Background and Facts of the Case
The Plaintiff, L.R., instituted divorce proceedings against the Defendant, T.S., and set the matter down on the Unopposed Divorce Court roll. The parties had entered into a civil union on 16 December 2017 and concluded an antenuptial contract on 28 November 2017, governing their marital regime out of community of property with the inclusion of the accrual system.
The Plaintiff alleged that the Defendant was duly and properly served with the summons on 14 December 2023 at her place of employment. The Sheriff’s return of service confirmed that a copy of the Combined Summons, Particulars of Claim, and annexures was served on “M.G.-RECEPTION” in the Defendant’s temporary absence, as the Defendant was in Australia at the time. The Sheriff noted that the company was closed until 5 January 2024 and the documents were placed in the safe.
On 6 March 2024, the Defendant’s attorneys addressed correspondence to the Plaintiff’s attorneys, stating that the Defendant was not served with the summons and requested the Plaintiff to remove the matter from the roll and tender wasted costs. The Defendant’s attorneys threatened to oppose the matter on 15 March 2024 if the Plaintiff did not comply with their request.
The Plaintiff’s attorneys replied on 7 March 2024, maintaining that the Defendant was properly served and that they would not remove the matter from the roll. They further stated that if the Defendant elected to file a notice of intention to defend out of time, the Plaintiff would seek costs against her.
The Defendant’s attorneys served a Notice of Intention to Defend on 11 March 2024 and argued that the matter should not be on the roll as no personal service had been effected on the Defendant.
Arguments Advanced by the Parties
The Plaintiff argued that the Defendant was properly served with the summons at her place of employment in her absence. The Plaintiff’s attorneys contended that the employee upon whom the summons was served confirmed that it had been handed over to the Defendant upon her return to work in January 2024. Furthermore, the Plaintiff’s attorneys claimed that a copy of the issued summons was also served on the Defendant by email on 29 November 2023, and the Defendant confirmed receipt of the summons during telephone conversations with the Plaintiff’s offices.
The Defendant, on the other hand, maintained that she was not personally served with the summons as required by the Divorce Act. The Defendant’s attorneys argued that the Sheriff’s return of service clearly indicated that no personal service was effected on the Defendant on 14 December 2023, as she was in Australia at the time. They contended that the alternative attempts at service did not cure the Plaintiff’s failure to ensure personal service by the Sheriff in these circumstances.
The Defendant’s attorneys submitted that the Plaintiff, as the dominus litis, had a duty to ensure that personal service was effected on the Defendant. They argued that the Plaintiff intentionally or negligently failed to comply with the Practice Directive by misrepresenting that service had been properly effected despite the absence of personal service in a divorce action.
The Court’s Analysis and Case Law referred to
The Court emphasised that service of any process through which a divorce action is instituted shall only be effected by the Sheriff on the Defendant personally, as per section 17 of the Divorce Act 70 of 1979. The Court found that the Plaintiff had not brought an application nor laid a valid basis for substituted service, and had intentionally or negligently failed to comply with the Practice Directive of the division by misrepresenting that service had been properly effected despite the absence of personal service.
The Court referred to the following case law
Mitchell, Wendy Lee v De Waal, Rene Juan, Case Number 1252/2022, Free State Division, Bloemfontein: This case dealt with a similar issue of improper service in a Rule 43 application. The Court held that the summons was not properly served on the Respondent and that instances where a summons is issued and “properly” served later cannot avail an Applicant seeking relief. The application was dismissed with costs.
Ex Parte Satbel (EDMS) Bpk: In re Meyer v Satbel (Edms) Bpk 1984 (4) SA 347 (W) at 326 G: This case emphasizes the duty of legal practitioners to draw the presiding Judge’s attention to any deviation from the standard forms and orders in the papers and to offer an explanation therefor.
Multi-Links Telecommunication Ltd v Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265 (GP), at 289 E-290 A: The Honourable Fabricius J agreed that certain general standards apply in the context of whether or not Counsel are obliged to bring an authority, which precluded the granting of an order sought, to the Court’s attention.
O’Donoghue v Human 1969 (4) SA 35 (E): In this case, Kannemeyer J concluded that irregular service rendered the proceedings ineffectual, and such service was a nullity that could not be rectified by way of condonation.
Jone J Motloung (First Plaintiff), Mosele M Moloi (Second Plaintiff) v The Sheriff Pretoria East (Defendant) and Others, Case Number: 13249/2014, Gauteng Division, Pretoria: The Court held that if a summons is a nullity for lack of a signature by the Registrar, service of the same would not constitute the institution of an action and would not result in the suspension of prescription.
The Court also refered to the Practice Directive of the Gauteng Division of the High Court.
The Court found that the Plaintiff had intentionally or negligently failed to comply with the Practice Directive of the division by misrepresenting that service had been properly effected despite the absence of personal service in a divorce action. This is evident from paragraph [14] of the judgment:
“[14] As mentioned above, the Plaintiff has not brought an application nor laid a valid basis for substituted service. The Plaintiff has intentionally or negligently failed to comply with the Practice Directive of this division, by misrepresenting that service has been properly effected despite the absence of personal service in a Divorce Action. This is a requirement when applying for a date on the Unopposed Divorce roll.”
