THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case no: 471/12

In the matter between:

ARENDSNES SWEEFSPOOR CC

Appellant

and

DALIA MARCELLE BOTHA
Respondent

Neutral citation:
Arendsnes Sweefspoor CC v Dalia Marcelle Botha (471/12)
[2013] ZASCA 86 (31 May 2013)

Coram:
MTHIYANE DP, SHONGWE, LEACH, PILLAY and PETSE JJA

Heard:
10 May 2013

Delivered
31 May 2013

Summary:
Civil Procedure – service of summons – Rule 4 (1) (a) (v) (Uniform
Rules) – when sufficient to interrupt prescription in terms of section 15 (1) of
the Prescription Act – service in substantial compliance with the rule.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: North Gauteng High Court, Pretoria (Stockwell AJ sitting as
court of first instance):
In the result the appeal is dismissed with costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
SHONGWE JA (MTHIYANE DP, LEACH, PILLAY and PETSE JJA concurring):
Introduction
[1] On 2 January 2004 the respondent, (Dalia Marcelle Botha) (to whom I shall
refer as the plaintiff) sustained bodily injuries while being transported in a cable car
system operated by the appellant, (Arendsnes Sweefspoor CC) (to whom I shall
refer as the defendant). She allegedly fell from the cable car when the clamps
attaching the cable car to the cable became undone resulting in the cable car flipping
over and the plaintiff falling about 30 metres to the ground. The plaintiff instituted a
claim for damages against the defendant. The defendant, inter alia, raised a special
plea to the effect that the plaintiff’s claim has prescribed in terms of the provisions of
s 12 of the Prescription Act 68 of 1969 (the Act). By agreement between the parties
the special plea was dealt with by the court a quo as a separate issue in terms of
rule 33(4) of the Uniform Rules of Court.  The question to be decided by the court a
quo was whether or not the plaintiff’s claim against the defendant had prescribed in
terms of the provisions of s 12 of the Act. The defendant contended that the plaintiff’s
claim is based on an incident which occurred on 2 January 2004 and that the plaintiff
had to serve the summons by midnight on 1 January 2007. The defendant therefore
contended that the plaintiff’s claim against it be dismissed with costs. The court a
quo dismissed the defendant’s special plea of prescription. This appeal is against
that ruling with the leave of the court a quo.

[2] The question raised in this appeal is whether the service of the summons on
the defendant on 14 December 2006 was good and served to interrupt the running of
prescription against the plaintiff.

[3] The facts are briefly the following. During January 2004, the defendant, a
close corporation, operated the well-known Hartebeespoort Cable car system from
which the plaintiff fell and injured herself, during one of the transportation trips. The
premises, which was the registered office of the defendant, comprised of one
building housing a ticket office, on the one wing, and a restaurant on the other. The
restaurant was operated by someone else and not the defendant. The cable car
business was permanently closed down by the Department of Labour, on 3 October
2005. Since that date the defendant ceased all its trading activities and had no
presence there.

[4] When the sheriff attempted service on 12 December 2006, (first attempt) he
was told that the defendant had ceased trading on the premises, only the restaurant
which was operated by a Mr Vermaak, the son in-law of Mrs Moller, the sole member
of the defendant, remained. However, when the defendant ceased trading, it never
deregistered the corporation and therefore its registered office remained the
premises as described in the return of service. After being informed that the cable
way business had been closed the sheriff consulted the plaintiff’s attorneys
telephonically, and was instructed to serve the summons at the premises because
the property remained the registered office of the defendant. Hence on14 December
2006 (second attempt) the summons was served on a Mr Pretorius, an employee of
the restaurant on the premises. It is common cause that Mr Pretorius never handed
the summons over to the defendant and that he was not employed by the defendant.
The defendant contended that it never received a copy of the summons from the
sheriff or Mr Pretorius and therefore contested that the summons was properly
served.

[5] The plaintiff contended as follows. The summons was properly served at the
defendant’s registered office and registered address. The registered office and the
registered address were those of the defendant at all material times. The corporation
(Moller CC) which owned the property and the restaurant business that was carried
on during December 2006 were essentially family businesses. Although no
responsible employee of the defendant was present at the registered address,  the
defendant ‘intentionally rendered impossible’ the strict compliance with Rule 4 by not
changing its registered office or address with the office of the Registrar of
Companies.

