Service in the superior courts

December 1st, 2013

By Danie van Loggerenberg

On 27 July 2012 uniform rule of court 4A, dealing with the delivery of documents and notices, came into operation. On 23 August 2013 the Superior Courts Act 10 of 2013 that deals, in s 44, with transmission of summonses, writs and other process came into operation.

In Absa Technology Finance Solutions (Pty) Ltd v Michael’s Bid A House CC and Another 2013 (3) SA 426 (SCA) Lewis JA made the following remark concerning the National Credit Act 34 of 2005: ‘The [H]igh [C]ourt … held that the particular lease was not a lease. This may sound like a fragment of Alice in Wonderland.  If that is so, it is because the Act itself could have been written by Lewis Carroll, so peculiar are some of its provisions’ (at para 1).

The remark is apposite to some of the provisions of the uniform rules of court and the Superior Courts Act dealing with service in High Court practice.

Section 44(1)(a) of the Superior Courts Act provides for two instances in civil proceedings before a superior court where service may take place by means of transmission by fax or any other electronic medium ‘as provided by the rules’ –

  • first, in the case of any summons, writ, warrant, rule, order, notice, document or other process of a superior court; and
  • secondly, in the case of any other communication which by any law, rule or agreement of parties is required or directed to be served or executed on any person, or left at the house or place of abode or business of any person, in order that such person may be affected thereby.

There is, however, currently no rule providing for service by means of fax or any other electronic medium as contemplated in s 44(1)(a). In other words, there is simply a lacuna in the rules in this regard: Rule 4A is irrelevant and r 4(1) does not provide for the process of service by means of fax or any other electronic medium.

In the premises, the uniform rules of court should be amended to give effect to the provisions of s 44(1)(a) of the Superior Courts Act.

Rule 4A deals with service of documents and notices subsequent to service of process (which is provided for in r 4(1)(a)). The rule contemplates that a party may, under rr 6(5)(b), 6(5)(d)(i), 17(3), 19(3) and 34(8), provide an address at which service may take place in one or more of the following manners:

  • By hand at the physical address for service provided;
  • By registered post to the postal address provided; or
  • By facsimile or electronic mail to the respective addresses provided.

The problem, however, is that neither of rr 6(5), 17(3), 19(3) and 34(8), nor the relevant forms in the first schedule to the uniform rules of court, oblige a party to provide such party’s facsimile and electronic mail addresses. Rules 6(5)(d)(i), 17(3) and 19(3) simply require these addresses to be provided ‘where available’. Rule 34(8) contains no provision concerning facsimile and electronic mail addresses.

In any event, the current provisions concerning these addresses, and any possible amendment of the aforesaid rules in order to bring them in line with r 4A(1), would be to no avail as a result of the requirement in each of them that an address within 15 kilometres of the office of the registrar must be appointed at which a party will accept notice and service of all documents. The requirement of a physical address within 15 kilometres of the office of the registrar flies in the face of, and is contradictory to, the provisions of r 4A(1)(c) (as well as r 4A(1)(b)).

It is difficult to fathom why the framers of the uniform rules of court and the Superior Courts Act could not have dealt with the important issue of service of process and subsequent documents and notices (ie, the audi alteram partem principle) in a clear, uniform and harmonised manner at the outset. I submit that the necessary amendments should be introduced without delay.

Danie van Loggerenberg SC BIur LLB (PU for CHE) LLD (NMMU) is an advocate and an  extraordinary professor of law in Pretoria.

This article was first published in De Rebus in 2013 (Dec) DR 48.