HOW TO SERVE LEGAL PAPERS IN SOUTH AFRICA

This article will guidance on How To Serve legal papers in South Africa. Unlike many other parliamentary democracies, South Africa’s president is also the country’s chief executive, and their position depends on Parliament’s support. It is common for the National Assembly to elect one of its members to be president after each parliamentary election; thus, the President serves a five-year term. A president can only hold office for a maximum of two terms.  Each department has a cabinet member who serves as a deputy and is appointed by the president. A vote of no confidence in the President and Cabinet by the National Assembly is an option.

There is no official capital city in South Africa.  Each city has its own three branches of government. There are four capitals of government: Parliament in Cape Town, the President and Cabinet in Pretoria, and the Supreme Court of Appeal in Bloemfontein. The Constitutional Court of South Africa is located in Johannesburg. Pretoria is the location of the majority of foreign embassies in South Africa.

BACKGROUND

The lower house of parliament, the National Assembly, is made up of four hundred members who are elected every five years using a list-based proportional representation system. The upper house, the National Council of Provinces, is made up of ninety members, ten of whom are chosen by each of the nine provincial legislatures.

Legally, South Africa’s Constitution is unquestionable. Roman-Dutch commercial law and personal law, and English Common law, imported from Dutch colonies and British colonization, are the fundamental origins of South African law. The Dutch East India Company introduced Roman-Dutch law to South Africa, the country’s first European-based legal system. It was brought over from Europe before the Napoleonic Code codified European law, and in many respects, it is similar to Scots law. In the 19th century, English common and statute law followed suit. It was only when South Africa’s federation was completed in 1910 that the country’s parliament was established, and it was in this legislature that new laws were made for South Africa.

The court system includes. The High Court, which comprises divisions that act as tribunals of general jurisdiction for certain sectors; the Supreme Court of Appeal; and the Constitutional Court, which is the highest court, comprise the legal system. As defined by South Africa’s Superior Courts Act: the Constitutional Court, the Supreme Court of Appeal, and the High Courts; the lower courts, which include indigenous courts, and other judicial and quasi-judicial bodies established by legislation, as well as other judicial and quasi-judicial bodies established by legislation.

While there are modest differences between High and Magistrate Court processes, it is reasonable to presume that all hearings are conducted similarly, except for any indication to the contrary. Both courts, it’s worth noting, have their own authorizing legislation and South Africa Process Service rules of procedure. According to the law, each court may only hear certain disputes. The regulations specify how such issues should be brought to court, including how to file South Africa Process Service pleadings and deadlines.

Courts in South Africa are referred to as magistrates’ courts. The Magistrates’ Courts Act governs and creates these so-called ‘creatures of statute,’ which have no inherent power. As a result, they are limited to only hearing South Africa Process Service cases that fall within the scope of the Act. The district magistrate’s court and the regional magistrate’s court are the two types of courts. Magisterial districts and regional divisions in the Republic of South Africa each have a magistrates’ court.  Since August 2010, the Regional Court has been able to hear civil cases as well as criminal ones. A magistrate rules over matters at the magistrate’s court, which is led by a Chief magistrate.

Those who preside over the Magistrate’s Court would be recognized as ‘Judges of the Lower Court’ under the provisions of the Seventeenth Constitutional Amendment Bill and would be chosen by the Judicial Service Commission. 

Because the phrase ‘High Court’ implies that there is only one, whereas there are several, each separated into provinces and local divisions, the word is deceptive. This indicates that the High Court has ‘inherent jurisdiction,’ which comes from the common law (although statutory law does modify these powers). High Courts have greater South Africa Process Service latitude than subordinate courts because of their inherent authority. In order to avoid the misuse of the law, inherent jurisdiction will be used, which ultimately serves to ease the administration of justice. There is no longer any inherent jurisdiction in the Republic of South Africa: courts can no longer go beyond the scope of the Constitution’s purview. 

High Court cases are presided over by judges, led by the Judge President, who presides over the proceedings. The office of the Registrar of the High Court is in charge of administration, and its responsibilities are quite similar to those of the court clerk. The Supreme Court of Appeals, based in Bloemfontein, is the highest appellate court in disputes without a constitutional foundation. The President of the Supreme Court of Appeal presides over all proceedings before the SCA. All issues (not simply those that present a constitutional issue) will now be able to be appealed directly from high courts to the Constitutional Court under the provisions of the Seventeenth Constitutional Amendment Bill, making the Constitutional Court the supreme court for all purposes. Appeals from courts having comparable stature to the High Court (such as the Competition Court and the Labour Court) would be added to the SCA’s caseload, but the SCA would remain in place.