The legal framework
[6] Service of processes in the high court is regulated by Rule 4 of the Uniform
Rules. The relevant parts read as follows:
“4 Service
(1) (A) Service of any process of the court directed to the sheriff and subject to the
provisions of paragraph (a) any document initiating application proceedings shall be effected
by the sheriff in one or other of the following manners:
(I)…
(ii)…
(iii)…
(iv)…
(v) in the case of a corporation or company, by delivering a copy to a responsible employee
thereof at its registered office or its principal place of business within the court's jurisdiction,
or if there be no such employee willing to accept service, by affixing a copy to the main door
of such office or place of business, or in any manner provided by law.”

[7] The relevant subsection in this case is 4(1)(a)(v) which deals with service on a
corporation. As we know the defendant is a corporation which is obliged by s 25 (1)
of the Close Corporations Act 69 of 1984 to have a postal address and an office to
which all notices may be addressed. Section 25(2) reads:
‘(a) any notice , order, communication or other documents which in terms of this Act required
or permitted to be served upon any corporation or member thereof, shall be deemed to have

been served if it has been delivered at the registered office, or has been send by registered
post to the registered office or postal address, of the corporation; and
(b) process which is required to be served upon any corporation or member thereof shall,
subject to applicable provisions in respect of such service in any law, be served by so
delivering or sending it.’

[8] Section 15 of the Prescription Act 68 of 1969 is also relevant as it forms the
core of the defendant’s defence. It reads:
‘(1) The running of prescription shall, subject to the provisions of subsection (2), be
interrupted by the service on the debtor of any process whereby the creditor claims payment
of the debt.
(2) Unless the debtor acknowledges liability, the interruption of prescription in terms of
subsection (1) shall lapse, and the running of prescription shall not be deemed to have been
interrupted, if the creditor does not successfully prosecute his claim under the process in
question to final judgment or if he does so prosecute his claim but abandons the judgment or
the judgment is set aside’.

[9] The picture of the legal framework is completed by reference to the provisions
of s 170 (1)(b) of the companies Act 61 of 1973 and s 23(3), read with s 220 of the
Companies Act, 71 of 2008. In terms thereof companies are obliged to have a postal
address and to have a registered office to which all notices may be addressed and at
which all process may be served.

Discussion
[10] The service of a summons commencing action serves to interrupt the running
of prescription. (see AC Cilliers, C Loots and HC Nel Herbstein and Van Winsen The
Civil Practice of the High Court and The Supreme Court of Appeal of South Africa
50d (2009) at 354-355; also at 503 citing Re Hartley v Umkanganyeki (1889)10 NLR
49). For prescription to be interrupted three requirements must be present;
(a)
There must be a process.
(b)
The process must be served on the debtor.

(c)
By that process, the creditor must claim payment of the debt. (See J Saner
Prescription in South African Law (1996) at 3-112 (3). It is thus clear that the process
must be served on the debtor, which service must necessarily be legally and
properly effected consistent with the Uniform Rules. It is the actual service of the
summons and not merely the issuing thereof that serves to interrupt the running of
prescription.

[11] In the present case, it is common cause that the deputy sheriff served the
summons on 14 December 2006 at the registered office on a Mr Pretorius, an
employee of the restaurant on the premises, a person not less than 16 years of age,
by exhibiting to him the original and handing him a copy thereof and by explaining
the nature and exigency thereof. (In terms of s 36(2) of the Supreme Court Act 59 of
1959 the return of service presented by the deputy sheriff constitutes prima facie
evidence of the matters therein stated).

[12] Counsel for the defendant submitted that the service was not in terms of Rule
4 (1)(a)(v) because first Mr Pretorius was not an employee of the defendant, second
that in the absence of such employee a copy of the summons should have been
affixed to the main door of the registered office. He further contended that because
these two requirements were absent, the service was not a good and legally
recognized one. And that the law must be consequent by declaring that the running
of prescription could not have been interrupted. He contended further that the
defendant had closed down the business a year before and no longer had any
presence on the premises

[13] Counsel for the defendant urged this court not to create a precedent by
placing form above substance which might bring about a differentiation between
cases dealing with default judgments and those dealing with liquidation of companies
or interruption of prescription. I do not agree. We were not referred to any authority,
or practical example in support of this proposition. Service of a court process must
substantially comply with the relevant rules. In my view, it does not matter whether

one is dealing with a default judgment, a liquidation case or a case dealing with the
interruption of prescription. It is trite that each case must be dealt with on its own
particular facts and merit. There is no differentiation or exception. The court, if
service is contested, must determine whether service was good and legally
recognized or substantially compliant with the rules of service. The cause of action
and the consequences resulting from the process served are irrelevant to the
question whether proper service took place.

