which has been chosen by that person for
service of documents upon him. Many contracts contain a clause appointing a
domicilium citandi, and you will usually find the term domicilium citandi et executandi
used, which means the address for the purposes of service (citandi) and execution
(executandi).Once a person chooses a domicilium citandi, service at that place will
usually be good, despite the fact that the person to be served no longer resides there;
or has abandoned the property; or is not known at that address; or even if it is a vacant
piece of land. Service must be effected strictly in accordance with the relevant
domicilium clause. The purpose of domicilium addresses is that the parties should not
be required to search for one another’s whereabouts when wishing to litigate.
In some cases, the use of domicilium addresses has been abused. For example, certain
commercial enterprises have been known to include their own addresses in standard
form contracts as being the domicilium citandi of the other contracting party. Should
the other party then be sued following an alleged breach of contract, the summons on
the defendant would be delivered to the plaintiff’s address, and the first time the
defendant would find out that legal proceedings had commenced against him would be
after default judgment had been granted. Such misuses of domicilium addresses have
led the courts to treat these addresses with caution, with the Appellate Division
eventually deciding that courts have a discretion whether or not to accept domicilium
addresses.
As a general rule, the courts are reluctant to allow the use of a domicilium address
when the plaintiff is aware that the defendant is unlikely to receive notice of the
proceedings if the domicilium address is used. An example of this would be when a
bank is foreclosing on a mortgage bond and the defendant has already departed from
the mortgaged property that is also the domicilium address.
The plaintiff is not obliged to serve at the domicilium address; he can choose to use any
of the service methods provided for in the rules.
5. Service on a company or a close corporation: If you want to serve court documents
on a company or close corporation, you may serve the process at its registered office,
or at its principal place of business within the court’s jurisdiction, or in any manner
provided by law.
Service has to be effected by handing the process to a responsible employee, or, if
none of the employees wants to accept service, by affixing the document to the main
door of the registered office or principal place of business.
6. Service on an agent duly authorised in writing to accept service: The agent must
produce a written authorisation to accept service of the process.
7. Service on a partnership, firm or voluntary association:
In these cases, the process may be left at the place of business of the partnership, firm
or voluntary association with a person who is apparently in charge of the premises, and
is apparently over 16 years old. If there is no place of business, then the process may
be served on a partner of the partnership; or the proprietor of the firm; or the chairman
or secretary of the managing body of the association. Remember that in the case of a
partnership, this only applies if you are acting against the partnership as such. If you
are acting against partners in their individual capacities, the process will have to be
served on each partner, using one of the methods laid down in the rules.
8. Service on a local authority or a statutory body: In the case of local authorities
(including municipalities), process must be delivered to the town clerk, or city manager,
or mayor of the local authority. In the case of statutory bodies, service may be effected
by delivering the process to the secretary, or to a member of the board, of the statutory
body.
9. Service on two or more persons being sued in their joint representative capacity:
Here service must be effected on each of these persons individually.
10. Service in legal proceedings against the state, a province, or a Minister or Deputy
Minister in his or her official capacity: In these cases, the process may be served at the
office of the State Attorney situated in the area of jurisdiction of the court out of which
the process was issued. The office of the State Attorney of KwaZulu-Natal, for example,
is situated in the MetLife Building at 391 Anton Lembede Street, Durban. This
information can be easily gleaned from the Department of Justice and Constitutional
Development’s website and should be checked regularly for any changes.
11. Service on prisoners: In these cases, the process may be served on the inmate
personally. The official of Correctional Services who is in charge of the prison in which
the inmate is detained must assist to facilitate the service of the process upon the
inmate personally.
12. Service on foreign diplomats: See the case of Portion 20 of Plot 15 Athol (Pty) Ltd v
Rodrigues.
In terms of High Court rule 4(1)(b), service must be effected as near as possible
between 7 in the morning and seven o’clock at night, and in terms of rule 4(1)(c),
service may not be effected on a Sunday unless the court or a judge gives permission.
The only exception to this rule is that a warrant of arrest may be validly served on a
Sunday.
Section 44(1)(a) of the Superior Courts Act 10 of 2013 also provides for the service of
process of court by means of fax or any other electronic medium ‘as provided by the
rules’. However, the High Court Rules do not, as yet, provide for such means of service,
and we anticipate that these rules will be amended to give effect to this provision of the
Superior Courts Act in due course.
The court has a judicial discretion to determine, based on the facts, whether service
was effective. If the court takes the view that service was defective, it may order the
process to be served again.
The sheriff has a duty to explain the nature and contents of the documents to the
person on whom he serves the documents, and he has to record that he has done so
on his return of services.
