At STBB, our litigation and dispute resolution specialists have the skill and expertise to pursue complex and extensive claims. Indeed, our litigators often handle matters where a client intends to institute legal proceedings against an individual who has failed to timeously make payment under a contract, but quickly discovers that the impugned debtor’s whereabouts are unknown. Naturally, these situations can be emotionally overwhelming and frustrating. Rest assured, South African law makes provision for these instances.
In accordance with the procedural requirements outlined under the High Court Rules and Magistrates’ Court Rules, a summons may be served on a defendant in various ways. These methods include service by way of personal service, service upon a duly authorised agent, or service at the defendant’s residence or place of business by the Sheriff of the Court.
In the instance where a defendant’s whereabouts is unknown, application must be made to court to serve the summons via an alternative method. If the defendant is suspected to be within the borders of South Africa, but cannot be traced, the plaintiff must apply to court for leave to effect service of the summons via substituted service.
Importantly, the plaintiff must prove, on a balance of probabilities, that they have exhausted all available avenues to trace the defendant. The plaintiff may propose any alternative method service provided only that is a common sense avenue for service in the prevailing circumstances. For instance, if the defendant is presumed to be in Hermanus, they may suggest that the summons be published in a local newspaper. Given the ubiquity and convenience of technology, however, other methods of substituted service include effecting service of summons via email, WhatsApp, or a social platform, such as Facebook or Instagram.
Where the defendant is believed to be beyond South Africa’s borders and the plaintiff endeavours to institute legal proceedings against the defendant, they must apply for leave to sue by way of edictal citation. This is a special type of summons which, like an application for substituted service, is brought by the plaintiff on an ex parte basis.
Let our team of experienced team of litigation and dispute resolution specialists handle the legal details for you. For expert legal advice and assistance, contact us at litigation@stbb.co.za.
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