[14] In Brangus Ranching (Pty) Ltd v Plaaskem (Pty) Ltd 2011 (3) SA 477 at 481
(KZP) Van Zyl J, (writing for the full court) in para [15] said:
‘Service at the registered office of a company, in the absence of a responsible employee
thereof, by delivery of the document to be served to a person at such address (not being an
employee of the company) willing to accept such service, has been recognised as a good
and proper service which is preferable to merely attaching the process, for instance, to the
outer principal door of the premises’, Van Zyl J also referred with approval to Chris
Mulder Genote Ing v Louis Meintjies Konstruksie (Edms) Bpk 1988 (2) SA 433 (T).
Brangus is the most recent high court judgment which, in my view, is authority for the
proposition that effectiveness of the service of a court process or substantial
compliance should trump the form. In other words by reason of the fact that a copy of
the summons was served at the registered office of the defendant there had been
substantial compliance with the requirement of Rule 4(1)(a)(v). Even though the
service did not strictly comply with the Rule. I was unable to unearth any decision of
this court dealing specifically with Rule 4(1)(a)(v).

[15] It would not be a proper exercise of a court’s discretion to uphold the special
plea in circumstances where there was substantial compliance with the rules. In this
case the defendant had not changed its registered office with the Registrar of
companies.. where else could the plaintiff have served the summons? De Waal JP in
Geldenhuis Deep Ltd v Superior Trading Co (Pty) Limited 1934 WLD 117 at 119
said:

‘Until notification of change of address is given to the Registrar of companies, the office as
originally registered remains the registered office of the company for practical purposes.’(see
also Hardroad (Pty) Ltd v Oribi Onctors (Pty) Ltd 1977 (2) SA 576 (W) at 578H-579G.

[16] In Dawson & Fraser v Havenga Construction 1993 (3) SA 397 (BGD) at 401
B-C, Hendler J said:
‘The failure of Dawson & Fraser (Bophuthatswana) to change the address of the registered
office can in no way be a factor which could be construed prejudicial to it’.
I agree in this regard with the reasoning of the court a quo where it reasoned that
corporations should not be permitted to register an office address where it has no
purpose or business and by so doing, frustrate services of summons and other court
process upon it.

[17] Mr Mullins, for the defendant, conceded that it was enough to serve, for
example, on a secretary employed by an auditor’s firm, where the corporation gave
the auditors firm’s address as its registered office, even though the secretary was not
employed by the corporation. But he contended that in the present case the sheriff
should have affixed the summons on the main door of the premises as provided by
Rule 4(i)(a)(v). Hartzenberg J in Chris Mulder (supra) reasoned that it was preferable
to serve on a person who identifies himself or herself and accept service rather than
by merely affixing the document to a door. And if no ‘one is prepared to accept service,
in that case, service may be effected by attaching it to a door as sub rule (v) of Rule 4(i)
(a)….allows the deputy- sheriff to do’ (my emphasis). Hartzenberg J does not suggest
that service ‘must’ but said ‘may’ be effected.

[18] It is trite that the rules exist for the courts, and not the courts for the rules (see
Republikeinse Publikasie (Edms) Beperk v Afrikaanse Pers Publikasie (Edms) Bpk
1972 (1) SA 773 (A) 783 A-B; Mynhardt v Mynhardt [1986] 3 All SA 197; 1986 (1)
456 (T) also Ncoweni v Bezuidenhout, 1927 CPD 130), where it was pertinently
observed 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. Of course if one is absolutely
prohibited by the Rule one is bound to follow this Rule, but if there is a construction which
can assist the administration of justice I shall be disposed to adopt that construction.’
Courts should not be bound inflexibly by rules of procedure unless the language
clearly necessitates this- see Simons v Gibert Harner & Co Ltd 1963 (1) SA 897 (N)
at 906. Courts have a discretion, which must be exercised judicially on a
consideration of the facts of each case, in essence it is a matter of fairness to both
parties (see Federated Employers Fire & General Insurance Co Ltd v Mckenzie
[1969] 3 ALL SA 424; 1969 (3) SA 360 (A) at 363 G-H).