DOMESTIC SERVICE OF LEGAL PAPERS

Whether there is a case, what sort of South Africa Process Service action will be pursued, who the person against whom it will be sought is, how much it will cost, and where it will be brought before a court—everything that must happen before a disagreement is submitted to a court. A letter of demand or communication with an opponent may also be part of the South Africa Process Service.

There are a number of things that need to be proven in order for a South Africa Process Service claim to succeed.  As a result, it is an investigation of substantive law that aids in figuring out the best legal South Africa Process Service to use. Breach of contract and damages in delict are two examples. As much detail as feasible should be used to determine the root cause of a South Africa Process Service problem. If a breach of contract is involved, it is important to determine what form of South Africa Process Service violation occurred, such as misrepresentation or mora debitoris. A collection of facts can reveal many avenues of South Africa Process Service action: a claimant may sue for the damage to the vehicle and the loss of income if a breadwinner dies in a car accident.

To use in a court of law, one must first demonstrate that they have the right to sue.  To determine whether or not a certain individual or legal entity may sue and whether or not that individual or legal entity can sue, the plaintiff can only have the right to sue if they could prove that they had a direct and substantial interest in the case under the common law. 

The pleading stage and the trial stage are separated in summons proceedings. A basic summons, a combination summons, and a provisional sentence summons are summonses that can be put forth. There are two types of simple summonses: [A.] those that provide just a statement of the facts and [B.] those that include an explanation of the claim. The High Court’s counterpart of a Magistrate’s Court summons is a simple summons. In contrast, a combined summons is accompanied by a second document that contains the specifics of the claim and is attached to the summons. A combination summons is required in specific circumstances, such as divorce. Using a simple summons at the High Court, on the other hand, is typically only when it is necessary.

A provisional summons allows a creditor who has a liquid document to suit quickly. Many features of temporary summons South Africa Process Service guidelines were found to conflict with constitutional principles in a recent judgment by the Constitutional Court.

Specifically, the Magistrates’ Courts Act lays forth in Rules 5 and 7 what should be included in the summons. These same rules are included in the Uniform Rules of Civil Procedure (Rule 17).  If the plaintiff is not represented by an attorney, the summons is often signed by the plaintiff. In order for a South Africa Process Service document to be issued by a clerk or registrar, it must be stamped and given a case number by the clerk or registrar. 

The regulations of the court dictate both the form and substance of the South Africa Process Service particulars. The foundation of the action and the remedy sought may only be discerned from the specifics of the case. The specifics of the claim, then, lays forth the facts of the case as well as what the plaintiff wants the court to rule on the basis of those facts. In a basic summons, the information is presented in a condensed, one-line format.

Form and content requirements for South Africa Process Service pleadings are outlined in Rule 6 of the Magistrates’ Courts Act and Rule 18 of the Uniform Rules. There must be a different paragraph for each claim, and each claim must be given a sequential number, with each averment appearing in its paragraph. 

The registrar or clerk of the court may serve the summons after it has been issued. The sheriff is responsible for South Africa Process Service. It is common for the attorney to deliver the summons, together with a South Africa Process Service copy for each defendant, to the sheriff, along with any annexures. The South Africa Process Service will be delivered to the defendant by the sheriff. The legislation allows for certain types of South Africa Process services. 

To prove this point, after showing up at the defendant’s residence, the Sheriff must give the defendant a copy of the South Africa Process Service and explain what it means to them. The defendant will often sign the back page of the South Africa Process Service in order to indicate receipt. Assuming he wins, the Sheriff must next provide the attorney with either a return of South Africa Process Service or a return of non-service (if he is unsuccessful).

The Magistrate’s Court and the High Court have rules addressing how documents are served. Some examples are affixing or South Africa Process Service by registered post (only applicable to the Magistrate’s Court). The Magistrate’s and High Court rules provide for South Africa Process Service by substituted service and edictal citation in the event that a party is unable to serve in any of the following customary methods. For example, a party might request that the court give some other service, such as a newspaper article, from the court. Using this method, legal documents may be delivered to a defendant outside the United States. Although the general rule requires that notice of an application be given to the respondent, there may be exceptional circumstances where notice will thwart the object of the application.

There are instances, then, where the circumstances may justify the court dispensing with service.

INTERNATIONAL PROCESS SERVICE IN SOUTH AFRICA

South Africa is not a party to either of the two international services of process treaties, so formal service requires Letters Rogatory.

Letters Rogatory through diplomatic channels is mandated for formal service in all countries that are not parties to an international process treaty. Documents must be sent through diplomatic channels adhering to strict formal diplomatic protocol. The lengthy and expensive procedures are not to be confused with the procedures of The Inter-American Treaty on Letters Rogatory, which does not go through the diplomatic channel, even though these methods of service share a confusingly similar name.

