11

Service of Process

11.1 Introduction
Service of process of the court, or legal delivery, is essential, as it gives legitimacy to
the litigation procedure and is a requirement of the audi alteram partem principle. Ser-
vice entails that the party initiating the litigation must bring the legal process to the
attention of the opposing party so that the opposing party becomes aware of the steps
being taken against him or her and the steps that need to be taken in response.1
Bringing a process of the court to the attention of the opposing party may be done:
(a) by the sheriff on the instruction of the initiating party; or
(b) personally by the initiating party or his or her legal representative. As a general pro-
position, the sheriff is responsible for the service of all documentation initiating
trial-action proceedings or motion proceedings.
Interlocutory applications, discovery notices and all other documentation that are not
listed below in paragraph 11.2.1.1 may be served by the initiating party or the party’s
legal representative. Service by the sheriff generally means service by hand and
obliges the sheriff to render a return of service to the party initiating the litigation. The
opposing party is physically presented with a true copy of the original process and may
also demand to inspect the original process. Where process is physically served by
the initiating party’s legal representative, the opposing party must acknowledge receipt
of service.

11.2 Service by the sheriff

A sheriff and a deputy sheriff are officers of the court appointed by the Minister of Jus-
tice in terms of the Sheriffs Act.2 The sheriff is not to be regarded as the agent of the
initiating party. Where the sheriff fails to act in accordance with the rules of court and
intentionally or negligently fails to discharge the duty of service or to carry out instruc-
tions properly, the basis of the sheriff’s liability lies in the law of delict and not contract
law or agency law.

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1 Interactive Trading 115 CC v SA Securitisation Programme 2019 (5) SA 174 (LP) at 176, where a
summons has not been served on defendant, any subsequent judgment may be set aside by a
HCR 42(1) rescission. Mere knowledge of the issue of a summons does not constitute service.
However, service is procedurally complete even where it is not carried out correctly according to
the rules but is received by the defendant who suffers no prejudice.
2 Act 90 of 1986. See in particular ss 2 and 3(1).

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The same sheriff may be appointed in both the lower and superior courts.3 Section 3(1)
of the Sheriffs Act provides that a sheriff’s duties and functions must be performed
within the area of jurisdiction of the lower or superior court for which the sheriff has
been duly appointed. When a sheriff effects service outside the jurisdictional area of
appointment, such service is defective.4
In order to effect service, the initiating party’s attorney of record must provide the sheriff
with the original process (the summons or the notice of motion), together with a true
copy for the opposing party.5 Before service can be effected, the process must have
been issued by the registrar or the clerk of the court, meaning that the front page of
the process must have been stamped, signed and dated. The sheriff will then display
the original document to the recipient and hand over a copy.6 It is also the duty of the
sheriff to explain to the recipient the nature and contents of the document.7 As a gen-
eral rule, the sheriff will then return the original, together with a duly completed and
signed ‘return of service’, to the attorney of record for filing in the court file.8
In the return of service, the sheriff or the deputy sheriff must make the following aver-
ments:
(a) the type of document(s) served on the recipient;9
(b) the manner of service;
(c) whether service was successfully effected on the recipient or a person qualified in
terms of the rules to receive service on behalf of the recipient;
(d) where and at what time service was effected;
(e) the nature and contents of the document served have been explained to the
recipient.10
The High Court rules and the Magistrates’ Courts rules clearly provide that the return of
service (or non-service, as the case may be) of the sheriff or a deputy sheriff of what

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3 Sheriffs Act s 2(2).