[19] With the advent of the constitutional dispensation, it has become a
constitutional imperative to view the object of the rule as ensuring a fair trial or
hearing. ‘rules of court are delegated legislation, having statutory force, and are binding on
the court, subject to the court’s power to prevent abuse of its process.’ And rules are
provided to secure the inexpensive and expeditious completion of litigation and are
devised to further the administration of justice (see LAWSA, third Edition Volume 4 –
paragraph 8-10 page 10 et sec) (see also Kgobane & another v Minister of Justice &
another [1969] 3 ALL SA 379 or 1969 (3) SA 365 (A) at 369 F-H). Considerations of
justice and fairness are of prime importance in the interpretation of procedural rules
(see Highfield Milling Co (Pty) Ltd v A E Wormald & Sons [1966] 3 ALL SA 27; 1966
(2) SA 463 (E) at 465 F-G).

Conclusion
[20] In the circumstances I conclude that the approach adopted by the KwaZulu
Natal High Court in the Brangus case (supra) is correct. I also consider the service of
the summons on the defendant on 14 December 2006 to be good and served to
interrupt the running of prescription. The service of the summons complied in
substance with the provisions of Rule 4(1)(a)(v). In my view the plaintiff had by
midnight on 1 January 2007 served the summons upon the defendant claiming
payment of the debt in terms of s 15(1) read together with s 15(b) of the Act.

Therefore the plaintiff’s claim had not prescribed in terms of section 12 of the Act.
Accordingly the court a quo correctly dismissed the special plea with costs.

[21] In the result the appeal is dismissed with costs.

________________________

J B Z SHONGWE

JUDGE OF APPEAL

LEACH JA:
[22] I have read the judgment of my colleague Shongwe JA, but although I agree
with his final conclusion that the appeal should be dismissed I have reached that
conclusion by a somewhat different and more direct route.

[23] It is common cause that the summons was served on 14 December 2006 at
Portion 64, plot 3, Melodie Farm, Hartebeespoort district. This was the registered
address of the appellant, a close corporation. The sheriff recorded in his return that
he had served the summons on ‘Mr Pretorius . . . a person not less than sixteen
years of age, by exhibiting to him the original, by handing him a copy thereof and by
explaining to him the nature and exigency thereof.’ The allegations set out in the
return were not disputed and, as s 36(2) of the Supreme Court Act 59 of 1959
provides that a sheriff’s return ‘of what has been done upon any process of the court,
shall be prima facie evidence of the matters therein stated’, the return can be
accepted as an accurate account of what occurred.

[24]   This appeal turns solely on whether service as reflected in the return is to be
construed as valid service upon the appellant. If it is, the appellant’s special plea of
prescription is without merit and was correctly dismissed by the court a quo. If it was
not, it did not interrupt the running of prescription and the appeal must succeed. On
this the parties were ad idem.

[25]   Uniform rule of Court 4(1)(a)(v) provides that any service of process may be
effected on a corporation company ‘by delivering a copy to a responsible employee
thereof at its registered office or its principal place of business within the court’s
jurisdiction, or if there be no such employee willing to accept service, by affixing a
copy to the main door of such office or place of business, or in any manner provided
by law’.

[26]   Although the appellant had earlier conducted business at its registered
address, by the time service took place it had long since ceased all business
activities, was dormant and had no employees or representatives on the premises.
Mr Pretorius, upon whom service was effected, was employed not by the appellant
but by a different enterprise. The appellant therefore argued that as there was no
employee of the appellant upon whom service could be effected at its registered
office, service on Mr Pretorius was ineffective and the sheriff ought to have affixed
the summons to the main door – and, as it was not so affixed, the service was
invalid.

