Sheriff of Tembisa Midrand & Kempton Park North v Matsa; In Re: Nedbank Limited v Mathabathe and Others (74872/2009) [2016] ZAGPPHC 678 (8 August 2016)
The court held that the sheriff's return of non-service cannot be translated into a valid service. The rules require proper service, and mere knowledge of the proceedings by the respondent does not satisfy this requirement. The applicant is therefore ordered to effect proper service upon the purchaser respondent in...
Source-derived case information.
- Citation
- [2016] ZAGPPHC 678
- Parties
- Applicant: Sheriff of Tembisa Midrand & Kempton Park North; Respondent: Madepe Lucas Matsa; Plaintiff: Nedbank Limited; Defendant: Thomas Mathabathe; Defendant: TWM Transport Services CC; Defendant: Silteam Investments CC
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 74872/2009
- Procedural Posture
- Civil Application / Rule 46 11a Ruling
- Outcome
- Application for recognition of non-service as valid service is refused. Applicant is ordered to effect proper service.
- Judges
- N V Khumalo
- Legal Topics
- Service of Process, Return of Non Service, Rule 46 Application
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheriff of Tembisa Midrand & Kempton Park North
Applicant
Madepe Lucas Matsa
Respondent
Nedbank Limited
Plaintiff
Thomas Mathabathe
Defendant
TWM Transport Services CC
Defendant
Silteam Investments CC
Defendant
Procedural Posture
Civil Application / Rule 46 11a Ruling
Legal Issues
- 1 Whether mere knowledge of the issue of summons or initiation of motion proceedings constitutes proper service.
- 2 Whether the sheriff's return of non-service can be regarded as service in terms of the rules.
Ratio Decidendi
The court held that the sheriff's return of non-service cannot be translated into a valid service. The rules require proper service, and mere knowledge of the proceedings by the respondent does not satisfy this requirement. The applicant is therefore ordered to effect proper service upon the purchaser respondent in accordance with the prescribed rules.
Court Disposition
Application for recognition of non-service as valid service is refused. Applicant is ordered to effect proper service.
Orders
- The applicant is ordered to effect proper service upon the purchaser respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG, PRETORIA
CASE NO: 7487212009
8/8/2016
Reportable: No
Of interest to other judges: No
Revised.
In the matter between:
SHERIFF OF TEMBISA MIDRAND &
KEMPTON PARK NORTH Applicant
And
MADEPE LUCAS MATSA Purchaser/Respondent
In the matter:
NEDBANK LIMITED Plaintiff
THOMAS MATHABATHE 1st Defendant
TWM TRANSPORT SERVICES CC 2nd Defendant
SILTEAM INVESTMENTS CC 3rd Defendant
RULE 46 (11A) RULING
KHUMALO J
[1] The sheriff has issued a return of non-service, which cannot be translated to a service (see Supporting Affidavit by Soretha De Bruin). In an action mere knowledge of issue of a summons or of initiation of motion proceedings does not constitute service and cannot relieve a Plaintiff from the obligation to follow the prescribed rules; see First National Bank of S A Ltd v Ganyesa Bottle Store 1998 (4) SA 565 N at 568 B-C.
[2] The Applicant is ordered to effect proper service upon the Purchaser Respondent.
______________________________
N V KHUMALO
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
SORETHA DU BRUIN
C/O VDT ATTORNEYS INC
Ref Soretha de Bruinp/B30/267
012 452 1300