4 Superior Courts Act 10 of 2013 s 44(1)(a) and (b), a copy of the original summons, judgment,
order or process etc., may be transmitted to the jurisdiction of another sheriff by way of facsimile, or
any electronic medium, and service of the transmitted copy by the other sheriff on a person within the
jurisdiction of the other sheriff will have the same effect as if it had been the original.
5 MCR 9(1). There is no equivalent rule in the High Court.
6 This is the common practice in lower and superior courts. In Magistrates’ Courts, MCR 9(4)(a)
specifically provides that the sheriff shall, on demand by the person on or against whom process
is served, exhibit to that person the original or certified copy of the process. Although there is no
express provision in the rules of the High Court requiring that the original be exhibited to the
recipient, there can be little doubt that the recipient is entitled to have sight of the original should
he or she wish to see it and that therefore the practice is for the server to have the original availa-
ble for display at the time of service.
7 HCR 4(1)(d); MCR 9(4)(b). See also Absa Bank Ltd v Naude NO 2016 (6) SA 540 (SCA) at 542.
8 It is the duty of the initiating party’s attorney of record to examine the return and to ensure that it is
in order.
9 When a notice of motion is served, the return of service must indicate that the accompanying affi-
davit was also served.
10 A failure to render an explanation to the recipient will not result in a defective service where there
is no material prejudice to the recipient.

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has been done upon any process of the court constitutes prima facie evidence of the
matters stated therein.11 It thus provides prima facie evidence of the manner of service
and of the averments contained in the return of service. Because the return constitutes
only prima facie evidence of a presumption of proper service, it is possible for the
opposing party to challenge the averments in the return by adducing evidence to
show that service was insufficient, incomplete, defective or not in accordance with the
rules. The onus of rebutting the presumption is an onerous one.

11.2.1 Service in the High Court

11.2.1.1 Types of process
Section 43(1) of the Superior Courts Act provides that the sheriff or a deputy sheriff
must attend to the service of all the following documents and processes specifically
addressed to him or her:
(a) summonses;
(b) sentences;
(c) decrees;
(d) judgments;
(e) writs;
(f) rules;
(g) orders;
(h) warrants;
(i) commands;
(j) processes of the court.
The sheriff is solely responsible for the service of documentation initiating proceed-
ings, whether trial-action or motion-application proceedings, while interlocutory appli-
cations and certain other notices may be served directly by the litigating parties’
respective legal representatives. When a party intends to initiate application proceed-
ings on an opposing party who is represented by an attorney of record, the application
may be served on that party’s attorney by the initiating party or the legal representa-
tive.12 The same would not apply to a summons commencing trial-action proceedings,
which must always be served by the sheriff.

11.2.1.2 Time of service

HCR 4(1)(b) provides that service must be effected as near as possible between the
hours of 07h00 and 19h00. HCR 4(1)(c) provides that no service of any civil summons,
order or notice and no proceedings or act required in any civil action, except the issue
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11 Superior Courts Act s 42(2); Magistrates’ Courts Act 32 of 1944 s 17.

12 See HCR 4(1)(aA). In Cilliers AC, Loots C and Nel HC Herbstein & Van Winsen: The Civil Practice
of the High Courts & the Supreme Court of Appeal of South Africa 5th edn (Juta & Co, 2017)
(Herbstein & Van Winsen) Vol. I at 343, in such a case the process may also be served by the
sheriff. Note that ex parte applications such as an application to confirm or found jurisdiction
which is accompanied by an application to sue by way of edictal citation cannot be served by a
sheriff.

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or execution of a warrant of arrest, shall be validly effected on a Sunday unless the

court or a judge otherwise directs.13
In summary, the initiation of an action process entails three essential procedural steps.
Firstly, the issue of summons by the plaintiff, secondly, service of the summons by the
sheriff and thirdly, the exchange or delivery of all subsequent pleadings and notices
between the parties.

11.2.1.3 Manner of service

HCR 4 provides for service in the following manner:
(a) Personal service: by delivery of a copy of a process to the defendant personally
(known as personal service). However, where such a person is a minor or legally
incompetent, service is effected on the guardian, tutor, curator or the like of such
a minor or person under disability. Personal service is required in all matters
affecting legal status. Personal service is required in sequestration proceedings.
Service of a subpoena should also, where possible, be by personal service. In
matrimonial actions service is, according to practice, personal service on the
defendant. Although no reference is made in HCR 4 to service in divorce matters,
most High Court practice manuals would require personal service. Specific rules
regulate personal service to inmates of a prison.14

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13 Ex parte Reyneke 1966 (3) SA 308 (N), on good cause shown.

