Third Party Claim Prescribes After the Sheriff Refuses to Serve a Summons

Author: Mpumelelo Ndlela

The Supreme Court of Appeal (SCA) in Motloung and Another v The Sheriff, Pretoria East and Others (Case no 1394/18) {2020} ZASCA (“Motloung”), discouraged the conduct of the sheriff in Pretoria East (“the respondent”) for refusing to serve a high court summons, resulting in the prescription of the Appellant’s third party claim against the Road Accident Fund (RAF).

By way of background, the Appellant’s attorneys instructed the respondent to serve a summons which was not signed by the registrar, on the RAF.  The respondent refused to serve the unsigned summons because it does not comply with the provisions of  Uniform Rule 17(3)(c), which provide that a summons “shall” be signed and issued by the registrar. The appellants’ third party claim consequently prescribed and a damages claim was instituted against the respondent for his failure to serve the summons, in the amount the appellants would have been awarded by the RAF. The High Court dismissed the appellants’ claim.

On Appeal, the SCA held that an unsigned summons is a breach which can be condoned by the court under Uniform Rule 27(3), despite not complying with the provisions of Rule 17(3)(c). The use of the word ‘and’ in Rule 17(3)(c), does not imply that issuing and signing of a summons is a single action. In other words, a summons can be signed without it being issued and vice versa.

In Motloung, the summons was issued but not signed by the registrar. The SCA drew a  distinction between a failure to sign a summons and a failure to issue a summons, which is a basic component of an action. If a summons is not issued (the process in which the registrar allocates a case number, dates, and stamps the summons) the litigation process is not initiated and as such the failure to issue summons cannot be condoned. However, failure to sign a summons that has been issued is on a different basis because an action has been initiated. The provision of a signature is a peremptory provision which can be condoned and does not necessarily result in nullity.

Prior to the decision in Motloung, there were two conflicting decisions on whether an unsigned summons can be condoned, or it constitute a nullity. In Noord-Kaap Lewendehawe Koöp Beperk v Lombaard 1988 (4) SA 810 (NC) (“Lombaard”), the court held that such a summons could not be condoned, as the summons was a nullity. However, in Chasen v Ritter 1992 (4) SA 323 (SE) (“Chasen”), the court held that such a summons could be condoned. The SCA’s decision means that the conclusion in Chasen is correct.

Therefore, a high court summons which has been issued but not signed by the registrar, in accordance with Uniform Rule 17(3)(c), does not result in a nullity for lack of signature as it can be condoned by the court under Uniform Rule 27(3). The SCA held that it is not for the sheriff to determine whether a summons constitute a nullity, the courts are the ones to make that judgment.