This is an application for rescission of judgment wherein Interactive Trading 115 CC (the “First Applicant”) and Barend Stephanus Schempers (the “Second Applicant”) (the “Applicants”) sought to rescind a judgment which was granted in default against them on 21 December 2017 and later varied on 05 June 2018. Both the main judgment and the variation order were granted in the absence of the Applicants.
To substantiate their application, the Applicants relied on rule 42(1)(a) of the Uniform Rules of Court which reads as follows:
“The court may, in addition to any other powers it may have, mero muto or upon the application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby.”
After finding that it was common cause that the Applicants were affected by the judgment, the court next looked to the question of whether there were grounds in casu as to why the judgment should be rescinded.
The Applicants submitted that they were never notified of the proceedings. Upon hearing both sides, it became apparent to the court that there was no “proper service” of the summons on the Applicants. To make matters worse, it became clear that the applicable sheriffs in the matter had not conducted themselves in an honest and diligent manner whilst carrying out their duties.
In the case of the First Applicant, the sheriff dealing with service affixed a copy of the summons to the gate of the former’s business premises. The return of service stated that ‘the premises remained locked and nobody was present’. The business in casu being a filling station, the court found the statement in the return to be questionable. The sheriff could have served the summons on the staff at the filling station, which operates on a 24-hour basis.
The return of service in the case of the Second Applicant stated, ‘moved from address – current address unknown’. Summons was therefore served on someone allegedly in control of the premises (the domicilium citandi et executandi). The Second Applicant opposed this and stated that he had not moved from this address and further that he did not know the person on whom process was allegedly served.
Counsel for the Respondents argued that service at a domicilium citandi et executandi meant that a party did not have to be served personally and that the sheriff could affix the summons to the gate. In light of all the above mentioned factors, however, it became definite to the court that the Applicants had not received notice of the proceedings, the Respondents conceded to this fact too.
The Second Applicant became aware of the judgment upon the writ of execution being served on him. He then called the sheriff’s offices to enquire on same and was told by the personnel at the offices that the Applicants were required to attend at the offices to arrange for settlement. This the court found also to indicate irregular dealings on the part of the sheriff who served the writ.
The Applicants were not in wilful default, they were just never served with summons. The court considered Fraind v Nothmann 1991 (3) SA 837 (W) at 839I and held that the judgment granted in their absence had to be rescinded and set aside as it was erroneously granted.
The court further frowned upon the manner in which the sheriffs dealt with the service, preparation of returns of service and the manner in which the sheriff who served the writ overstepped his mark in attempting to arrange for settlement between the parties. The court found that the sheriffs did not conduct themselves diligently or honestly in performing their duties to the court.
They did not discharge their duties but instead hindered the proper functioning of the justice system. The court reiterated that it should be able to rely on a return of service as correct upon mere presentation of same from a sheriff. The court ordered costs be borne by the Respondents.
This judgment reminds us of the importance of proper service of process and of general compliance with the rules of court. It further serves as a reminder that officers of the court are to remain honest and diligent in performing their duties and in their dealings with the court.
Written by Danmari Duguid and Phathu Ratshitanga