News24.com | A summons for you can be served on a security guard at your complex, court rules

The Gauteng High Court has ruled that a summons can be served on a security guard at your complex.

• A summons can be served on a security guard at your complex.
• This was the ruling of the Gauteng High Court in Johannesburg, dealing with a rescission application relating to a summons for money owed for a vehicle. 
• The court found the service on a security guard to be valid, given the difficulty of getting into a complex if the occupants are not available.

A summons meant for you served on a security guard that works at your complex, is perfectly valid.

This is according to the Gauteng High Court in Johannesburg, which dealt with a rescission application relating to a summons after a man owed money for a vehicle he had purchased.

After a default judgment was awarded to the creditor, the man sought to have the judgment rescinded.

Part of the applicant’s argument in the rescission application was that the service of the summons was invalid.

According to the judgment handed down by Judge Allyson Crutchfield, a copy of the summons was served by the sheriff of the court on a security guard employed at the complex in Sandton that the man listed as his address where legal notices could be sent.

The return of service indicated that the service of the summons took place at the applicant’s address, even though the summons was not served at the applicant's unit.

Following this summons, the creditor obtained a default judgment against the applicant for the money owed - around R108 000 - after the vehicle had been repossessed and sold.  

"The applicant contended that service on the security guard at the entrance to the security complex at the domicilium [place of summons or execution] address, did not accord with any of the competent methods of service," Crutchfield said.

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As a result, the applicant argued that the default judgment was sought and granted in error.

The applicant had also argued that he no longer resided at that address and had informed the creditor.

Crutchfield said the service on an address chosen by the debtor constitutes good service even if the debtor is known not to live at the address, is overseas or has abandoned the premises.

However, the manner of service at the address must be effective.

She added that it was the obligation of a debtor to update or amend the debtor's chosen address with the credit provider in the event of a change to the address.

Crutchfield accepted that the applicant informed the first respondent’s representatives telephonically that he no longer lived at the address but said that that did not serve to amend the address.

This was after the respondents visited the new address, but were told by security the applicant did not live there.

In her judgment, Crutchfield found that the telephonic conversation in respect of the change of residential address did not constitute a valid amendment to the address in terms of the agreement.

She said:

Moving onto whether the service of the summons was valid, Crutchfield said the principles governing effective service on a domicilium address require that service be effected "in any manner by which in the ordinary course the [process] would come to the attention of and be received by the [intended recipient].

"One of the methods of doing so is by handing the process to a responsible employee."

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Even though the security guard was not an employee of the applicant, but rather that of the complex, in light of the difficulties of gaining access to complexes in the absence of the relevant occupants, it did not render the service ineffective.  

"In my view, given the difficulties of a sheriff or his deputy accessing a security complex in the absence of the occupant for the purposes of service in terms of rule 4, service of process by way of it being handed to the security guard at the complex, a responsible employee older than 16 years, is valid and effective service on the debtor," Crutchfield said.

Accordingly, she said, the service on the security guard at the complex was a valid service on the applicant.

The applicant further argued that the respondent's claim to the debt prescribed prior to the service of the summons and that the applicant’s bank account was unlawfully attached and frozen. The court dismissed this claim.

Crutchfield dismissed the rescission application in its entirety and awarded costs to the respondents.