14 See s 99 of the Correctional Services Act 111 of 1998 provides that if it becomes necessary to
serve a civil process on an inmate, the sheriff must, prior to such service, hand a copy of the pro-
cess to the person in control of the specific prison who will then facilitate service on the inmate.

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(b) Residence or business: by leaving a copy of the process at the residence or

business place15 of the defendant, guardian, tutor, curator or the like. The copy
may be left with a person who:
(i) is apparently in charge of the premises at the time of service;
(ii) is apparently not younger than 16 years.
(c) Place of employment: by delivery of a copy of the process to the place of em-
ployment of the defendant, guardian, tutor, curator or the like. Delivery can be ef-
fected on a person:
(i) apparently not younger than 16 years;
(ii) apparently in a position of authority over the said person.
(d) Domicilium citandi: where the opposing party has a chosen domicilium citandi
delivery may be effected, or a copy of the process may be left at the opposing
party’s chosen domicilium.16
(e) Corporation or company: by delivery of a copy to a responsible employee of a
corporation or company at the registered office or principal place of business
within the court’s jurisdiction. If no employee is prepared to accept service, a
copy is attached to the principal door of such office or business place or in any
other manner prescribed by law.
(f) Agent: by delivery thereof to any agent properly authorised to accept service on
behalf of the person on whom service must be effected.
(g) Partnership or firm or voluntary association: service on a partnership, firm or
voluntary association will be effected by delivery at the place of business of the
partnership, firm or association. If there is no place of business then service shall
be effected on a partner, owner, chairman or secretary of the committee or other
body corporate of such association.
(h) Local authority or statutory body: service on a local authority or statutory body will
be effected by delivery of a copy to the town clerk or assistant town clerk or mayor
or secretary or similar official or member of the board or committee of such body
or in any other manner prescribed by law.17
(i) Co-defendants in a representative capacity: where there are co-defendants a legal
process must be served directly on each defendant. However, where two or more
persons are sued in their joint capacity as trustees, liquidators, executors, admin-
istrators, curators or guardians or in any other joint capacity, service must be ef-
fected on each of them in any manner set out in HCR 4.18

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15 This refers to the place where the defendant conducts his or her own business, not where he or
she is employed by someone else. See Smith v Smith 1947 (1) SA 474 (W).
16 See Cohen and Another v Lench and Another 2007 (6) SA 132 (SCA). The plaintiff is not obliged
to serve at the domicilium address but can choose any of the methods of service provided for in
the uniform rules of court. See Ex parte FirstRand Bank Ltd t/a FNB Home Loans v Sheriff, Brak-
pan and Others 2007 (3) SA 194 (W).
17 Vhembe District Municipality v Stewarts and Lloyds Trading (Booysens) (Pty) Ltd and Another
[2014] JOL 32063 (SCA), in terms of s 115(3) of the Local Government: Municipal Systems Act 32
of 2000, any legal process is properly served on a municipality when it is delivered to the municipal
manager or person in attendance at the municipal manager’s office.
18 By contrast, in the Magistrates’ Courts, in terms of MCR 9(7)(b) service is required to be effected
on only any one of such trustees, liquidators or executors.

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(j) Against the State: service on the administration of a province or an administrator

(now premier), minister or deputy minister in their official capacity shall be effected
at the office of the State Attorney situated in the area of the court’s jurisdiction
from which the summons is issued. For example, service in the Gauteng Division,
Pretoria (formerly the TPD) shall be on the Office of the State Attorney, Pretoria.
Service of any notice, request, statement or other document that is not a process of the
court may be effected by delivery by hand to the address for service given in the sum-
mons or appearance to defend, as the case may be, or by sending it by registered post
to the postal address given. It is provided in HCR 4A(1) service of subsequent notices,
requests, statement or other documents, not falling under HCR 4(1)(a), may be effected
by way of facsimile or electronic mail to the facsimile address or electronic mail ad-
dress given in the summons or notice of intention to defend, as the case may be.19

