Hamze Trading – which had a default judgment against it – has succeeded in getting the judgment overturned, because the Sheriff of the Court had posted the summons on a postbox at the entrance of a complex given as the domicilium address of the company.

A Pretoria News report says the company turned to the Gauteng High Court (Johannesburg) as it only got wind of the judgment against it months after it was handed down.

The judgment stemmed from a business deal which went sour between it and a company called Alf’s Tippers.

Hamze said the sheriff should have made another plan when he arrived at the address to serve the summons and found no one there. Thus, it asked for the rescission of the judgment granted by default in the respondent’s favour in October 2022.

The court was told the sheriff served the summons on the applicant at its registered office – a complex in Kimberley.

Four months later, the sheriff again served a notice of set-down for the case to be heard – yet again fixing the notice to the post box.

In both cases, having made a diligent search, the sheriff decided there was no other means of effecting service and affixed the documents to the post box of the unit of the applicant.

As was borne out by a picture handed to court, the post boxes are located outside the main gate of the complex in a covered space past which cars entering the complex would have to drive.

Acting Judge JJ Meiring said it was a fundamental principle of our legal system that respondents are entitled to get notice of legal proceedings against them.

The purpose of a summons or notice of motion is to implicate or involve a defendant or respondent in a suit.

According to the Pretoria News report, Meiring said it was unfortunate that the applicant chose a registered office that it must have known would make service of documents by the sheriff very difficult, if not impossible.

Yet, it was not the court’s role to punish the applicant for that decision.

‘It is also unfortunate that the sheriff did no more than affix the summons and the notice of set-down to the post box in question.’

The court had no way of knowing whether at times the entrance where the post boxes are located, becomes a wind tunnel in which documents, however sturdily affixed, might be swept away.

‘While the sheriff says there was no other means of effecting service, had he done more, by also depositing a copy in the post box itself or by handing it to a security guard at the entrance of the complex, I might have been more sanguine on the effectiveness of the service,’ the judge said in finding that the service was not effective in terms of the law.

Full Pretoria News report in The Star

Judgment