How are legal documents supposed to be served, and what is regarded as invalid service?

Purpose of service of legal documents:

The fundamental rule with regards to service is that the court must be satisfied that the defendant or respondent has received these documents and is therefore aware that legal proceedings are being brought against him/her. Erasmus stated in his book, Superior Court Practice: “It is a cornerstone of our legal system that a person is entitled to notice of legal proceedings against him”.

Service on person’s residence or place of business:

The ideal would be that the service of all legal documents should be effected via personal service. However, due to the fact that people on the wrong side of the law are often very evasive, service can be effected on any person above the age of 16 years, who is apparently resident at the residence of the person to be served/employed at the place of business of the person to be served.[1]

Service on a domicilium address:

A domicilium address is a regular term of the most modern contracts and means that the contracting party chooses an address where all legal notices and documents may be served, by delivering or leaving the document to be served at such address.[2] This could be a potentially dangerous term, especially with regards to contracts which are being renewed annually, but of which the content is not necessarily updated as regularly as it should be. It often leads to documents being served at an address where a person is no longer resident or carrying on business, and where the person has neglected to update such information in the contracts which he/she concluded.

Service of legal documents on a company/closed corporation:

Service of legal documents in which a company or closed corporation are to be served, are effected by serving such documentation at the company/closed corporation’s registered address or principle place of business.[3] Because a company/closed corporation’s principle place of business often differs from their registered address, this could also lead to a company/closed corporation changing the place at which it conducts business, but neglecting to change their registered address, causing legal documents served at the registered address not coming under its attention.

Invalid Service

Rule 9(3) of the Magistrate’s Court Rules determines that a court may, if there is reason to doubt whether the process served has come to the actual knowledge of the person to be served, treat such service as invalid. Thus if a judgment was granted against a defendant on whom there did not occur proper service of the summons as explained above, it would be a ground for rescission of such judgment.

Preferable method of service:

Personal service should be used whenever possible, and the other methods of service provided for in the rules should only be used where the Defendant is elusive or untraceable. In O’Donoghue v Human[4]  the following is stated: “what the Court requires in regard to service of a summons is that it be served in the best possible manner likely to bring the summons to the attention of the defendant. Rule 4 appears to contemplate that, if possible, service should be personal, and that only if the defendant or respondent cannot after diligent search be found may some other authorised form of service be adopted. The whole purpose is to take the most effective steps possible to ensure that the summons comes to the Defendant’s notice.”

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference List:

• Magistrate’s Court Rules
• O’Donoghue v Human 1969 (4) SA 35 (E)
• [1] Rule 9(a) – (c) of the Magistrate’s Courts Rules
• [2] Rule 9(d) of the Magistrate’s Court Rules
• [3] Rule 9(e) of the Magistrate’s Court Rules
• [4] 1969 (4) SA 35 (E) par. 4

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A summons is a document that informs a defendant that he or she is being sued and asserts the jurisdiction of the court to hear and determine the case. A summons can be served for many reasons which include divorce proceedings, traffic fines, outstanding fees, etc.

A simple summons sets out very briefly the details of the case. A combined summons does not set out the details or reasons as to why the action is being instituted, and such details can be found in the particulars of claim. It is important to take notice of the fine print on the summons. This is where you will find the information regarding when and where you should file your Notice of Intention to Defend, should you wish to defend the matter. An attorney usually drafts the notice and files it at court, however, it is not uncommon for people to defend such actions themselves. If you wish to defend the matter yourself it is important to serve it on the opposing attorneys (these details are on the summons) and file it at court.

With regards to any normal summons the time period to file the Notice of Intention to Defend is 10 (ten) days and 20 (twenty) days to file the opposing papers. If the defendant resides or is located in a 160 km radius outside the court, the defendant then has 21 (twenty one) days to file their Notice of Intention to Defend and 20 (twenty) days to file their opposing papers.

Once the ten or twenty days have passed and no Notice of Intention to Defend has been filed, the attorneys will immediately apply for Default Judgement. This may result in a judgement against your name. Once a Judge/Magistrate has granted Default Judgement, a Warrant of Execution can be issued in order to attach property and/or money for the amount as stated on the summons. If the Sheriff finds that there is no property to attach in order to obtain the money, the attorneys will go ahead with a Section 65A (1) Application. This Application requires the debtor to present their income and expenses to the court and provide an amount which can be paid off monthly in order to settle their debt.

A judgement will only be removed from your record once a rescission order is granted and/or proof is provided that the amount cited on the summons has been paid in full. If the amount has been paid in full, you can contact Transunion directly and get the judgement removed for free once proof of payment has been sent.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The post HOW IMPORTANT IS IT TO READ LEGAL PLEADINGS AND/OR NOTICES? appeared first on Schnetler's Inc.

However, what many of them do not know, is that it is most likely due to their own negligence that they have these judgments against them.

A summons is a document that informs a defendant that he or she is being sued and asserts the jurisdiction of the court to hear and determine the case. A summons can be served for many reasons which include divorce proceedings, traffic fines, outstanding fees, etc.

A simple summons sets out very briefly the details of the case. A combined summons does not set out the details or reasons as to why the action is being instituted, and such details can be found in the particulars of claim. It is important to take notice of the fine print on the summons. This is where you will find the information regarding when and where you should file your Notice of Intention to Defend, should you wish to defend the matter. An attorney usually drafts the notice and files it at court, however, it is not uncommon for people to defend such actions themselves. If you wish to defend the matter yourself it is important to serve it on the opposing attorneys (these details are on the summons) and file it at court.

With regards to any normal summons the time period to file the Notice of Intention to Defend is 10 (ten) days and 20 (twenty) days to file the opposing papers. If the defendant resides or is located in a 160 km radius outside the court, the defendant then has 21 (twenty one) days to file their Notice of Intention to Defend and 20 (twenty) days to file their opposing papers.

Once the ten or twenty days have passed and no Notice of Intention to Defend has been filed, the attorneys will immediately apply for Default Judgment. This may result in a judgment against your name. Once a Judge/Magistrate has granted Default Judgment, a Warrant of Execution can be issued in order to attach property and/or money for the amount as stated on the summons. If the Sheriff finds that there is no property to attach in order to obtain the money, the attorneys will go ahead with a Section 65A (1) Application. This Application requires the debtor to present their income and expenses to the court and provide an amount which can be paid off monthly in order to settle their debt.

A judgment will only be removed from your record once a rescission order is granted and/or proof is provided that the amount cited on the summons has been paid in full. If the amount has been paid in full, you can contact Transunion directly and get the judgment removed for free once proof of payment has been sent.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

The post HOW IMPORTANT IS IT TO READ LEGAL PLEADINGS AND/OR NOTICES? appeared first on Schnetler's Inc.