11.2.1.4 Discretion of the court

The court has a judicial discretion in respect of service. If the court is of the opinion that
service was void or defective, the court may refuse to accept service and order the pro-
cess to be served again. The court may postpone the matter for the purpose of
improved service or for an amendment or improvement of the sheriff’s return of
service.20

11.2.2 Service in Magistrates’ Courts

In the Regional and District Magistrates’ Courts, service by the sheriff is regulated in
terms of MCR 8 and MCR 9. Service in the Magistrates’ Courts has been aligned with
and is similar in most respects to that in the High Court. However, note should be
taken of section 107 of the Magistrates’ Courts Act which makes it a criminal offence to
obstruct a sheriff in the execution of his or her duties, to dispose of goods attached by
the sheriff, to make a false declaration, to fail or refuse to point out certain property or
to refuse or neglect to deliver the title deeds of immovable property.

11.2.2.1 Time of service

As a general rule, process, notices or other documents are not served on Sundays or
public holidays.21 This prohibition does not apply to interdicts, warrants of arrest and
warrants of attachment of property under section 30bis of the Magistrates’ Courts Act,
all of which may be executed on any day at any hour and at any place.22 MCR 9(2)(b)
follow the High Court to execute between 07h00 to 19h00.

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19 Part 2 of Chapter III of the Electronic Communications and Transactions Act 25 of 2002 is applic-
able to service by facsimile or electronic mail.
20 See HCR 4(10). No such far-reaching discretion is conferred upon magistrates as appears from
the proviso to MCR 9(3), which confers upon the court or the clerk of the court a discretion only in
respect of service effected in certain of the specific ways prescribed in MCR 9(3).
21 See MCR 9(2)(a).
22 See MCR 9(2)(b).

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11.2.2.2 Manner of service

MCR 9(3) provides that service of process in the Magistrates’ Courts is effected by
delivery of a copy in one of the following ways:23
(a) Personal service: by delivery to the defendant personally or to the defendant’s
duly authorised agent, provided that, when the defendant is a minor or legally
incompetent, service is effected on the guardian, tutor or curator of that minor or
person under disability.
(b) Residence or business: by delivery at the residence or place of business of the
defendant, guardian, tutor, curator or the like. The copy may be left with a person
who:
(i) is apparently not younger than 16 years of age;
(ii) apparently resides or is employed at the premises.24
(c) Place of employment: by leaving a copy of the process at the place of employ-
ment of the defendant, guardian, tutor, curator or the like. Delivery can be effected
to a person:
(i) apparently not younger than 16 years of age;
(ii) apparently in a position of authority over the defendant or, in the absence of
such a person in authority, apparently not younger than 16 years of age and
apparently in charge at the defendant’s place of employment.
(d) Domicilium citandi: where a person has chosen a domicilium citandi by delivering
the process or leaving a copy of it at that person’s chosen domicilium.
(e) Corporation or company: by delivery to a responsible employee of the corporation
or company at its registered office or principal place of business within the court’s
jurisdiction. If no employee is willing to accept service, copy is affixed to the main
door of the office or place of business, or in any manner provided by law.
(f) Registered post: delivery by registered post where the plaintiff or plaintiff’s author-
ised agent has given written instructions to the sheriff to serve the process in that
manner. However, a debt counsellor who makes a referral to court in terms of sec-
tion 86(7)(c) or (8)(b) of the National Credit Act25 may cause the referral to be
served by registered post or by hand.
(g) Minister, Deputy Minister or Provincial Premier: by delivery at the office of the State
Attorney in Pretoria or at a branch office of the State Attorney in the area of juris-
diction of the court out of which the process is issued.
(h) Agent: by delivery to any agent or attorney who is duly authorised in writing to
accept service on behalf of the person on whom service is to be effected in any
applicable manner prescribed in MCR 9.
(i) Local authority or statutory body: by delivery to the town clerk or assistant town
clerk or mayor of the local authority or to the secretary or similar officer or member
of the board or committee of such body or in any manner provided by law.

