By Sipho Matshie
Introduction
Upon institution of legal proceedings, it is important that all interested parties be informed about the case. A plaintiff to an action or an applicant to an application must ensure that a defendant(s) or respondent(s) is aware of the legal action. This takes place through the so-called service of process, which is governed by respective court rules. In the absence of a proper service or no service at all, the court may refuse to grant an order and in the event that it does, an aggrieved party may rescind that order.
It must be pointed out, however, that under certain circumstances, the law does permit for an order to be obtained without informing the other party. This usually happens when serving legal documents upon the other party is likely to defeat the purpose of an application or when a matter is of such dire urgency that it is warranted for an order to be obtained without due service. However, such cases often involve the granting of interim relief, with the other party being called upon to show cause why final relief must not be granted (See for example, rule nisi, or proceedings before the Domestic and Harassment Court). In light of their exceptional nature, such cases will not be addressed in this contribution as they require a separate discussion of their own.
Thus, in this contribution, I seek to demonstrate that a lack of proper service is a rescindable error. Lessons are drawn from the recent case by the Johannesburg High Court between South African Reserve Bank v YWBN Mutual Bank [2025] ZAGPJHC 518, where Sutherland DJP granted a rescission application due to the respondent (as the applicant in that matter) having failed to properly serve court papers upon the applicant (a respondent in that matter). The case is briefly discussed below.
Litigation before the Johannesburg High Court
The matter before DJP Sutherland was a rescission of an order granted in favour of YWBN Mutual Bank. The YWBN Mutual Bank had instituted urgent proceedings against the South African Reserve Bank (SARB), an application which was summarily granted in the absence of the SARB due to no opposition. The service of process was effected by Sheriff of the court and served upon a security official around 16h43 on 30 April 2025 in the premises of the SARB. The SARB was called to deliver its answering affidavit the following day and was further informed in the papers that the matter would be enrolled on 6 May 2025.
While the application was served on 30 April, at 16h43, the following day was “worker’s day”, a public holiday in the South African calendar. There was then a Friday and a weekend. It was only on 6 May 2025 that the SARB knew of the papers and the time period to oppose and file any opposition papers had lapsed. The application was granted on an unopposed basis.
In the rescission application, DJP Sutherland was critical of the manner of service adopted by YWBN Mutual Bank. He categorized the service as “unprofessional” and further stated that it was unreasonable to expect the SARB to respond in the manner in which service was effected. Relying on SAA v BDFM Publishers 2026 (2) SA 561, he found that ‘the service was ineffective and the application could have been struck off the roll for that reason’ (at para 11). In this instance, although the court had acknowledged that there was at least a service, it nonetheless found that it was improper and the order granted thereon was rescindable.
The importance of service of process
As alluded to above, interested parties must be notified when legal proceedings have been instituted. This accords with the audi alteram partem rule. This rule is central to section 34 of the Constitution of Republic of South Africa, which provides for access to courts and allows for resolution of disputes through the application of the law. As a result, the sacrosanct nature of this rule in our legal system cannot be gainsaid.
In addition, the rule speaks to our natural justice, which indicates that ‘a person or entity against whom a decision may be given, or whose interests stand to be detrimentally affected by a decision, must be afforded notice thereof and an opportunity to state its case’. Therefore, service of process is not merely for legal expediency but it serves as an integral tenet of our legal system and crucial for the rule of law.
A judgment must thus be given when both parties have had a chance to address and persuade the court towards a just outcome. Without the benefit of both sides’ versions, a court may not be in a position to balance and test the interests of all parties, hence it becomes necessary that a proper service be effected so that representations by all concerned can be made. It is one thing to inform a party about legal proceedings and such a party elects not to be participate. It is a completely different issue altogether to fail, improperly, or elect not, to inform an interested party about a case that they might need to answer.
What Constitutes a Proper Service?
Service of process has been defined as the formal delivery of legal documents such as summons, notices, court applications, and other pleadings to another party in a legal dispute. In South Africa, the Uniform Rules of Court (URC) and the Magistrates’ Court Rules prescribe how service is to be effected. Rule 4 of the High Court Rules provides various methods of service, such as personal service, service at a domicilium citandi et executandi, service on a registered office, and even substituted service in appropriate cases. The same process is contained in Rule 9 of the Magistrates’ Court rules, in terms of how litigants in the Magistrates Court are to conduct service of process.
Urgent applications are regulated by Rule 6(12) of the URC, where a court may dispense with the forms and service provided in the Rules of the High Court and ‘may dispose of such matter at such time and place and in such manner and in accordance with such procedure’ as it might deem necessary. The Rules of urgency apply mutatis mutandis in the Magistrates Court, save to state that the specific Rule therein is Rule 55.
Improper service includes serving the wrong person, serving outside the prescribed timelines (unless prior indulgence has been sought from the other party or leave has been granted by court, service outside the prescribed timelines will be irregular), or failing to serve at all. A service of process has been said to be a cornerstone of our legal system (Standard Bank of South Africa Ltd v Bogatsu [2024] ZAGPPHC 828 at 65) and equally incidental to a party’s constitutional right to a fair hearing (own emphasis). Thus, a proper service of process is that which has timeously and properly informed all the cited parties of the action or application instituted against them. Should the service be improper for some reason, the party that has instituted the matter would have committed a rescindable error, if the matter successfully concludes in court.
Conclusion
The rules surrounding service of process are fundamental safeguards rooted in constitutional and common law values. As demonstrated in the SARB v YWBN Mutual Bank case, when service is carried out in a manner that disregards fairness and the audi rule, any resulting court order may be susceptible to rescission.
Pursuit of justice must be based on full and fair hearings and a party that is not properly served or not served at all, would have effectively been denied that right. As alluded by DJP Sutherland in the SARB v YWBN Mutual Bank case, service of process must at least be reasonable and professional.
About the author:
Mr Sipho Matshie is an LLB graduate at the University of South Africa and Master of Laws candidate, majoring in Aviation Law, at the same university. He currently serves as a Candidate Legal Practitioner at the University of South Africa Law Clinic.