THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1394/2018
In the matter between:

JONE JOHN MOTLOUNG

FIRST   APPELLANT
MOSELE MERRIAM MOLOI

SECOND APPELLANT
and
THE SHERIFF, PRETORIA EAST

RESPONDENT
STEINMANN ATTORNEYS

FIRST THIRD PARTY
CJ VAN RENSBURG ATTORNEYS
SECOND THIRD PARTY

Neutral citation: Motloung and Another v The Sheriff, Pretoria East and
Others (Case no 1394/18) [2020] ZASCA 25 (26 March
2020)
Coram:
SALDULKER, SWAIN and MOLEMELA JJA, and GORVEN
and EKSTEEN AJJA
Heard:
9 March 2020
Delivered: 26 March 2020
Summary: Summons – not signed by registrar – condonable or nullity –
interpretation of rule 17(3)(c) of the Uniform Rules of Court – absence of
signature not on the same footing as a summons which had not been issued –
susceptible to condonation under Uniform Rule 27(3).

_____________________________________________________________

ORDER
_____________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Baqwa J,
sitting as court of first instance): judgment reported sub nom Motloung &
Another v The Sheriff, Pretoria East & Others [2018] ZAGPPHC 664; 2019
(3) SA 228 (GP).

The appeal is upheld with costs, including the costs of two counsel
where so employed.
The order of the high court is set aside and replaced by the following
order:
(a)
The special plea is dismissed with costs.
(b)
The defendant is directed to pay the costs arising from the
exception.
(c)
The costs in paragraphs (a) and (b) hereof shall include the costs
of two counsel where so employed.
_____________________________________________________________

JUDGMENT
_____________________________________________________________

Gorven AJA (Saldulker, Swain and Molemela JJA and Eksteen AJA
concurring)

[1] The crisp issue in this appeal is whether a summons which has not been
signed by the registrar of the court is a nullity or a defective pleading which
is condonable under Uniform Rule 27(3). There are conflicting decisions of
two divisions of the High Court on the issue. In Noord-Kaap Lewendehawe

Koöp Beperk v Lombaard,1 Erasmus J held that such a summons is a nullity
and not susceptible of condonation. In Chasen v Ritter,2 Burger AJ held that
the absence of the signature of a registrar could be condoned.

[2] The appellants were involved in a motor vehicle collision on
15 January 2007. They instructed their attorney to institute action against the
Road Accident Fund (the RAF) for damages arising from the collision. A
summons was prepared and taken to the Registrar of the Gauteng Division of
the High Court, Pretoria. The Registrar allocated a case number and stamped
the summons. The stamp contained the date on which he processed the
summons, his designation as Registrar and his name, BI Ankowitz. The
summons was returned to the attorney for service. It later emerged, however,
that the Registrar had not signed the summons.

[3] The appellants’ attorney sent the summons to the respondent for
service. The respondent refused to serve it. He took the view that ‘only once
a summons is signed by the Registrar [is it] constituted as a court process’. He
contended that the summons was a nullity and did not amount to court process
and that he was accordingly not obliged nor permitted to serve it.

[4] Because the summons was not served, the claim against the RAF
prescribed. The appellants sued the respondent for damages arising from his
failure to serve the combined summons. They averred that, because of this,
they were precluded from claiming from the RAF. As such, they had suffered
damages in the sum which would have been awarded against the RAF.

1 Noord-Kaap Lewendehawe Koöp Beperk v Lombaard 1988 (4) SA 810 (NC).
2 Chasen v Ritter 1992 (4) SA 323 (SE) 325-327; [1992] 4 All SA 137 (SE).

[5] The respondent initially excepted to the particulars of claim. The
exception came before Fourie J in the Gauteng Division of the High Court,
Pretoria. He did not give a judgment but instead ordered the respondent to
deliver a plea. The respondent entered a special plea and pleaded over the
merits. The special plea raised the defence of nullity mentioned above. The
respondent also joined the two third parties in the action. They took no part in
the aspect of the matter which gave rise to this appeal, nor in the appeal itself.