[27] In considering this argument, it must be remembered that even where
peremptory formalities are prescribed by statute, not every deviation from the literal
prescription results in nullity.  The question always remains whether, in spite of the
defect, the object of the statutory provision has been achieved ─ see Unlawful
Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) para 22. In
this regard, it is important to note that s 25 of the Close Corporations Act 69 of 1984
obliges a close corporation to have a reregistered address while s 25(2)(b) provides
that ‘subject to applicable provisions in respect of such service in any law’, process

which is required to be served upon a corporation may be served by being delivered
to the corporation’s registered office or by being sent by registered post to the
registered office or postal address of the corporation. The clear intention of the
legislature in providing for this was to ensure that a close corporation would have a
known address at which process could be served, inter alia, to ensure that a third
party who might wish to sue it knows where to serve and does not have to end up
chasing ghosts in a situation such as this where the corporation has become
dormant.

[28]   Essentially service at the registered address of a corporation is sufficient to
amount to service on the corporation. As was correctly conceded by counsel for the
appellant, as a regular practice the courts accept as effective the service of a
summons upon an employee of a firm of accountants or auditors whose office is
used as a corporation’s registered address, but sought to distinguish those cases
from the present on the basis of a link between the accountants or auditors and the
corporation which is missing in the present case. In my view this misses the point.
The importance is the fact that service at the registered address of the corporation,
even if not on one of its employees, is regarded as substantial compliance with the
rules.

[29] In the present case the summons was delivered to a responsible person at
the registered address of the appellant. If no-one had been present on the premises,
there would have been strict compliance with the rule had the summons been affixed
to the door. In my view the action of handing it to a responsible person at the
premises, after explaining the exigencies of the matter, amounted to substantial
compliance with the rule. It resulted in the summons being delivered to the registered
address of the appellant, that being the purpose not only of the rule which authorises
the fixing of a summons to the door of the premises, but also of s 25 of the Close
Corporations Act.

[30]   The court a quo expressed the view, with which I agree, that a corporation
‘which fails to ensure that there is a responsible person present at the premises
appointed as its registered address, does so at its peril and should not be allowed to
bemoan its lot should the process not come to its attention’. Be that as it may, there
was substantial compliance with the rule relating to service upon a corporation, and
the high court correctly dismissed the special plea.

[31]    For these reasons I agree the appeal should be dismissed with costs.

____________________
L E LEACH
JUDGE OF APPEAL

APPEARANCES
For Appellant:

JF Mullins SC
Instructed by:
Savage Jooste & Adams, Pretoria;
Webbers, Bloemfontein

For Respondent:

B Joseph

Instructed by:
Ronald Bobroff & Partners Inc,
Johannesburg;

Matsepe Inc, 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:
31 May 2013
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.
* * *
ARENDSNES SWEEFSPOOR CC v DALIA MARCELLE BOTHA
The SCA today dismissed with cost an appeal by the appellant, Arendsnes Sweefspoor CC,
against a ruling of the North Gauteng High Court (Pretoria) which found that a service of a
summons at the registered office or registered address of the corporation was substantially
compliant with Rule 4(1)(a)(v) of the Rules of Court and therefore good enough to interrupt
prescription.

The respondent, Ms Dalia Marcelle Botha was injured when she fell from one of the cable
cars operated by the appellant. She sustained bodily injuries and sued the appellant for
damages.

When serving the summons on the appellant, the sheriff was informed that the appellant’s
businesses had closed down about a year ago. The appellant was no longer doing business on
the said premises. Ms Botha’s attorneys instructed the sheriff to serve the summons on a
willing and responsible person found on the premises, even though that person was not
employed by the appellant. The reason being that the appellant, when closing down the
business did not change its registered office or registered address with the Registrar of
Companies.

The failure by the appellant to change its registered office or registered address with the
Registrar rendered it impossible for the respondent to strictly comply with Rule 4(1)(a)(v).
The appellant was obliged in terms of section 25(1) of the Close Corporation Act 69 of 1984
to have a registered office or registered address to which all notices may be address or
delivered.

Rule 4(1)(a)(v) regulates the service of court processes in the case of service on a corporation
or company. It also provides that if there are no employees willing to accept service, by
affixing a copy to the main door of such office or place of business.

This court ruled that even though the summons was not strictly served in terms of Rule
4(1)(a)(v), that is by handing it to an employee of the appellant or by affixing a copy to the
main door of the office, it was nevertheless substantial compliance with the rule as the
premises were the only registered office or registered address available.

Therefore such service is good and proper and does interrupt prescription.