Motloung and Another v The Sheriff, Pretoria East and Others (1394/2018) [2020] ZASCA 25; 2020 (5) SA 123 (SCA) (26 March 2020)

Motloung and Another v The Sheriff, Pretoria East and Others (1394/2018) [2020] ZASCA 25; 2020 (5) SA 123 (SCA) (26 March 2020)

The Supreme Court of Appeal held that the absence of the registrar's signature on a summons, while a breach of a peremptory provision in rule 17(3)(c) of the Uniform Rules of Court, does not render the summons a nullity. The rule distinguishes between issuing and signing a summons; only the failure to issue is a nullity, whereas failure to sign is a condonable irregularity. The court found that the summons in question had been issued, stamped, and allocated a case number by the registrar, and thus constituted valid court process. The breach was susceptible to condonation under Uniform Rule 27(3). The respondent, as sheriff, was not entitled to refuse service based on his own assessment of...

Citation
[2020] ZASCA 25
Parties
Appellant: Jone John Motloung; Appellant: Mosele Merriam Moloi; Respondent: The Sheriff, Pretoria East; Third Party: Steinmann Attorneys; Third Party: CJ van Rensburg Attorneys
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 March 2020
Case Number
1394/2018
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal upheld; order of the high court set aside and replaced.
Judges
Saldulker, Swain, Molemela, Gorven, Eksteen
Legal Topics
Uniform Rules of Court, Condonation of Irregularities, Nullity Vs Irregularity, Summons Signature Requirement
Civil Procedure Uniform Rules of Court Condonation of Irregularities Nullity Vs Irregularity Summons Signature Requirement

Case Brief

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Parties

Jone John Motloung

Appellant

Mosele Merriam Moloi

Appellant

The Sheriff, Pretoria East

Respondent

Steinmann Attorneys

Third Party

CJ van Rensburg Attorneys

Third Party

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Is a summons not signed by the registrar a nullity or a condonable irregularity under Uniform Rule 27(3)?
  2. 2 Does the absence of the registrar's signature on a summons preclude its service and the initiation of legal proceedings?
  3. 3 Should the breach of the peremptory requirement in rule 17(3)(c) be visited with nullity or is it susceptible to condonation?

Ratio Decidendi

The Supreme Court of Appeal held that the absence of the registrar's signature on a summons, while a breach of a peremptory provision in rule 17(3)(c) of the Uniform Rules of Court, does not render the summons a nullity. The rule distinguishes between issuing and signing a summons; only the failure to issue is a nullity, whereas failure to sign is a condonable irregularity. The court found that the summons in question had been issued, stamped, and allocated a case number by the registrar, and thus constituted valid court process. The breach was susceptible to condonation under Uniform Rule 27(3). The respondent, as sheriff, was not entitled to refuse service based on his own assessment of...

Court Disposition

Appeal upheld; order of the high court set aside and replaced.

Orders

  • The appeal is upheld with costs, including the costs of two counsel where so employed.
  • The order of the high court is set aside and replaced by the following order: (a) The special plea is dismissed with costs. (b) The defendant is directed to pay the costs arising from the exception. (c) The costs in paragraphs (a) and (b) shall include the costs of two counsel where so employed.