[6] The special plea was adjudicated separately, in terms of rule 33(4) of
the Uniform Rules of Court, before Baqwa J in the Gauteng Division of the
High Court, Pretoria (the court of first instance). It was dealt with on the basis
that the only defect in the summons was the lack of signature of the registrar.
The sole issue was whether this meant that it was a nullity and thus did not
amount to court process. The court of first instance upheld the special plea
and dismissed the appellants’ claim,3 but granted leave to appeal to this court.

[7] This finding was squarely based on the decision in Lombaard and on
the following obiter dictum of Rumpff JA in Republikeinse Publikasies
(Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk:4
‘A summons that is not issued by the registrar would be a nullity and service of such a
summons would not result in action being instituted.’5

3 The judgment is reported as Motloung and Another v The Sheriff Pretoria East and Others [2018]
ZAGPPHC 664; 2019 (3) SA 228 (GP).
4 Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at
780G. The dictum is obiter because that matter concerned a notice of motion rather than a summons. Rumpff
JA contrasted the position of a notice of motion which had not been issued with that of a summons that had
not been issued.
5 My translation from the original Afrikaans which reads: ‘'n Dagvaarding wat nie deur die griffier uitgereik
is nie, sou 'n nulliteit wees en deur betekening van so 'n dagvaarding sou geen geding ingestel word nie.’

Lombaard held that, because rule 17(3)(c) requires a registrar to issue and sign
a summons, where the original summons has not been signed by the registrar,
the sheriff had no lawful direction to serve it.6 The court of first instance
concluded:
‘What can be gleaned from both the Republikeinse Publikasies and Noord-Kaap
Lewendehawe Koöp decisions is that the signature and its issuing being joined by the
conjuctive “and” are critical components of the Registrar’s instruction. It goes without
saying that absent one or two of those requirements, the document is visited with nullity.’7

[8] Rule 17 deals with the provisions relating to summonses. The
requirement that the registrar must sign a summons is found in rule 17(3)(c).
The proper approach to this matter lies in the interpretation of the provisions
of rule 17(3)(c) in the context of the rules as a whole.8

[9] The established approach to interpretation was set out by this court in
Endumeni Municipality:9
‘Whatever the nature of the document, consideration must be given to the language used
in the light of the ordinary rules of grammar and syntax; the context in which the provision
appears; the apparent purpose to which it is directed and the material known to those
responsible for its production.’
To this must be added what was said in Cool Ideas 1186 CC v Hubbard and
Another:10

6 Lombaard at 816I-J.
7 Paragraph 19.
8 Minister of Prisons and Another v Jongilanga 1985 (3) SA 117 (A) at 123B-D.
9 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
(SCA) para 18. (References omitted.) This approach was confirmed by the Constitutional Court in Airports
Company South Africa v Big Five Duty Free (Pty) Limited and Others [2018] ZACC 33; 2019 (2) BCLR
165 (CC); 2019 (5) SA 1 (CC) para 29.
10 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC) para 28.
(References omitted.)

‘A fundamental tenet of statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning, unless to do so would result in an absurdity. There
are three important interrelated riders to this general principle, namely:
(a)   that statutory provisions should always be interpreted purposively;
(b)   the relevant statutory provision must be properly contextualised; and
(c)   all statutes must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought to be interpreted to preserve their
constitutional validity. This proviso to the general principle is closely related to the
purposive approach referred to in (a).’

[10] The starting point is the wording of a provision. The relevant parts of
rule 17 provide:
‘(1) Every person making a claim against any other person may, through the office of the
registrar, sue out a summons or a combined summons addressed to the sheriff directing
him to inform the defendant inter alia that, if he disputes the claim, and wishes to defend
he shall —
… .
(3) (a) Every summons shall be signed by the attorney acting for the plaintiff and shall bear
an attorney’s physical address, within 15 kilometres of the office of the registrar, the
attorney’s postal address and, where available, the attorney’s facsimile address and
electronic mail address.
. . .
(c) After paragraph (a) or (b) has been complied with, the summons shall be signed and
issued by the registrar and made returnable by the Sheriff to the court through the
registrar.’11
What, then, of the language used in rule 17(3)(c)?

