Pretoria - A man who fell in arrears with his car payment and was faced with a judgment against him to return the vehicle, succeeded in his bid to have the judgment overturned as the Sheriff had attached the original summons to the outer gate of his premises.
Nonhlanhla Gamede told the Gauteng High Court, Johannesburg, that he only became aware of the judgment against him about a year later, when the bank had removed the vehicle from his house. He asked his attorney how this could have happened.
It turned out that Wesbank had obtained a judgment against him in his absence. Gamede said he knew nothing about the summons issued against him, thus he did not defend the application.
The Sheriff of the court, who had to deliver the summons, at the time told the court via an affidavit that he did precisely that. He said in documents before the court that he had posted the summons “on an outer door” at Gamede’s house.
Gamede said this explanation did not make sense, since the outer door of the house was inaccessible from the street and could not be seen from the outside boundary gate.
The Sheriff’s office later sent a letter to explain that “an outer door” should have actually read “outer gate”. The Sheriff in question had meanwhile died and his office had to clear up the confusion. It did so by looking at the now deceased Sheriff’s job card, on which he had “OG” scribbled on it.
His office said this meant left “on the outer gate of the premises”.
It was argued on behalf of Gamede that this type of service did not comply with the law, as it was not left at the place where Gamede actually lived, but outside the boundary walls.
Gamede also said nothing could be affixed to the gate as it was rusted. Had it been placed through the bars in the boundary gate, it would have come to his attention, and would have constituted proper service. However, on the current service, the summons did not come to his attention after service.
The court noted that the purpose of service of a process is to notify the person on whom the process is to be served of such process and its contents. In terms of the rule applicable the court is thus required to be satisfied as to the effectiveness of the service.
Acting Judge WJ Du Plessis quoted an unrelated but similar judgment, where the Sheriff “fixed a summons to the grass” outside the house.
In that case the court held that simply leaving the summons at the residential address of the affected party, without ensuring the document would come to his or her attention, did not constitute proper service.
The court ruled in favour of Gamede and overturned the default judgment against him.
Pretoria News