SUMMARY
| The facts of the present matter can be summarised as follows: |
- The plaintiff’s suffered a motor vehicle accident (“MVA”) in January 2007;
- As a result of the abovenmentioned MVA, the Plaintiff’s sought to claim compensation from the Road Accident Fund (“RAF”) through the institution of action proceedings;
- In 2011, action proceedings were purportedly instituted by way of summons, which in the ordinary course of litigation was delivered to the Sheriff for service thereof; however
- The sheriff failed to serve the summons on the RAF resulting in the Plaintiff’s claim for compensation prescribing.
As a result of the abovementioned facts, the Plaintiff brought a claim against the sheriff for their negligence in failing to serve the summons and allowing the Plaintiff’s claim to prescribe.
In its defence to the aforementioned claim, the Sheriff raised a special plea that the Plaintiffs Particulars of Claim disclosed no cause of action as the Plaintiff failed to observe the requirements of Uniform Rule 17(3), as it failed to ensure that its combined summons was signed by the registrar of the High Court.
In casu, the court was thus called upon to decide whether the sheriff was indeed negligent, and thus liable, despite the apparent failure of the Plaintiff to observe the Uniform Rules of Court.
HELD
| In determining the issue in the present matter, the court gave credence to the duty of the Sheriff’s office, as an officer of the court, to serve process without avoidable delay. The court reiterated that this was a statutory duty imposed on the sheriff’s office by S16(k) of the Sheriffs Act, 19 of 1986. However, the court qualified this obligation by highlighting that this statutory duty applied where such process (the summons in the present matter) was valid. To this effect, the court considered the onus placed on a Plaintiff in terms of Rule 17(3) of the Uniform Rules of Court. The Court traversed the authorities dealing with the abovementioned rule and concluded that compliance with same necessitated the following: |
- a summons must be signed by the registrar; and
- the registrar must issue same.
| The court concluded that a failure to observe the abovementioned requirements imposed by Rule 17(3) would render a litigant’s summons a nullity. |
| In the circumstances of the present case, the court concluded that the absence of the registrar’s signature on the summons rendered it null and avoid, and as a consequence no action was initiated. |
In conclusion, the court upheld the sheriff’s special plea, that the Plaintiff’s Particulars of Claim disclosed no cause of action and dismissed the Plaintiff’s claim with costs.
VALUE
| This case serves as a strong reminder to candidate legal practitioners, and their principles, that the rules of court should be followed “to the letter”. The abovementioned set of facts illustrate that the mere oversight of a minor procedural rule while instituting process, in favour of common practice, could be fatal to one’s case when such procedural aspects are challenged. This case also sheds light on the relationship between a litigant and the sheriff, in that the sheriff’s statutory obligation to serve process is qualified by the need for such process to be in compliance with the Uniform Rules of Court. |
Written by Sethu Khumalo and supervised by Omphile Boikanyo