11 Paragraph (b) is not relevant to this matter.

[11] The rule says that the ‘summons shall be signed and issued by the
registrar’.12 The word ‘shall’ does not necessarily denote a peremptory
provision. In Sutter v Scheepers,13 Wessels JA suggested how to arrive at the
‘real intention’ of such a provision. His approach was helpfully summarised,
in Pio v Franklin NO, as follows:14
‘(1)   The word “shall” when used in a statute is rather to be considered as peremptory,
unless there are other circumstances which negative this construction.
(2)   If a provision is couched in a negative form, it is to be regarded as a peremptory
rather than a directory mandate.
(3)   If a provision is couched in positive language and there is no sanction added in case
the requisites are not carried out, then the presumption is in favour of an intention to make
the provision only directory.
(4)   If when we consider the scope and objects of a provision, we find that its terms
would, if strictly carried out, lead to injustice and even fraud, and if there is no explicit
statement that the act is to be void if the conditions are not complied with, or if no sanction
is added, then the presumption is rather in favour of the provision being directory.
(5)   The history of the legislation also will afford a clue in some cases.’
In the present matter, the provision is couched in positive terms. Its breach
carries no sanction at all, let alone one of nullity. Applied to the present matter,
these guidelines favour an interpretation that the provision is directory only.
However, the first principle requires consideration of ‘other circumstances
which negative this construction.’

[12] One such circumstance is the dictum of Rumpff JA in Republikeinse
Publikasies concerning a summons which is not issued.15 Another is provided

12 My emphasis.
13 Sutter v Scheepers 1932 AD 165 at 173 – 174.
14 Pio v Franklin NO and Another 1949 (3) SA 442 (C) at 451.
15 See fn 4 above.

in the matter of Jongilanga.16 There the address of the respondent’s
attorneys given in the summons was more than eight kilometres from the
office of the registrar. Rule 17(3)(a) uses similar terms to those of
rule 17(3)(c), providing:
‘Every summons shall be signed by the attorney acting for the plaintiff and shall bear an
attorney’s physical address, within 8 kilometres of the office of the registrar’.17
Eloff AJA distinguished the breach in Jongilanga from that referred to by
Rumpff JA, explaining:
‘It stands to reason that when the basic component of an action, viz the issue of a summons
by a Registrar, is absent, the Court will not condone the omission.’18
He held that the requirement to provide an address no further than eight
kilometres from the office of the registrar did not stand on the same footing
as the requirement that a summons be issued. The latter was, as he put it, ‘the
basic component of an action’ while the former was not. Eloff AJA held that
although ‘the Rule is couched in peremptory terms, the Court has a discretion
to condone a breach of its requirements’. This court has thus held that the use
of ‘shall’ in rule 17(3)(a) makes the provision peremptory. I see no reason
why that word should be construed differently in a different sub-paragraph of
rule 17(3). In my view, therefore, the provision for signature is peremptory.

[13] The context of rule 17(3)(a) has shed light on one aspect of the rule.
Rule 27(3) provides a broader context and reads:
‘The court may, on good cause shown, condone any non-compliance with these Rules.’
The effect of this was explained in Northern Assurance Co Ltd v Somdaka:19

16 See fn 8 above.
17 My emphasis. This was how the rule read at the time. It has since been amended to 15 kilometres.
18 Jongilanga at 123G-I.
19 Northern Assurance Co Ltd v Somdaka 1960 (1) SA 588 (A) at 595A-C.

‘Once it is seen that the Court has a discretion, it seems to follow inescapably that it was
not intended that a breach of the Rules relating to actions should necessarily be visited with
nullity.’
The key word here is ‘necessarily’. Even the breach of a peremptory provision
does not invariably result in nullity. On the other hand, the dictum in no way
excludes that outcome. The effect of the breach of the specific provision must
be assessed.