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23 Van Loggerenberg DE Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South
Africa 10th edn (Juta & Co, 2012) (Jones & Buckle) Vol. II at 9-1–9-19.
24 By contrast, service in the High Court must be on a person ‘apparently in charge of the premises’.
25 Act 34 of 2005 s 168.

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 Fundamental Principles of Civil Procedure

(j) Person already represented: where a person to be served with a document initiat-
ing application proceedings is already represented by an attorney of record, that
document may be served on the attorney.
(k) Service on two or more persons: when two or more persons are to be served with
the same process, service shall be effected on each except:
(i) in the case of a partnership, when service may be effected by delivery at the
office or place of business of the partnership or, in the absence thereof, by
service on any member of the partnership in any manner prescribed by
MCR 9;
(ii) in the case of two or more persons sued in their capacity as trustees of an
insolvent estate, liquidators of a company, executors, curators or guardians,
when service may be effected by delivery to any one of them in any manner
prescribed by MCR 9;
(iii) in the case of a syndicate, unincorporated company, club, society, church,
public institution or public body, when service may be effected by delivery at
the local office or place of business of the body or, in the absence thereof, by
service on the chairperson or secretary or similar officer of that body in any
manner prescribed in MCR 9.
It is important to note that the proviso to MCR 9(3) states that in the event of service in
the manner prescribed in MCR 9(3)(b), (c), (e) or (g), the sheriff must indicate in the
return of service:
(a) the name of the person on whom service was delivered;
(b) the capacity in which that person stands in relation to the person, corporation,
company, body corporate or institution affected by the process of court.
In the event of service in the manner prescribed in MCR 9(3)(b), (c), (d) or (f), the court
may treat such service as invalid when there is reason to doubt that the served pro-
cess has come to the actual knowledge of the person on whom it was supposed to be
served and in the absence of satisfactory evidence.
Further, subject to MCR 9(9), service of any process through which a divorce action is
instituted shall be effected by the sheriff on the defendant personally.
When the defendant’s residence or place of business is kept closed and the sheriff is
prevented from effecting service, affixing a copy of the process to the outer or prin-
cipal door or security gate or post box at the premises suffices.26
When service of process may be effected by registered post, such service is effected
by the sheriff placing a copy of the process in an envelope, addressing and posting it
by pre-paid registered letter to the address of the party to be served and by request-
ing (at the time of registration) acknowledgement by the addressee of receipt of the
envelope, as provided in regulation 44(5).
In Magistrates’ Courts, service of a notice, request, statement or other document that
is not a process of the court, may be effected by delivery by hand to the address for
service given in the summons or appearance to defend, as the case may be, or by

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26 See MCR 9(5).

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sending it by registered post to the postal address given. It is provided, however, that,
subject to MCR 5 and MCR 13,27 service of such notice, request, statement or other
document may be effected by sending it by facsimile or electronic mail to the facsimile
address or electronic mail address given in the summons or notice of intention to
defend, as the case may be.28
When such service is effected by registered post in terms of MCR 9(9), it shall, ‘until
the contrary appears, be deemed to have been effected at 10 o’clock in the forenoon
on the fourth day after the postmarked date upon the receipt for registration’.29

11.3 Service in matters relating to insolvency

Apart from the general modes of service, specific pieces of legislation may prescribe
additional rules relating to the service of process, for example in matters relating to
insolvency. The rules relating to service of an application for the sequestration of a
natural person and an application for the liquidation of a company or a close corpor-
ation are mentioned.