The Hague Service Convention codifies the service of process by registered mail and agency internationally. Additionally, the treaty allows for service of process by a Central Authority (often the Ministry of Justice) in Convention nations upon receipt of a request on form USM-94, accessible at any United States Marshal’s office. The treaty’s text is self-explanatory, but take note of the reservations and declarations issued by each nation upon membership. Certain governments expressed misgivings about various modes of service. The Convention procedure should be followed in all signatory nations.

As stipulated in Article 3 of the Convention, the completed request form and papers to be served, together with two copies of each, shall be submitted directly to the foreign central authority. State law specifies the person authorized to execute service in matters pending in state courts. Requests pending in state courts should declare that they are being made in accordance with Rule 4(c)2(A) of the United States Federal Rules of Civil Procedure and any applicable state legislation. 

The Convention does not require the translation of papers to be delivered by registered mail. Courts have determined that Article 5’s translation obligation applies only to papers served by a foreign Central Authority, not to direct postal service.

OUR PROCESS

Documents can be faxed at (800) 296-0115, emailed ps@undisputedlegal.com, or uploaded to our website. We do require prepayment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; All documents will be received by our receptionist.

DOMESTIC COVERAGE AREAS:

Alaska | Alabama | Arkansas | Arizona | California | Colorado | Connecticut | District of Columbia | Delaware | Florida | Georgia | Hawaii | Iowa | Idaho | Illinois | Indiana | Kansas | Kentucky | Louisiana | Maryland | Massachusetts | Maine | Michigan | Minnesota | Mississippi | Missouri | Montana | North Carolina | North Dakota | Nebraska | New Hampshire | New Jersey | New Mexico | Nevada | New York | Ohio | Oklahoma | Oregon | Pennsylvania | Rhode Island | South Carolina | South Dakota | Tennessee | Texas | Utah | Virginia | Vermont | Washington | West Virginia | Wisconsin | Wyoming

INTERNATIONAL COVERAGE AREAS:

Albania | Andorra | Anguilla | Antigua | Argentina | Armenia | Australia | Austria | Azerbaijan | Bahamas | Barbados | Belarus | Belgium | Belize | Bermuda | Bosnia and Herzegovina | Botswana | Brazil | British Honduras | British Virgin Islands | Bulgaria | Canada | Cayman Islands | Central and Southern Line Islands | Chile|China (Macao) | China People’s Republic | Colombia | Costa Rica | Country of Georgia | Croatia | Cyprus | Czech Republic | Denmark | Dominican Republic | Ecuador | Egypt | Estonia | Falkland Islands and Dependences | Fiji | Finland | France | Germany | Gibraltar | Gilbert and Ellice Islands | Greece | Guernsey | Hong Kong | Hungary | Iceland | India | Ireland | Isle of Man | Israel | Italy | Jamaica | Japan | Jersey Channel Islands | Jordan | Kazakhstan | Korea | Kuwait | Latvia | Lithuania | Luxembourg| Malawi | Malaysia | Malta | Mauritius | Mexico| MonacoMontenegro | Montserrat | Morocco | Namibia | Netherlands | New Zealand |Nicaragua | Norway | Pakistan | Panama | Paraguay | Peru | Philippines | Pitcairn |Poland| Portugal | Republic of Moldova | Republic of North Macedonia | Romania |Russian Federation | Saint Vincent and the Grenadines | San Marino | Saudi Arabia | Serbia | Seychelles | Singapore| Slovakia | Slovenia | South Africa | Spain | Sri Lanka | St. Helena and Dependencies | St. Lucia | Sweden | Switzerland | Taiwan | Thailand | Tunisia | Turkey | Turks and Caicos Islands| UkraineUnited Kingdom of Great Britain and Northern Ireland | Uruguay | US Virgin Islands | Uzbekistan | Venezuela | Vietnam

OFFICE LOCATIONS

New York: (212) 203-8001 – 590 Madison Avenue, 21st Floor, New York, New York 10022
Brooklyn: (347) 983-5436 – 300 Cadman Plaza West, 12th Floor, Brooklyn, New York 11201
Queens: (646) 357-3005 – 118-35 Queens Blvd, Suite 400, Forest Hills, New York 11375
Long Island: (516) 208-4577 – 626 RXR Plaza, 6th Floor, Uniondale, New York 11556
Westchester: (914) 414-0877 – 50 Main Street, 10th Floor, White Plains, New York 10606
Connecticut: (203) 489-2940 – 500 West Putnam Avenue, Suite 400, Greenwich, Connecticut 06830
New Jersey: (201) 630-0114 – 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
Washington DC: (202) 655-4450 – 2200 Pennsylvania Avenue, 4 Fl East, Washington DC 20037

for assistance serving legal papers in South Africa

Simply pick up the phone and call Toll-Free (800) 774-6922 or click the service you want to purchase. Our dedicated team of professionals is ready to assist you. We can handle all your process service needs; no job is too small or too large!