[14] Somdaka approved the following dictum in Foster v Carlis and
Houthakker:20
‘But notwithstanding this emphatic language, the Courts have generally adopted the
principles laid down by Lord Campbell in The Liverpool Bank v Turner (1861, 30 LJ Ch
379) where he said “No universal rule can be laid down as to whether a mandatory
enactment shall be considered as directory only or obligatory with an implied nullification
for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the
Legislature by carefully attending to the whole scope of the statute to be construed.”’
This seems to suggest that there are three categories of irregularity; directory
rules whose breach can be condoned, peremptory rules whose breach can be
condoned and peremptory rules whose breach is visited with nullity.

[15] As mentioned, rule 17(3)(c) is couched in peremptory terms. The
failure to sign thus breached a peremptory provision. This does not necessarily
mean that it results in nullity. It has been seen that, in the context of rule 17(3),
such a breach was condoned in Jongilanga. What, then, is the position in the
present matter? Was the breach condonable or was it visited with nullity?

20 Foster v Carlis and Houthakker 1924 TPD 247 at 252.

[16] Reverting to the wording, rule 17(3)(c) requires two distinctive actions
of registrars. They are required to sign and issue a summons. The use of the
word ‘and’ does not convert these into a single action as appears to have been
the reasoning in the court of first instance.21 All that it does is make the word
‘shall’ applicable to both actions. Both are peremptory in the context of
rule 17(3). Because the rule distinguishes between two specific and separate
acts required of the registrar, they cannot amount to the same thing. This must
mean that, factually, one can be done and not the other. A summons can be
signed without it being issued. A summons can also be issued without it being
signed.

[17] The significance of the two different actions for the present matter is
that the only irregularity relied upon is the lack of signature. This means that
we are here dealing with a summons which has been issued but not signed.
The dictum in Republikeinse Publikasies concerns a summons which has not
been issued. This, said Rumpff JA, would be a nullity. No mention is made in
the dictum of the failure to sign. The dictum is accordingly not of direct
application to the present matter. It does, however, provide the most
immediate context in which to interpret the provision, standing as it does in
the same sub-paragraph of the rule.

[18] There was some debate in the papers and the heads of argument as to
what actions constitute ‘issuing’ a summons. The appellants submit that a
summons which has taken a route through the office of the registrar has been
issued. This may be somewhat too broad. It does, however, bear echoes of the

21 See para 19 of the judgment of the court of first instance, as quoted in para 7 above.

dictum of Innes CJ concerning the meaning of ‘process of court’ in Dorfman
v Deputy Sheriff for the Witwatersrand District22 where he held that:
‘A “process of the court” must be something which “proceeds” from the court; some step
in legal proceedings which can only be taken with the aid of the court or of one of its
officers.’
If the registrar has allocated a case number, that number and the requisite
particulars have been entered into whatever records are used by the registrar
to regulate the further administrative procedures relating to the action, and the
registrar has dated and stamped the summons and then released it for service,
this may amount to issuing a summons. It would certainly constitute a process
of court as described by Innes CJ. However, it is not necessary in this matter
to determine what is meant by the word ‘issued’ in the context of the rule.
This is because, as pointed out above, we are dealing with a summons which
was issued but not signed.

[19] It is convenient at this point to consider the reasoning in Lombaard. It
is this on which the respondent relies and was the basis on which the court of
first instance found that ‘absent one or two of those requirements, the
document is visited with nullity’. In Lombaard, a provisional sentence
summons had not been signed by the registrar. Condonation was sought in
terms of rule 27(3) for this oversight. Erasmus J quoted the dicta in
Republikeinse Publikasies and Jongilanga mentioned above. He then
concluded that the failure to sign was the most basic component of the
summons and is required to lend legality to it.23 Based on this, he said:

22 Dorfman v Deputy-Sheriff for the Witwatersrand District 1908 TS 701 at 703.
23 Lombaard at 816I-817B.

‘In my view, the failure of the Registrar to sign the original summons breached the
fundamental requirement of the summons coming into operation: it was a nullity’.24
But this conclusion does not follow from the dicta he relied upon. He did not
recognise that both dicta dealt with the issue of a summons. Neither of them
dealt with its signature. He appears to have conflated the two. He certainly did
not treat them as two distinctive acts required under the rule.