11.3.1 Application for sequestration

Personal service on the insolvent is required in sequestration proceedings. This is in
accordance with the general rule that personal service is required in matters affecting
status. However, in addition to personal service on the insolvent, service on a number
of other persons or agencies is required. A copy of the sequestration application and
every affidavit in support thereof must be served on the Master of the High Court or an
officer in the public service designated by the Master.30
The Insolvency Act was amended to provide for service on a number of other persons
or agencies.31 Section 9(4A)(a) now provides that an applicant must furnish a copy of
the application to:
(a) every registered trade union that, as far as the petitioner can reasonably ascer-
tain, represents any of the debtor’s employees;
(b) the employees themselves or:
(i) by affixing a copy of the petition to a notice board to which the petitioner and
the employees have access inside the debtor’s premises; or
(ii) the front gate of the premises, where applicable, if there is no access to the
premises by the petitioner and the employees; failing which
(iii) the front door of the premises from which the debtor conducted any business
at the time of the presentation of the petition;

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27 See ch. 10 para. 10.5; ch. 12 para. 12.2.

28 In terms of MCR 9(9)(c)(ii), Ch. III Part 2 of the Electronic Communications and Transactions Act 25
of 2002 is applicable to service by facsimile or electronic mail.
29 MCR 9(9)(c)(i).
30 Insolvency Act 24 of 1936 s 9(4). The purpose of this provision is to allow the Master to furnish the
court with a report setting out any facts which would appear to justify postponing the hearing or
dismissing the application for sequestration.
31 By means of s 9(4A), inserted by s 2 of the Insolvency Second Amendment Act 69 of 2002.

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(c) the South African Revenue Service; and

(d) the debtor, unless the court, at its discretion, dispenses with the furnishing of a
copy where the court is satisfied that it would be in the interest of the debtor or of
the creditors to dispense with it.
The applicant must, before or during the hearing, file an affidavit by the person who
furnished a copy of the application setting out the manner in which paragraph the
provisions of section 9(4A)(a) was complied with.32 This is often called a service affidavit.

11.3.2 Application for liquidation

An applications for the liquidation of a solvent company is regulated by the Companies
Act of 2008,33 while an application for the liquidation of an insolvent company is still
regulated by Chapter XIV of the Companies Act of 1973.34 As a general rule, an appli-
cation for liquidation is served on the company in the ordinary course in terms of
HCR 4. A copy of the liquidation application and every affidavit in support of it must be
served on the Master of the High Court or on an officer in the public service designat-
ed by the Master.35 The Companies Act of 1973 provides for service on a number of
other persons or agencies.36 Section 346(4A) is cast in terms identical to those of
section 9(4A) of the Insolvency Act.37 The same provisions relating to service apply to
the liquidation of close corporations.38

11.4 Service that cannot be effected in the prescribed manner

Sometimes service cannot take place in the prescribed manner as set out above. This
may occur in two circumstances:
(a) the person on whom service must be effected cannot be traced although the per-
son is physically present within South Africa;39 or
(b) the person is no longer physically present in South Africa, irrespective of whether
or not the person’s foreign address is known to the plaintiff.40
In these circumstances it will be necessary to seek leave of the court to serve in a
manner different to the normal mode of service as set out in the rules above. The court
will prescribe a different manner of service known as substituted service or a form of
substituted service called edictal citation. The procedure for substituted service and
edictal citation in the High Court is similar to that in Magistrates’ Courts.41
________________________

32 S 9(4A)(b).
33 Companies Act 71 of 2008 ss 78–83.
34 S 224 of the 2008 Companies Act repeals the Companies Act 61 of 1973 but the winding up of
insolvent companies is still regulated by ss 343–345 of the 1973 Act.
35 Companies Act 61 of 1973 s 346(4).
36 S 346(4A) was inserted by s 7 of the Insolvency Second Amendment Act 69 of 2002.
37 See para. 11.3.1.
38 See s 66 of the Close Corporations Act 69 of 1984 which provides that the provisions of the Com-
panies Act relating to winding-up apply to the winding-up of close corporations.
39 See HCR 4(2); MCR 9(12).
40 See HCR 5(1). See also s 30bis of the Magistrates’ Courts Act and MCR 9(12).
41 See HCR 5; MCR 10. CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens 2012 (5)
SA 604 (KZD), the court allowed the plaintiff to serve a notice of set-down and pre-trial directions
by way of substituted service in the form of a social media Facebook message. However, the use
of social media as a mode of substituted service is exceptional and to be decided on the merits of
a case-by-case analysis.

