Summonses chaos

2009-11-07 00:00

HOW many incorrectly served summonses for South Africa’s growing number of debt defaulters (see box) are ending up in gutters and dustbins?

That’s the question being asked by Pietermaritzburg resident and businesswoman Karren Hodgkins after she recently received two separate summonses in two days, neither of which were meant for her or for anyone living on her property.

One summons, for her ex-husband Chris Hodgkins, was delivered on a Friday afternoon, while the other — for a neighbour down the road — was jammed into her gate at the weekend.

Hodgkins said the sheriff pressured her domestic worker to accept the summons for her ex-husband, although he had left the country in July, ostensibly to take up a job in Abu Dhabi.

Her foermer husband hasn’t lived in her Pietermaritzburg home since May.

In July, impresario Hodgkins’s sudden departure drew the attention of the press because it was alleged that he had skipped the country with the proceeds of the Concert in the Park in June and left his business partners with a number of debts to settle.

Hodgkins told The Witness she is not in contact with her ex-husband.

The second summons was affixed to Hodgkins’s gate some time at the weekend.

“On Sunday, after a whole weekend of wet weather, I noticed a soggy piece of paper stuck into the gate and assumed it was an advertising flyer.”

It turned out to be a summons for someone who lived nearby. Attached to it was a credit agreement setting out details of her neighbour’s indebtedness.

“There was no envelope, so anyone picking up that summons would know that person’s personal business.

“Why leave relatively confidential documents in the pouring rain?

“I find the whole process quite disconcerting,” said Hodgkins. “You would assume that if someone had left the country, there would be a process in place that would place that on record.”

Hodgkins said she contacted both firms of attorneys responsible for issuing the summonses.

“They were defensive and quite firm about the fact that the correct procedure had been followed,” she said.

“But I feel they are copping out. In this economic climate, there must be a lot of summonses being served.

“They may be sticking to the letter of the law when it comes to serving summonses, but how many are going to the right place?”

Cape Town attorney Graham Bellairs, who is chairman of the magistrate’s court standing committee of the Law Society of South Africa, admitted that the two cases of service of summons by the sheriffs are “concerning”.

He said that in the case of service on Hodgkins’s ex-husband, the sheriff should not have effected the service in the way he did, except if he had other information to the effect that the ex-husband was in fact at the given address. “The sheriffs have a torrid time where they are often given misinformation from those present at service addresses.”

Bellairs said a sheriff is obliged to try to effect personal service on a defendant named in a summons before simply pinning it to the principal door of a residence or place of business.

According to the “Rules of the Magistrate’s Court”, a sheriff can affix a copy of the summons to the outer door, security gate or post box of a residence or business where a person to be served keeps the place closed in order to avoid service. The rules also say that where the sheriff is unable “after diligent search” at the residence or place of business to find the person on whom the summons should be served, the document can be pinned to the door or given to a person over the age of 16.

Bellairs said that in his experience, the incidence of default judgments granted on the basis of incorrect service of summons is “relatively small”.

No comment from the South African Board of Sheriffs or the Department of Justice had been received at the time of going to press.

Cape Town attorney Graham Bellairs, who is chairman of the magistrate’s court standing committee of the Law Society of South Africa, admitted that the two cases of service of summons by the sheriffs are “concerning”.

He said in the case of service on Hodgkins’s ex-husband, the sheriff should not have effected the service in the manner he did, except if he had “other information” to the effect that the ex-husband was in fact at the given address. “The sheriffs have a torrid time where they are often given misinformation from those present at service addresses,” said Bellairs.

Bellairs said the sheriff is obliged to try to effect personal service on a defendant named in a summons before simply pinning it to the principal door of a residence or place of business.

According to the “Rules of the Magistrate’s Court”, a sheriff can affix a copy of the summons to the outer door, security gate or post box of a residence or business where a person to be served keeps the residence of business closed in order to avoid service. The rules also say that when the sheriff is unable “after diligent search” at the residence or place of business to find the person on whom the summons should be served, the document can be pinned to the door or given to a person over the age of 16.

Bellairs said in his experience as an attorney the incidence of default judgments granted on the basis of incorrect service of summons is “relatively small”.

No comment from the South African Board of Sheriffs or the Department of Justice had been received at the time of going to press.

According to figures released last week by Stats SA, the number of civil summonses issued for debt between June and the end of August increased by 16,1% compared with the same period last year.

The major contributors to this increase are civil summonses issued in respect of promissory notes and other acknowledgments of debt, including credit card debt (5,7%), money lent (4,6%), goods sold on an open account (2,4%) and “other debts” (2,2%).

The total number of civil judgments for debt for the three months ending August 2009 increased by 17,3% compared with the same period last year, with the main drivers being judgments in respect of money lent (10,3%) and professional services (3,3%).

During August 2009, 67 599 civil judgments for debt amounting to R656,3 million were recorded.

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