The High Court in Cape Town has found that the amended Rule 4(1)(a)(iv) of the Uniform Rules of Court does not automatically permit service of summons by simply affixing documents to a door or gate at a defendant’s chosen domicilium.
In four unopposed vehicle-finance matters brought by Nedbank Limited, the Court refused default judgments after finding that returns of service describing the process as “affixed” did not sufficiently demonstrate compliance with the rule’s requirement to “deliver” or “leave” a copy at the address. The decision emphasises that proper service – and a properly articulated return of service – remains a prerequisite to default judgment under Rule 31(5).
The judgment did not address the merits of the underlying credit agreements or the lawfulness of the bank’s debt recovery processes. Instead, it concerned the proper interpretation of the amended service provisions and the standard required before default judgment may be granted.
Background to the four matters
Each matter arose from an instalment sale agreement relating to a motor vehicle. In each case, the defendants had allegedly fallen into arrears. The bank issued the required notices in terms of the National Credit Act, including section 129 notices, and subsequently issued summons.
The difficulty arose at the stage of service of summons.
In several instances, the sheriff recorded that the premises at the defendants’ chosen domicilium addresses were locked or that the defendants were not present. The returns of service stated that copies of the summons and accompanying documents were “affixed” to a door, gate, or post box at the domicilium address. In some matters, the sheriff recorded that the defendant was unknown at the address or that attempts to gain access had failed.
When Nedbank applied for default judgment under Rule 31(5), the Registrars queried whether service effected by affixing complied with the amended Rule 4(1)(a)(iv). In each matter, the Registrar declined to grant default judgment and referred the case for hearing before a judge.
The consolidated hearing was convened in part to provide clarity on the interpretation of the amended rule.
The amended Rule 4(1)(a)(iv)
The version of Rule 4(1)(a)(iv) in force since 27 December 2024 provides that where a defendant has chosen a domicilium citandi et executandi, service may be effected by delivering a copy of the process to a person apparently not less than 16 years of age at the domicilium. It further provides that if no person is present at the domicilium, the sheriff may leave a copy at the address.
The question before the Court was whether service described as “affixing” a copy of the summons to a door or gate falls within the meaning of “leaving” a copy at the domicilium for purposes of the amended sub-rule.
Counsel for the bank submitted that it does. The Court did not accept that this follows automatically from the wording.
Judge Babalwa Mantame observed that the amended sub-paragraph (iv) refers to “delivering” or “leaving” a copy. It does not refer to “affixing”. The judgment notes that the term “affixing” appears elsewhere in Rule 4 in other contexts. In the Court’s view, it could not simply be read into sub-rule (iv) where the language used is different.
The Court emphasised that the amendment introduced a fallback mechanism where no person is present at the domicilium. However, it held that “leaving” a copy does not mean abandoning it. The manner in which the document is left must still accord with the purpose of service.
The purpose of service
The judgment situates the interpretive question within the broader jurisprudence on domicilium service.
Historically, the courts accepted that service at a chosen domicilium would be valid even if the defendant did not in fact receive the document. The principle was that a party who selects a domicilium bears the risk of non-receipt at that address.
Judge Mantame noted, however, that this approach has been qualified over time. She referred to earlier decisions recognising that the mere existence of a domicilium clause does not preclude service by other prescribed methods where appropriate, and that the manner in which a document is delivered or left at a domicilium depends on the circumstances.
Judge Mantame cited authority stating that delivery at a domicilium presupposes delivery in any manner by which, in the ordinary course, the notice would come to the attention of and be received by the intended recipient. Although actual receipt is not required, the method employed must be one contemplated by the Rules and reasonably capable of notifying the defendant.
In discussing this line of authority, Judge Mantame referred to cases recognising a tension between formal compliance with Rule 4 and the broader concern that service should be effective. Compliance with one of the prescribed methods remains necessary. However, the purpose of service is to notify the defendant of the nature and exigency of the proceedings and to provide proof to the court that such notification has occurred in the manner prescribed by law.
Against that background, Judge Mantame concluded that simply stating in a return of service that a summons was “affixed” to a door or gate does not, without further explanation, demonstrate compliance with sub-rule (iv).
The return of service
A significant feature of the judgment concerns the role and content of the sheriff’s return.
Section 43 of the Superior Courts Act provides that the return of the sheriff is prima facie evidence of what it states. However, the court observed that returns which merely record that a document was “affixed” – without detailing the circumstances, the exact location, and the reasons for adopting that method – provide limited assistance in determining whether proper service was effected.
The judgment states that service is not a “tick box exercise” preceding default judgment. Its purpose is to implicate the defendant in the proceedings by ensuring that he or she is formally notified and afforded an opportunity to respond.
Where premises were found locked or the defendant was reportedly no longer resident at the address, the court noted that the Uniform Rules provide for alternative methods of service, including applications for substituted service where appropriate.
The Court indicated that if service is effected in terms of Rule 4(1)(a)(iv), the return should explicitly detail the location, time, method and rationale for the manner in which service was carried out. A cryptic reference to affixing, without more, was insufficient to establish compliance with the amended rule.
The Registrar’s discretion
The matters reached open court because Registrars declined to grant default judgment and referred the cases for judicial determination.
In terms of section 23 of the Superior Courts Act and Rule 31(5), a Registrar may grant default judgment where a defendant has failed to defend the action after proper service of summons. Where doubt exists, the matter must be referred to court.
The judgment records that Registrars had expressed uncertainty as to whether service by affixing complied with the amended rule. Justice Mantame held that, in the circumstances, the registrars were justified in referring the matters to open court.
The Court reiterated that default judgment may be granted only where proper service has been demonstrated.
Outcome
Having considered the wording of the amended rule, the authorities on domicilium service and the content of the returns of service in each matter, the court concluded that the plaintiffs had not made out a proper case regarding service under Rule 4(1)(a)(iv).
Default judgment was refused in all four matters. No order as to costs was made.
The judgment records that nothing prevents the plaintiff from effecting service in a manner that complies with the rule or from pursuing alternative forms of service as provided for in the Uniform Rules.