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According to Herbstein & Van Winsen the purpose of substituted service and edictal
citation is to provide the machinery for the institution and prosecution of proceedings
against those in respect of whom the court concerned has jurisdiction, but on whom
the process of the court cannot be served because they are outside the jurisdiction of
the court.42
It is important to note that in the above two circumstances, it will be necessary not only
to obtain the court’s direction as to the manner or mode of service, but also the leave
of the court to institute the substituted proceedings.43 Substituted service may not be
claimed as a right but is subject to the court’s discretion and will only succeed where
the court is satisfied that:
(a) the applicant has a prima facie cause of action;
(b) the court has jurisdiction to hear the matter;
(c) the application is necessary in order to allow the applicant to proceed with the
claim.
Once the court’s permission is obtained and the court has granted an order indicating
the relevant mode or manner of service, the process will be served on the person in
accordance with the court’s order. Section 24(a) of the Superior Courts Act allows the
defendant a much longer period than usual in which to enter an appearance to defend
where a summons is served outside the area of jurisdiction of the court in which it is
issued.44

11.4.1 Substituted service in South Africa

Substituted service is used only when a litigant intends to commence proceedings
against a party whose physical whereabouts is unknown. For example, a plaintiff wishes
to sue her husband for divorce. The husband has left the communal home and, despite
various enquiries, his current address in South Africa is unknown to the plaintiff. The
plaintiff is aware only that the errant husband is somewhere in the province. In such a
case her attorney will, on her behalf, first apply for permission from the court to initiate
proceedings against the husband by serving a process of court in a manner not pre-
scribed by the rules, on the basis that the husband’s specific address within South
Africa is unknown, and therefore service cannot be effected in the normal manner.
In order to proceed, the plaintiff must persuade the court that there are reasonable
grounds for believing that the defendant is still somewhere in South Africa. In addition
to asking the court for a direction as to the mode or manner of service of the process,
the plaintiff will also ask for permission to bring the main proceedings. After the court
has granted such permission, the attorney must ensure that service is effected in the
manner authorised by the court. The court will also fix the time within which the

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42 Herbstein & Van Winsen Vol. I at 363–366 and 373–388.

43 Jones & Buckle Vol. II at 10-1–10-4. In the Magistrates’ Courts it is necessary to seek direction as
to the manner of service but not leave of the court to bring the main proceedings as such pro-
ceedings may be instituted as of right.
44 A defendant is allowed one month to enter an appearance where the summons is served more
than 150 km from the court out of which it is issued.

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defendant must enter an appearance to defend.45 When the defendant is believed to

be in South Africa but outside the jurisdiction of the court, at least two weeks must be
allowed for the entry of appearance to defend and one month when the defendant is
more than 150 kilometres away from the court.46

11.4.1.1 Contents of an application for substituted service

A proceeding in which a plaintiff seeks the leave of the court to effect substituted service
is brought by way of an ex parte application. The application for substituted service
will consist of a notice of motion signed by the applicant personally and addressed to
the registrar, and one or more supporting affidavits. The defendant is not cited
because his or her whereabouts is unknown, the very reason why the process cannot
be served on him or her in the normal manner.
The following must be described in the affidavit:47
(a) the nature and extent of the claim;
(b) the grounds on which the claim is based;
(c) the grounds on which the court has jurisdiction to entertain the claim;
(d) the suggested method of service that the court is required to authorise;
(e) the last-known whereabouts of the person to be served if such service is other
than personal service, what steps were taken or what enquiries were made to
determine the defendant’s whereabouts and the fact that such steps were unsuc-
cessful;
(f) the fact that there is a reasonable probability that the suggested method of ser-
vice will come to the knowledge of the defendant.
The court will then order a method of service that is most likely to cause the proceed-
ings to come to the notice of the defendant.48 For example, publication in one or more
newspapers, service by registered letter to the defendant’s last known address or next
of kin or legal representative or service ad valvas curiae (‘to the doors of the court’), or
even a combination of the above methods. At the subsequent hearing of the ex parte
application, there must be proper proof of service in compliance with the directions of
the court.49

