Motloung and Another v Sheriff Pretoria East and Others (13249/2014) [2018] ZAGPPHC 664; 2019 (3) SA 228 (GP) (5 September 2018)

Motloung and Another v Sheriff Pretoria East and Others (13249/2014) [2018] ZAGPPHC 664; 2019 (3) SA 228 (GP) (5 September 2018)

The court held that the Combined Summons handed to the sheriff for service was not signed by the Registrar as required by Rule 17(3) of the Uniform Rules of Court. This omission rendered the summons a nullity, meaning it did not constitute a valid court process and could not be served by the sheriff. The sheriff was not negligent in refusing to serve the summons, as he was acting in accordance with the law and the Code of Conduct for Sheriffs. Service of a null summons does not interrupt prescription, and the plaintiffs' claim against the defendant therefore did not disclose a cause of action. The special plea was upheld and the plaintiffs' action dismissed with costs.

Citation
[2018] ZAGPPHC 664
Parties
Plaintiff: Jone J Motloung; Plaintiff: Mosele M Moloi; Defendant: Sheriff Pretoria East; Third Party: Steinmann Attorneys; Third Party: CJ Van Rensburg Attorneys
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 September 2018
Case Number
13249/2014
Procedural Posture
Civil Trial / Special Plea Separated and Determined Before Merits
Outcome
Plaintiffs' action dismissed with costs; defendant's special plea upheld.
Judges
S.A.M Baqwa
Legal Topics
Nullity of Summons, Prescription, Sheriffs Act, Uniform Rules of Court, Return of Service
Civil Procedure Delict Nullity of Summons Prescription Sheriffs Act Uniform Rules of Court Return of Service

Case Brief

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Parties

Jone J Motloung

Plaintiff

Mosele M Moloi

Plaintiff

Sheriff Pretoria East

Defendant

Steinmann Attorneys

Third Party

CJ Van Rensburg Attorneys

Third Party

Procedural Posture

Civil Trial / Special Plea Separated and Determined Before Merits

Legal Issues

  1. 1 Whether the sheriff is liable for damages for failing to serve a summons not signed by the Registrar.
  2. 2 Whether the absence of the Registrar's signature renders the summons a nullity.
  3. 3 Whether service of a null summons interrupts prescription.

Ratio Decidendi

The court held that the Combined Summons handed to the sheriff for service was not signed by the Registrar as required by Rule 17(3) of the Uniform Rules of Court. This omission rendered the summons a nullity, meaning it did not constitute a valid court process and could not be served by the sheriff. The sheriff was not negligent in refusing to serve the summons, as he was acting in accordance with the law and the Code of Conduct for Sheriffs. Service of a null summons does not interrupt prescription, and the plaintiffs' claim against the defendant therefore did not disclose a cause of action. The special plea was upheld and the plaintiffs' action dismissed with costs.

Court Disposition

Plaintiffs' action dismissed with costs; defendant's special plea upheld.

Orders

  • The defendant's special plea is upheld.
  • The plaintiffs' action is dismissed with costs.