Bank blocked from default judgments by high court, pinning notice to doors, gates insufficient

The Western Cape High Court has made it clear that applicants must show proof of proper service of legal documents on interested parties and not merely get sheriffs to pin notices to doors or gates.

The court was dealing with an application by Nedbank, according to IOL,  which was seeking obtain default judgment against four vehicle owners who were behind in their payments on their vehicles.

The court turned down the applications as it found that there was no proof of proper service as the documents notifying the owners of court proceedings were affixed to either the doors or the gates of their domicilium addresses. A domicilium address is the physical address chosen by a party for the formal delivery of legal notices.

The court said affixing to a notice to a door or gate without demonstrating how it would reach the defendant did not meet the legal requirements.

In one matter where a defendant fell into arrears of more than R75,000 regarding the payment of his Volkswagen Tiguan, the summons was left on a door to a house believed to be that of the vehicle owner.

The other three cases were similar as the sheriff found no one home and left the legal documents either on a door or the gate to the premises.

The court found that this manner of service was not proper. Counsel for the bank had argued that the amended rule allows for service by leaving a copy at the domicilium and that service by affixing at the domicilium address complies with the rule for effective service.

The court remarked that prior to the amendment to the service rule, service of a legal document could be affected by delivering a copy to a person older than 16 at the chosen address.

Following the latter amendment, this rule was substituted by adding a provision that, provided no person is present at the address, the Sheriff may leave a copy at the address.

The court noted that although the amendment makes it discretionary on where the sheriff may leave a copy, it follows that it may not merely be abandoned.

“Some level of responsibility is required from the sheriff. Proper service envisages that the Sheriff officially delivers the process to the defendant in a clearly prescribed manner that ensures that the defendant is formally notified, understands the claim, and has a fair chance to respond to the claim before a default judgment is applied for by the plaintiff,” the court said.

The court said the rule does not make reference to service by simply “affixing” it to something at the property, and there is nothing to prove that the legal documents came to the attention of the defendants.

It turned down the bank's application for summary judgment and said nothing prevents the bank from seeking alternative service of the documents.