[20] The contrary authority, rejected by the court of first instance, is Chasen
v Ritter.25 Here, the summons was regular in all respects except for the failure
of the registrar to sign it. A clerk who lacked the requisite authority had signed
some copies of the summons but not that which was served. Burger AJ noted
that the two dicta relied upon in Lombaard did not support the conclusion
arrived at in that matter.26 He held that the use of the word ‘any’ in rule 27(3)
‘emphasises the absence of any restriction on the Court to condone or to waive
the requirements of its own Rules.’27 And that ‘[t]he rule, if it does exist, that
an irregularity (but not a nullity) can be condoned is artificial and does not
serve a real purpose’.28 In other words he did not recognise that a nullity could
not be condoned. He condoned the lack of signature.

[21] This approach does not take into account that two dicta of this court
have held that the failure to issue a summons is visited with nullity. Although
those matters did not interpret rule 17(3)(c), they related to one of the two
actions referred to in that rule. They say, in effect, that the breach of one of

24 Lombaard at 817C-D. My translation. The original reads: ‘Myns insiens by gebrek aan ondertekening van
die oorspronklike dagvaarding deur die Griffier ontbreek die kardinale vereiste vir die inwerkstelling van die
dagvaarding’.
25 See fn 2 above.
26 At 326E-F.
27 At 328G-H.
28 At 329C-D.

the two requirements of that rule cannot be condoned. Burger AJ did not
consider the effect which that might have on the approach to be taken to the
other requirement of signing a summons. In other words, he did not consider
the most immediate context of the provision for signature in arriving at a
conclusion on the effect of its breach.

[22] During argument, mention was made of Frost, Mulligan & Routledge
v Rising NO.29 In that matter the defendant took an exception on the ground
that the copy served was undated and did not bear the name of the clerk of the
court. There was no issue that the original was dated and contained his name.
A magistrate upheld the exception and set it aside. Innes CJ held that, because
a true copy had not been served, the defendant had not been properly cited.
The appeal was dismissed. However, the matter is of little assistance to the
respondent in the present proceedings. The reasoning is terse in the extreme
and, in any event, the issue was limited to a failure to serve a true copy of the
summons.30

[23] Reverting to the present matter, it has been seen that an unissued
summons is a nullity. Given that this is the immediate context for the provision
for signature, it is necessary to determine whether any distinction is to be
drawn between the result of a failure to sign and that of a failure to issue.
Eloff  AJA distinguished the situation in Jongilanga from the failure to issue
a summons on the basis that the issuing of a summons was ‘the basic

29 Frost, Mulligan & Routledge v Rising NO 1905 TS 445.
30 This matter was mentioned in Minister of Justice & Another v Human 1970 (2) SA 765 (E). In that
matter, the registrar did not sign copies of the summons. An exception was taken to this effect. It was
conceded in argument that the only requirement was that the name of the registrar appear on the copies. No
signature was required. The exception was dismissed.

component of an action’.31 The failure to issue was seen as an example of the
breach of a peremptory provision which leads to nullity. Can it be said that
the signing of a summons is ‘the basic component of an action’?

[24] In the first place, Jongilanga says issuing a summons is ‘the basic
component’ rather than ‘a basic component’.32 If this is so, no other
component is basic. Why might this word have been chosen? The issue of a
summons has been held to initiate an action.33 Once it has been issued,
litigation has been commenced. An action has come into existence in which a
claim is made against named defendants. Once service has been effected, they
are called on to defend on pain of judgment. The underlying rationale for this
is that the registrar has processed the summons. It can be traced in the court
records as having been initiated and has been authorised by the registrar to be
sent out. After service, failure to defend may result in a judgment being
entered against them, followed by a writ for execution. All of these documents
will bear the allocated case number. The authorised court official has placed
their imprimatur on the summons. This is probably why Jongilanga describes
it as ‘the basic component of an action’34 and why Rumpff JA said that, if not
issued, a summons is a nullity.