3.2 The methods of service in the Regional and District Magistrates’ Courts
The methods of service in Regional and District Magistrates’ Courts matters are set out
in rule 9 of the Magistrates’ Courts Rules which, with minor variations, is a duplicate of
the corresponding High Court Rule. The comments made in respect of the High Court
Rules generally apply to the equivalent Magistrates’ Courts Rules as well.
A summary of the various methods of services:
1. Personal service: In terms of rule 9(3)(a), as in the case of the High Court, personal
service makes provision for service on a guardian, tutor, or curator when the person is
a child or under some form of disability. Note also that any process through which
divorce action or action for nullity of marriage is instituted requires personal service in a
Regional Magistrates’ Court.
2. Service upon a duly authorised agent: This also takes place in terms of rule 9(3)(a).
3. Service at the residence, or place of business of the defendant, in terms of rule 9(3)
(b): The person served must be apparently 16 years or older.
4. Service at the defendant’s place of employment in terms of rule 9(3)(c):103 Note
that a person apparently in charge at the defendant’s place of employment need not be
a person who is also apparently in authority over the defendant. For example, one of
the defendant’s co-workers may be in charge of the premises when the sheriff arrives
to effect service, but does not have any authority over the defendant. Service on such
person would be permissible in a Regional or District Magistrates’ Courts matter, but not
a High Court matter. In High Court matters, service must be effected on a person
‘apparently in authority over the defendant’ In terms of a proviso to Magistrates’ Courts
rule 9(3), the court or the clerk of the court may treat service at the defendant’s place
of employment as invalid if there is reason to doubt whether the process served has
come to the actual knowledge of the person to be served.
5. Service at the defendant’s domicilium citandi in terms of rule 9(3)(d): The sheriff
may serve at the defendant’s domicilium citandi by delivering or leaving a copy at the
chosen domicilium.
6. Service upon a corporation or company: In terms of rule 9(1)(e), service may be
effected on a corporation or a companyeither at its registered office, or at its principal
place of business, situated within the area of jurisdiction of the court concerned, on a
responsible employee, or if they refuse to accept service, by affixing a copy to the main
door. When the sheriff sends the process by registered mail, he must request that the
addressee acknowledge receipt. If an acknowledgement is not received, the sheriff will
mention this fact in his return of service. Although serving by means of registered post
may seem to be an easy option, this is not necessarily the case. Many debtors do not
collect registered post which is sent to them, and, as stated above, the fact that there is
no acknowledgement of receipt will be mentioned in the sheriff’s return of service. The
lack of an acknowledgement of receipt usually gives rise to doubt as to whether the
document concerned has been received, and may result in the court treating the service
as invalid. Rule 9(3) specifically provides that if process is served by registered post,
where there is reason to doubt that the served process has come to the actual
knowledge of the person on whom it was supposed to be served, and in the absence of
satisfactory evidence, the court may treat such service as invalid.
7. Service upon state organs and state officials: Where the defendant is a state or
provincial department, or a Minister, Deputy Minister or Premier in his official capacity,
rule 9(3)(g) permits you to serve process on the national or local offices of the State
Attorney.
8. Service by affixing a copy of the document to the outer or principal door or security
gate or placing a copy in the post-box: Service in this way is allowed if the person who
is going to be served with the process or document keeps his residence or business
closed, thereby preventing the sheriff from serving the process upon him (in terms of
rule 9(5).
9. Service upon a partnership: In the case of a partnership, the sheriff may, in terms of
rule 9(7)(a), serve at the office or place of business of the partnership. If the
partnership does not have an office or place of business, then the sheriff may serve
upon any member of the partnership (service on the member must be effected in any
matter prescribed in rule 9).
10. Service upon curators, executors, guardians, liquidators and trustees: If two or
more curators, executors, guardians, liquidators or trustees of an insolvent estate are
being summonsed in their capacity as such, then service may be effected by serving on
any one of them (rule 9(7)(b).
11. Service upon clubs, societies and similar bodies: In the case of a syndicate,
unincorporated company, club, society, church, public institution or public body, the
sheriff may serve at the local office or place of business of that body. Otherwise he may
serve on the chairman or secretary or similar officer of the body (rule 9(7)
(c).Magistrates’ Court rule 9(9)(a) makes provision for service of any notice, request,
statement or other document which is not process of the court to be effected by hand
delivery or by sending the document through registered post. Rule 9(9)(a) further
provides that such process may also be served by sending it by facsimile or electronic
mail, provided the plaintiff has so requested and the defendant has consented thereto
in writing. Where service is effected by facsimile or electronic mail, Chapter III, Part 2
of the Electronic Communications and Transactions Act 25 of 2002 would be applicable
to such service. Rule 9(14) provides for service in foreign countries. As a general rule,
process, notices and other documentation are not served on Sundays or public holidays.
