Substituted Service - A Mechanism to Catch Those Evasive Debtors

Workshop17 Blog

In terms of the Uniform Rules of Court in South Africa, any court Application or Summons is required to be served personally on the person you intend to act against (i.e. the “Respondent” or “Defendant”).

This is, however, not always possible due to various circumstances such as the Respondent and Defendant’s location being unknown or alternatively when they intend to evade court proceedings. A Debtor for instance may be ducking and diving, in order to avoid paying his/her debt. If this is the case, the Applicant and/or Plaintiff is entitled to approach the Court for relief by making application for substituted Service on the Respondent or Defendant.


Why is service in the Respondent or the Defendant so important?

Service of legal process is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to the Respondent or Defendant, court or administrative body in an effort to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal.

The Courts will therefore not grant any order in favour of the Applican or Plaintiff, should there not be sufficient proof of service. Proceedings without this, will result in wasted legal costs for the Applicant of Plaintiff or worse, not being able to claim the amount owing.

What is Substituted Service?

Substituted Service is the Service of process upon a Defendant and/or Respondent in any manner, authorised by statute or Rule, other than Personal Service within the jurisdiction as by publication, by mailing a copy to his or her own address. Substituted Service is permitted where the Defendant and/or Respondent is believed to be in the Republic of South Africa. If the whereabouts of the Defendant and/or Respondent is unknown the Application of Edictal Citation is combined with that of Substituted Service.

Usually the Application is made prior to the issue of the Summons and/or Application if the whereabouts of the Defendant and/or Respondent is unknown or if they are residing outside the republic of South Africa. This is quite common in the institution of Divorce Proceedings.

What are the grounds for Substituted Service?

If the whereabouts of the Defendant and/or Respondent is unknown, the Applicant must show:

a) that all information about the whereabouts has been fully investigated,

b) must indicate the steps taken to ascertain the present whereabouts of the respondent and/or Defendant, and

c) that the method of service is likely to come to the attention of the Respondent and/or Defendant.

The Court may order any manner of service it deems appropriate for example publication in a newspaper, service on family members or friends, service by fax and even e-mail, is a proper care is made out. This list is however, not exhaustive and will depend on the facts of each use.

The Court must also determine the time period within which Notice of Intention to Defend or Notice of Opposition should be filed. This must be provided for in both the Application and Action process.



Can service of court process be served by way of social media?

CMC Woodworking Machinery Case:

According to Admitted Attorney, Conveyancer, an experienced editor for the De Rebus, namely, Kim Hawkey, an amendment to the Uniform Rules of Court has opened the doors to the service of court documents using modern electronic technology, including social media platforms.
This amendment was put to purpose in the recent case of CMC Woodworking Machinery the outcome of which represents a significant move towards embracing technological developments in the context of legal prescripts.

Steyn J stated:

“Changes in the technology of communication have increased exponentially and it is therefore, not unreasonable to expect the law to recognise such changes and accommodate [them].”

“Courts, however, have been somewhat hesitant to acknowledge and adapt to all the aforesaid changes and this should be understood in the context that courts adhere to established procedures in order to promote legal certainty and justice.”

Therefore, despite the court’s openness to new forms of media, Steyn J emphasised that each case must be decided on it’s own merits and must also take into account the type of document that is to be served. In terms of the onus for the granting of Substituted Service on social media or other electronic media, the court pointed out that the Applicant bore the onus of providing that

  • service via Facebook was warranted; and

  • there was a real likelihood that the Notice would be brought to the attention of the Respondent.

Conclusion

As clear from above, if the whereabouts of the Respondent and/or Defendant are unknown, the Applicant and/or Plaintiff can make Application for Substituted Service on the Respondent and/or Defendant and in certain circumstanced by way of court order.
No individual can duck and dive forever as legal process can now be served by social media as way of Court Order.

Contact an expert at SchoemanLaw to assist you today!

- Written by Shannon Vengadajellum

This article was written by SchoemanLaw, partners of Workshop17, for publication on the Workshop17 blog.