Firstrand Bank Limited t/a FNB Home Loans and Others, Ex Parte (25100/05) [2006] ZAGPHC 98; 2007 (3) SA 194 (W) (9 November 2006)

Firstrand Bank Limited t/a FNB Home Loans and Others, Ex Parte (25100/05) [2006] ZAGPHC 98; 2007 (3) SA 194 (W) (9 November 2006)

The court held that the second sentence of Rule 46(3) is imperative: service is effected upon posting a prepaid registered letter containing the notice to the address chosen or furnished by the addressee, or the actual postal address. Receipt of the notice is not required for service to be valid. This interpretation avoids uncertainty and practical difficulties for sheriffs and judgment creditors, as the date of posting is determinative for subsequent procedural steps, such as fixing a sale date. The court rejected the reasoning in Sowden v ABSA Bank, which required actual service, and endorsed the approach in Stand 734 Fairland CC v Boe Bank and Standard Bank v Bundu Te Litho. The court...

Citation
[2006] ZAGPHC 98
Parties
Applicant: Firstrand Bank Limited t/a FNB Home Loans (formerly First National Bank of Southern Africa Limited); Applicant: The Sheriff of Brakpan; Applicant: The Sheriff of Sandton; Applicant: The Association of Sheriffs
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
9 November 2006
Case Number
25100/05
Procedural Posture
Declaratory Application / Judgment
Outcome
Application granted. Declaratory order issued clarifying service under Rule 46(3).
Judges
LI Goldblatt, P Boruchowitz, M Tsoka
Legal Topics
Service of Process, Attachment of Immovable Property, Uniform Rules of Court, Registered Post Service
Civil Procedure Service of Process Attachment of Immovable Property Uniform Rules of Court Registered Post Service

Case Brief

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Parties

Firstrand Bank Limited t/a FNB Home Loans (formerly First National Bank of Southern Africa Limited)

Applicant

The Sheriff of Brakpan

Applicant

The Sheriff of Sandton

Applicant

The Association of Sheriffs

Applicant

Procedural Posture

Declaratory Application / Judgment

Legal Issues

  1. 1 When is service by a sheriff in terms of Rule 46(3) of the Uniform Rules of Court deemed effective for attachment of immovable property.
  2. 2 Does posting a registered letter constitute service even if the addressee does not receive it.
  3. 3 Can service of a notice under Rule 46(3) be effected in terms of Rule 4 without a court order.

Ratio Decidendi

The court held that the second sentence of Rule 46(3) is imperative: service is effected upon posting a prepaid registered letter containing the notice to the address chosen or furnished by the addressee, or the actual postal address. Receipt of the notice is not required for service to be valid. This interpretation avoids uncertainty and practical difficulties for sheriffs and judgment creditors, as the date of posting is determinative for subsequent procedural steps, such as fixing a sale date. The court rejected the reasoning in Sowden v ABSA Bank, which required actual service, and endorsed the approach in Stand 734 Fairland CC v Boe Bank and Standard Bank v Bundu Te Litho. The court...

Court Disposition

Application granted. Declaratory order issued clarifying service under Rule 46(3).

Orders

  • It is declared that service in terms of Rule 46(3) takes place upon posting by prepaid registered post of a letter containing the requisite notice to the address of the person intended to be served. Such address shall be either the address chosen or furnished by the addressee as such person’s address or the actual...
  • A notice in terms of Rule 46(3) cannot be served, in the absence of an appropriate order of court, in terms of Rule 4.