However, interdicts, warrants of arrest, and warrants of attachment of property may be
executed on any day at any hour and at any place. What happens if a document is
improperly served on your client. E.g. The sheriff serves a summons on your client
while he is enjoying his Sunday dinner. Does this mean that your client may simply
ignore the summons? Unfortunately for your client, he cannot simply ignore the
summons. Improper service is one of the grounds upon which one is entitled to except
to a summons.
Section 107 of the Magistrates’ Courts Act105 makes it a criminal offence to obstruct a
sheriff in the execution of his duties;106 dispose of goods attached by the sheriff; make
a false declaration; fail or refuse to point out property you own or refuse orneglect to
deliver the title deeds of immovable property.
4 Substituted service and edictal citation
4.1 Substituted service in general
If you have documents that need to be served (e.g. a summons or a notice of motion)
and you are unable to serve by one of the usual methods of service, you will have to
make an application to court for authority to serve these documents in some other way.
This is known as an application for substituted service. The Magistrates’ Courts rule
9(10) provides for substituted service (service inside South Africa’s borders) in the
Regional and District Magistrates’ Courts, and reads as follows:
Subject to rule 10, where the court is satisfied that service cannot be effected in any
manner prescribed in this rule, and that the action is within its jurisdiction, it may make
an order allowing service to be effected by the person and in the manner specified in
such order.
For edictal citation (service outside South Africa’s borders), Magistrates’ Courts rule 10
is relied on (which substantially replicates High Court rule 5). Thus, substituted service
may be used only where the defendant or respondent is known or believed to be inside
the country, while service on persons outside South Africa’s borders must be effected
by way of edictal citation in the District Magistrates’, Regional Magistrates’ and High
Court. Note that it is only service of documents commencing legal process on persons
outside South Africa’s borders which must be effected by way of edictal citation.
The reasons for your inability to serve the documents may vary from not knowing the
whereabouts of the defendant or respondent, to knowing the whereabouts but being
unable to serve because the defendant or respondent refuses to open the door to the
sheriff, or is avoiding service in some other manner.
You may suggest to the court whatever alternative method of service you like, as long
as it is a common sense way to secure service in the particular circumstances. For
example, if the defendant has disappeared, but is known to be somewhere in the
Durban area, you may suggest to the court that a shortened form of the document be
published in a newspaper circulating in the Durban area. If the defendant is avoiding
service, you may request the court’s permission to serve on the defendant’s relatives.
The court will not grant an order substituting the usual method of service with another
method suggested by you unless you have shown the court that you have already tried
to locate the defendant but, despite your best efforts, are still unable to locate or serve
on him. This amounts to the allegations which must be contained in an application for
substituted service are often precisely the same as those which would have to be
contained in an application to serve by means of edictal citation. It makes sense,
therefore, to deal with these allegations in our discussion of the edictal citation
application.
4.2 Service of legal process outside the country
4.2.1. High Court, Regional and District Magistrates’ Courts:
application for edictal citation
In terms of Magistrates’ Courts rule 10 or High Court rule 5, if you want to serve
documents instituting High Court proceedings outside the Republic, then you first have
to make an application to court for leave to institute proceedings by means of edictal
citation. For example, if you want to institute an action in the KwaZulu-Natal Local
Division in Durban against a defendant living in London, then you will first have to apply
to that court for leave (i.e. permission) to sue by means of edictal citation. This is the
case whether or not the defendant or respondent’s address in the foreign country is
known to you. If the precise address is unknown, then your application will be a dual
one; in effect: (a) to ask for leave to proceed by way of edictal citation and (b) to ask
leave to use a method of substituted service. An edictal citation (also called just an
edict or citation) is merely a special type of summons similar in almost every respect to
a normal summons except that it is addressed to the defendant directly, and not to the
sheriff as is normally the case. This is because there may not be a sheriff, or similar
officer, serving legal process in the foreign country in which you wish to have the
document served.
The need to apply to court for leave to sue by edictal citation only applies when you
want to serve documents instituting legal proceedings in another country. If you want
to serve any other kind of document in another country, then Magistrates’ Courts rule
10(3) and High Court rule 5(3) applies, and it is not obligatory to make an application to
court (you may simply request leave to do so at any hearing at which the court is
dealing with the matter).
Now consider the allegations you would have to include in the affidavits supporting your
application:
1. The nature and extent of the claim;
2. The grounds upon which the claim is based;
3. The grounds upon which the court has jurisdiction to hear the claim;
4. The method of service you are asking the court to authorise;
5. The last known whereabouts of the person to be served;
6. The enquiries that have been made to find out where that person currently is; and
7. Any other information which may assist the court to make a decision.
In relation to the manner of service which the court is being asked to authorise, the
affidavit must set out a proposal for service, and motivate why this particular method of
service is being proposed. For example, you may state in the affidavit that the
defendant is believed to be in the London area for a particular reason, that he used to
read the The Times newspaper regularly, and that therefore the publication of a
shortened form of the summons in that newspaper should come to his notice. You will
also attach the proposed shortened summons to the affidavit for the court’s approval.