[25] The failure to sign stands on an entirely different footing. No external
consequences arise if a summons is issued but not signed. An action has been
initiated. If no summons has been issued, litigation has not been initiated. No
action has come into existence against the named defendants. They may be

31 Jongilanga at 123G-H.
32 My emphases.
33 Marine & Trade Insurance Co Ltd v Reddinger 1966 (2) SA 407 (A) at 413D.
34 My emphasis.

supine in the face of such a document without consequence. Once the
summons has been served, the cited defendants ignore it at their peril. Failure
to sign does not change the status of an issued summons. Unlike the failure to
issue, it cannot be said to be ‘the basic component of an action’. It is much the
same as any other peremptory provision of rule 17(3). I do not see how the
present breach differs from the failure to comply with either of the provisions
of rule 17(3)(a).

[26] As part of the interpretive exercise, the ‘apparent purpose to which it is
directed’ must be considered and a ‘purposive approach’ adopted.35 What,
then, might be the purpose of the requirement of signature? It seems to raise
the issue of whether it is the registrar, rather than someone else, who has
issued the summons. This is, of course, a factual enquiry which can be
established in due course during the litigation. If the person who issued was
not the registrar and not authorised, it can be set aside as a nullity. But if it
was issued and not signed, that does not, in my view, lead to the same result.
Of course, in the present matter, the registrar’s stamp, bearing his name, was
affixed to the summons. The identity of the person who issued the summons
was thus clear. It can scarcely be imagined that the registrar would allow
anyone else to use his personalised stamp. There was no submission from the
respondent that this might have been the case. In any event, once more, that
is a factual enquiry to be undertaken and reverts to the question of whether
the summons was in fact issued. I can discern no purpose in nullifying such a
summons.

35 See para 9 hereof.

[27] This approach is buttressed by the principle, articulated almost a
century ago, that:
‘The rules of procedure of this Court are devised for the purpose of administering justice
and not of hampering it, and where the rules are deficient I shall go as far as I can in
granting orders which would help to further the administration of justice.’36
In his judgment, sometime after the dictum under discussion, Rumpff JA cited
the above authority and went on to say:
‘[I]t is desirable to repeat what is of general application, namely, that the Court does not
exist for the Rules but the Rules for the Court’.37
And, in Trans-African Insurance Co Ltd v Maluleka,38 Schreiner JA, in
upholding the dismissal of an application to cancel an admittedly defective
summons said:
‘But on the other hand technical objections to less than perfect procedural steps should not
be permitted, in the absence of prejudice, to interfere with the expeditious and, if
possible, inexpensive decision of cases on their real merits.’39

[28] All of these dicta emerged from general principles of our common law
applied prior to the coming into effect of the Constitution.40 But it accords
with the principles of the Constitution and thus complies with the approach to
interpretation referred to in Cool Ideas.41 It supports the constitutional right to
have disputes adjudicated in a fair public hearing.42 Overly technical
approaches to hinder the courts deciding of genuine disputes between parties
are to be strongly discouraged. The need for condonation to show good cause

36 Ncoweni v Bezuidenhout 1927 CPD 130 at 130.
37 My translation. The original reads:
‘. . .  is dit wenslik om te herhaal wat in die algemeen van toepassing is, nl dat die Hof nie vir die Reëls
bestaan nie maar die Reëls vir die Hof’.
38 Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A).
39 At 278F-H.
40 Constitution of the Republic of South Africa, 1996.
41 See fn 9 above.
42 Section 34 of the Constitution.

allows for a consideration of prejudice. If courts are to err at all they should
do so in finding that irregularities are susceptible of condonation rather than
being necessarily visited with nullity.