11.4.2 Service by edictal citation outside South Africa

If the plaintiff wishes to effect service on a person no longer physically present within
the Republic, irrespective of whether or not the person’s foreign whereabouts is known,

________________________

45 HCR 5(2).
46 Superior Courts Act s 24(b).
47 See HCR 5(2). Note that although HCR 5 deals with applications to sue by way of edictal citation,
HCR 4(2), which deals with applications for substituted service where the defendant is thought to
be within South Africa but his or her exact whereabouts is unknown, states that the provisions of
HCR 5(2) apply mutatis mutandis.
48 Practice Manuals of the various divisions, which set out the format of the order issued by the
court, should be consulted. The relevant form in the Practice Manual of the Gauteng Division and
the Gauteng Local Division is Form Z.
49 Practice Manual for the NGHC and SGHC s CB para. 3.

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the court’s direction as to the relevant mode of service and the permission of the court
to initiate substituted proceedings must be obtained.50 In this circumstance a special
type of substituted service, or service by means of edictal citation, will be employed. In
order to initiate proceedings the plaintiff must first, by means of an ex parte appli-
cation, apply to the court for leave to sue by way of edictal citation. If the court grants
permission, the plaintiff will issue a citation (the equivalent of a summons), to which is
attached an intendit (the equivalent of a declaration or particulars of claim). Service of
the citation and intendit will then be effected in accordance with the direction of the
court and HCR 4(3) and (4).
The edictal citation procedure applies only to a process of court that initiates a legal
proceeding. When a person wants to obtain leave to effect service outside the Republic
of a document other than one whereby a proceeding is instituted, the procedure as set
out in HCR 5(3) must be used. For example, in an ex parte hearing it is obligatory for
the court to make a temporary order in the form of a rule nisi. Since the rule nisi is not a
document whereby proceedings are instituted, service of a rule nisi must be effected
in terms of HCR 5(3).
When the defendant is believed to be outside South Africa, a period of at least 21 days
must be allowed for entry of appearance to defend. It is important to note that sub-
stituted service in the form of an edictal citation procedure is unnecessary where the
defendant has appointed an address for service of process through a domicilium
clause in a contract or where the defendant has an agent within South Africa author-
ised to accept service of process on behalf of the defendant. However, service upon
an agent is not sufficient where the nature of the matter requires personal service on
the defendant, such as divorce matters or matters affecting status.

11.4.2.1 Contents of an application for edictal citation

The application for leave to sue by means of edictal citation consists of a notice of
motion to which is attached a supporting affidavit(s). It is necessary for the affidavit to
include, to the extent applicable, the same averments as would be contained in an
application for substituted service as set out in paragraph 11.4.1.1.

11.4.2.2 Magistrates’ Courts

MCR 9(10) read with MCR 10 (edictal citation and substituted service) are similar to
the procedures for substituted service and edictal citation set out in HCR 4 and
HCR 5.

11.4.3 Service of process in a foreign country

The procedure for service of process in a foreign country is set out in HCR 4(3)–(15)
and MCR 9(14)–(25).51 The procedure in the Magistrates’ Courts is similar to that in the
High Court.

________________________

50 Steinberg v Steinberg 1962 (4) SA 321 (E).

51 See ch. 22 para. 22.10 regarding execution of foreign judgments.

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11.5 The three different service procedures

11.6 Example in the electronic Precedents Pack

High Court Relevant text
Precedent
precedent number in textbook
PP – HC4 Return of service Ch. 11 para. 11.2

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