In relation to the steps taken to establish the person’s whereabouts, you have to satisfy
the court that every reasonable stephas been taken, but to no avail. Reasonable steps
would usually include engaging tracing agents to do a search. A copy of their report
indicating their lack of success would be annexed to the founding affidavits. Depending
on the circumstances of the particular case, you may also include the following details
in this regard:
1. The defendant’s last known place of residence;
2. The last place from which news of the defendant was obtained;
3. The defendant’s last known domicile;
4. The residences of the defendant’s spouse or partner, parents and other near
relatives;
5. The defendant’s place of birth;
6. Details of all the enquiries made to ascertain the defendant’s present whereabouts,
for example:
1. His spouse or partner, parents and relatives have been approached in order to
ascertain his present whereabouts, but to no avail
2. His last known place of employment has been contacted but they have no idea
where he is
3. Official sources such as the Department of Labour have no record of his present
address
4. Tracing agents have been appointed but have been unable to trace him; and
5. Details indicating that all possible sources of information about the defendant’s
whereabouts have been fully investigated, and all necessary steps have been taken to
locate the defendant.
Both an application for substituted service and an application to serve by edictal citation
are brought ex parte. The applicant approaches the court alone, without the respondent
having to be present, as these applications concern respondents who cannot be served
with documents in the normal way because they cannot be traced or are out of the
country.
4.2.2. Substituted service via electronic media
A court may order any manner of substituted service as is likely to bring the
proceedings to the notice of the party to be served. The internet has brought about a
substantial shift in the way people communicate and in how they access news and
information. This has an on-going and significant impact on communication within the
law.
In 2008, an Australian court took the bold step of authorising substituted service using
Facebook, allowing service of a notice of default judgment on a defendant via
Facebook. The same issue arose in the South African case of CMC Woodworking
Machinery (Pty) Ltd v Pieter Odendaal Kitchens.
In this instance, the KwaZulu-Natal High Court in Durban held, inter alia, that it was
not unreasonable to expect the law to recognise and accommodate technological
change and thus authorised substituted service of a notice of set down by way of a
Facebook message addressed to the inbox of the defendant’s Facebook page. In
reaching its decision, the court examined several risks and pitfalls of such service.
These included: whether it constituted an invasion of privacy; whether the identity of
the defendant could be established; whether the Facebook profile was genuinely that of
the defendant (and not a hoax profile); whether it complied with the Electronic
Communication and Transactions Act 25 of 2002; whether there was any legal certainty
of service; and whether proof of service could be provided. Although the court was –
understandably enough – extremely cautious (ordering publication in a newspaper as
well), it nevertheless concluded that service on the defendant’s Facebook page was
permissible as an alternative method when none of the prescribed methods were
available, provided that certain factors were met.
Apart from showing the usual factors required for why service in terms of the rules
would not be possible, a court must also consider whether there is a reasonable
certainty that the social media profile is indeed that of the party who needs to be
served. Furthermore, that there is reasonable certainty that the party uses the social
media network (i.e. the court must be satisfied that the notice is likely to come to the
party’s attention) and that legal certainty of service would be achieved. Therefore, while
the court may be open to new forms of service using electronic media, each case of
substituted service using electronic media should be decided on its own merits. The
court must also take into account the type of document that is to be served. There are
an increasing number of cases around the world in which similar approaches have been
approved, for example, in Australia, the USA, Canada and the United Kingdom, while in
South Africa, the KwaZulu-Natal Local Division, Durban, has also allowed service of a
notice on a defendant’s LinkedIn social media platform.
5 Jurisdiction and service distinguished
The High Court and Magistrates’ Courts Rules regulating the service of court process
cannot, in any way, be interpreted as conferring jurisdiction on a court. E.g. the
domicilium addresses in a contract only appoint physical addresses for the purpose of
the service of documents; the contract cannot be interpreted to hold that the court
having jurisdiction over the area in which the domicilium addresses is situated will have
jurisdiction in any dispute arising out of the contract. Similarly, with regard to High
Court practice, although service at a defendant’s place of work or employment is
permissible in terms of High Court rule 4, the court having jurisdiction over the area in
which these places are situated will not have jurisdiction unless it is also the forum
domicilii (i.e. the court having jurisdiction over the area in which the defendant is
domiciled or resident). For example, if a defendant were on holiday in a location that
was not his place of residence, domicile, or even place of employment or business
(which are additional grounds for jurisdiction in Magistrates’ Courts practice in terms of
s 28(1)(a) of the Magistrates’ Courts Act), and a local sheriff was able to successfully
serve a summons on the defendant personally, it would be good service, but it would
not give the local court jurisdiction to hear the matter.