[29] In my view, the present matter clearly falls within the ambit of a
peremptory requirement whose breach can be condoned under rule 27(3).
Despite not complying with a peremptory provision of rule 17(3)(c), it is not
visited with nullity. It can be condoned. The court of first instance was thus
wrong to treat a failure to sign on the same basis as a failure to issue. This also
means that the conclusion arrived at in Lombaard is incorrect and that in
Chasen correct. Accordingly, in my respectful view, the court of first instance
ought to have dismissed the special plea.

[30] In conclusion, it is necessary to say something about the conduct of the
respondent in refusing to serve the summons. It is not for sheriffs to judge
whether a summons is a nullity or susceptible of condonation. That is a matter
for courts to decide within the context of a proper ventilation of the issues. As
can be seen from this matter, some complexity may attend on that
determination. The approach which was taken by the respondent was
regrettable and is to be strongly discouraged.

[31] The appeal must be upheld. The parties were represented by two
counsel at the appeal. The matter involved two divisions of the High Court
coming to different conclusions. The parties submitted that the costs of two
counsel were warranted, both on appeal and in the court of first instance,
where two counsel were employed. I agree. The exception was taken, set
down and a direction given as a result. The issues raised were those dealt with

in the special plea. It could therefore not succeed. No costs order was made
for that aspect. The costs arising from the exception must therefore follow
suit.

[32] In the result, the following order issues:
The appeal is upheld with costs, including the costs of two counsel
where so employed.
The order of the high court is set aside and replaced by the following
order:
(a)
The special plea is dismissed with costs.
(b)
The defendant is directed to pay the costs arising from the
exception.
(c)
The costs in paragraphs (a) and (b) hereof shall include the costs
of two counsel where so employed.

________________________
GORVEN AJA
ACTING JUDGE OF APPEAL

Appearances

For appellant:
G Lubbe

Instructed by:
Nell Kotze & Van Dyk Attorneys, Pretoria

Symington De Kok Attorneys, Bloemfontein

For respondent:
BP Geach SC, with him CM Dredge
Instructed by:
Van Zyl Le Roux Incorporated, Pretoria
Honey Attorneys, Bloemfontein.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
26 March 2020
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

Motloung and Another
v
The Sheriff, Pretoria East and Others

Today the Supreme Court of Appeal upheld an appeal from the Gauteng Division of
the High Court, Pretoria. The appellants wished to claim damages from the Road
Accident Fund arising from a motor vehicle collision. The attorney for the appellants
sent a summons to the Sheriff for Pretoria East, requesting service on the Fund. The
Sheriff refused to serve the summons and the claim against the Road Accident Fund
was time barred as a result.

In the present action, the appellants claimed damages from the Sheriff, averring that
his negligence caused them to be unable to pursue the action against the Fund. The
Sheriff entered a special plea. This was to the effect that the summons was a nullity
and did not amount to court process. He was accordingly not obliged nor permitted
to serve it.

The basis of his contention arose from the fact that the Registrar of the High Court
had failed to sign the summons. He had allocated a case number, stamped it with a

stamp containing his name, his designation as Registrar and the date and sent it out
for service. Because Rule 17(3)(c) of the Uniform Rules of Court makes it
peremptory for a Registrar to issue and sign a summons, the Sheriff considered that
an unsigned summons was a nullity. This view was based on dicta of this court which
say that a summons which has not been issued is a nullity. There were two conflicting
decisions of Divisions of the High Court on the point.

Baqwa J, sitting as a court of first instance, held that the summons was a nullity. He
accordingly upheld the special plea and dismissed the action against the Sheriff with
costs but granted leave to appeal to the Supreme Court of Appeal.

The crisp issue in the appeal was whether the summons was a nullity or was one
containing an irregularity which could be condoned under Rule 27(3). If it was a
nullity, the special plea must succeed and if it was condonable, it must fail. After
reviewing the basis on which the dicta were made and the conflicting decisions on
the point, the Supreme Court of Appeal held that the failure of a Registrar to sign a
summons was susceptible to condonation. The order of the Gauteng Division of the
High Court, Pretoria, was set aside and substituted with an order dismissing the
special plea with costs, including the costs of two counsel where employed.