Contact us for more information about our process serving agency. We are ready to provide service of process to all our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington D.C.

“Quality is never an accident; it is always the result of high intention, sincere effort, intelligent direction, and skillful execution; it represents the wise choice of many alternatives”– Foster, William A

Sources

1. The African National Congress (ANC) won 57.5 percent of the vote and 230 seats in the most recent election, which was held on May 8th, 2019, while the Democratic Alliance (DA), the main opposition, won 20.77 percent of the vote and 84 seats. EFF, founded by Julius Malema, the expelled ANC Youth League President, won 10.79 percent of the vote and 44 seats in South Africa’s parliamentary elections. Since the end of apartheid, the ANC has been South Africa’s governing political party.

2. ‘The seat of Parliament is Cape Town, but an Act of Parliament enacted in accordance with section 76(1) and (5) may determine that the seat of Parliament is elsewhere,’ reads the fourth chapter of the South African Constitution.

3. According to the Magistrates’ Courts Act, section 4(3), any process issued in a magistrates’ court is valid throughout the nation.

4. According to the Magistrates’ Courts Act, section 4(3), any process issued in a magistrates’ court is valid throughout the nation.

5. The following were the specifications:

If the plaintiff was to succeed, he or she had to have a substantial stake in the outcome, not just a technical one; the interest had to be current, not hypothetical; and the interest had to be real, not theoretical.

6. Debt or liquidated demand claims are often handled via simple summons.

7. A first judgment against the debtor will be issued if he cannot contest the legitimacy of the liquid document. The debtor may only join the merits of the case after he has paid the judgment debt as security.

8. What to find on the summons is as follows:

  1. section 109 notification; 
  2. section 57,
  3. 58 notification; 
  4. section 65A and 65D notification; 
  5. the address at which the plaintiff will be served with all process; 
  6. section 59 notification; 
  7. section 65A and 65D notification.
  8. A signature, citations of parties, the averment of jurisdiction, particulars of Claim, and a petition are all included in the affidavit.

9. There must be a title, an explanation of the claim; jurisdiction; a cause of action; and an appeal.

New Magistrates’ Court Rule 6 as well as High Court Rule 18 detail particular requirements for various types of proceedings, including Damages, contractual issues, and marital issues are all included in this.  The pleading will be erroneous if these guidelines are not followed.

10. Before the introduction of the new Magistrates’ Court Rules, a defendant had to send a request to the plaintiff in accordance with Rule 16 of the Magistrates’ Courts Act. Rule 16 has been superseded by Rule 15, which pertains to a declaration in the High Court. Unlike a combined summons, a declaration is a distinct document in which the Plaintiff must detail the specifics of his claim.

11. An applicant may contend, for example, that the respondent is in wrongful possession of the applicant’s motor vehicle and has threatened to destroy it in the event of the applicant’s proceeding to court for its recovery. In such a case, the applicant would contend that having received notice of the application, the respondent might very well destroy or dispose of the vehicle without a trace before the applicant obtains an order from the court for the return of the vehicle. The applicant will accordingly seek an order on an interim basis, directing that, pending the determination of the application, the vehicle be preserved.

12. U.S. Embassy Pretoria

877 Pretorius Street, Arcadia

Pretoria 0083

South Africa

Telephone: +(27)(12) 431-4000 / 012-431-4000

Fax: +(27)(12) 431-5504 / 012-431-5504

The U.S. Embassy in Pretoria does not provide consular services to the public.

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Email: ACSJohannesburg@state.gov

Consulates

U.S. Consulate General Johannesburg

1 Sandton Drive (opposite Sandton City Mall)

Johannesburg 2196

South Africa

Telephone:+(27)(11) 290-3000 / 011-290-3000 (Monday – Thursday: 8:00 a.m. to 5:00 p.m.; Friday: 8:00 a.m. to 12:00 p.m.)

Emergency After-Hours Telephone: +(27) 79-111-1684 / 079-111-1684 (from within South Africa)

Fax: +(27)(11) 884-0396 / 011-884-0396

Email: ACSJohannesburg@state.gov

U.S. Consulate General Cape Town

2 Reddam Avenue, West Lake 7945,

Cape Town, South Africa

Telephone: +(27)(21) 702-7300 / 021-702-7300 (from within South Africa)

Emergency After-Hours Telephone: +(27) 702-7300 / 079-111-0391 (from within South Africa)

Fax: +(27)(21) 702-7493 / 021-702-7493 (from within South Africa)

Email: americanscapetown@state.gov

U.S. Consulate General Durban

303 Dr. Pixley KaSeme Street (formerly West Street)

31st Floor Delta Towers

Durban 4001

13. USC Title 22 Foreign Relations, Chapter I Department of State, Sec 92.54.

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