The Court also referred to specific sections of the Practice Directive
Section 14.8 of the Practice Directive, as mentioned in paragraph [25] of the judgment, which states that any misrepresentation made in the date application process, whether intentional or negligent, shall result in the automatic invalidation of the date allocation.
Sections 7.7 and 5 of the Practice Directive, as mentioned in paragraph [36.6] of the judgment, which require the Plaintiff to create a separate section for compliance statements and upload a statement by the attorney applying for an unopposed divorce date.
Paragraph 14 of the Practice Directive, as mentioned in paragraph [36.7] of the judgment, which requires the Plaintiff to advise the registrar if no personal service by the Sheriff has been effected and not to misrepresent facts during the date application process.
The Court found that the Plaintiff’s conduct in refusing to ensure that personal service was effected was unacceptable and needed to be condemned to ensure such blatant disregard for compliance with the Divorce Act did not become the norm.
Order
After hearing Counsel for both sides, the Court made the following order:
(a) The matter was removed from the Unopposed Divorce Roll;
(b) The Plaintiff was ordered to pay the wasted costs occasioned by the removal of the matter.
The Court’s decision was based on several factors, including the irregular service of the Combined Summons, the unsigned Combined Summons with no case number before the Court, and the Plaintiff’s failure to comply with the Practice Directive and misrepresentation regarding personal service as required by the Divorce Act.
The Court found that the Plaintiff’s conduct, including misleading the Court under oath about proper service, failing to ensure personal service by the Sheriff, and not securing a court order for substituted service, prejudiced the Defendant. The Court held that this prejudice could be cured by an appropriate costs order against the Plaintiff.
In conclusion, the Court removed the matter from the Unopposed Divorce Roll and ordered the Plaintiff to pay the wasted costs resulting from the removal of the matter, due to the Plaintiff’s irregular service of the summons and non-compliance with the Practice Directive.
Questions and Answers About the Case
Q: What is the legal requirement for service of process in a divorce action in South Africa? A: According to section 17 of the Divorce Act 70 of 1979, service of any process through which a divorce action is instituted shall be effected by the Sheriff on the Defendant personally.
Q: What did the Court find regarding the Plaintiff’s compliance with the Practice Directive? A: The Court found that the Plaintiff had intentionally or negligently failed to comply with the Practice Directive of the division by misrepresenting that service had been properly effected despite the absence of personal service in a divorce action.
Q: What is the duty of legal practitioners when there is a deviation from standard forms and orders in court papers? A: As per Ex Parte Satbel (EDMS) Bpk: In re Meyer v Satbel (Edms) Bpk 1984 (4) SA 347 (W) at 326 G, legal practitioners have a duty to draw the presiding Judge’s attention to any deviation from the standard forms and orders in the papers and to offer an explanation therefor.
Q: What are the consequences of irregular service of a summons, as per O’Donoghue v Human 1969 (4) SA 35 (E)? A: In O’Donoghue v Human 1969 (4) SA 35 (E), Kannemeyer J concluded that irregular service rendered the proceedings ineffectual, and such service was a nullity that could not be rectified by way of condonation.
Q: What is the effect of a summons being a nullity due to the lack of a signature by the Registrar? A: According to Jone J Motloung (First Plaintiff), Mosele M Moloi (Second Plaintiff) v The Sheriff Pretoria East (Defendant) and Others, Case Number: 13249/2014, Gauteng Division, Pretoria, if a summons is a nullity for lack of a signature by the Registrar, service of the same would not constitute the institution of an action and would not result in the suspension of prescription.
Q: What did the Court say about the Plaintiff’s conduct in refusing to ensure that personal service was effected? A: The Court found that the Plaintiff’s conduct in refusing to ensure that personal service was effected was unacceptable and needed to be condemned to ensure such blatant disregard for compliance with the Divorce Act did not become the norm.
Q: What factors did the Court consider when making its decision? A: The Court’s decision was based on several factors, including the irregular service of the Combined Summons, the unsigned Combined Summons with no case number before the Court, and the Plaintiff’s failure to comply with the Practice Directive and misrepresentation regarding personal service as required by the Divorce Act.
Q: How did the Court find that the Defendant’s prejudice could be cured? A: The Court held that the Defendant’s prejudice, caused by the Plaintiff’s conduct, could be cured by an appropriate costs order against the Plaintiff.
Q: What was the Court’s final order in this case? A: The Court removed the matter from the Unopposed Divorce Roll and ordered the Plaintiff to pay the wasted costs resulting from the removal of the matter.
Q: What is the importance of complying with the legal requirements for service of process in divorce actions? A: Complying with the legal requirements for service of process in divorce actions, such as personal service by the Sheriff, is crucial to ensure that the Defendant’s rights are protected and that the proceedings are valid. Failure to comply with these requirements can result in the proceedings being rendered ineffectual and may lead to adverse costs orders against the non-compliant party.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline. A blog, managed by SplashLaw, for more information on Family Law read more here.