Written by Samantha Bull
January 2023

In order to serve documents on the relevant party in your legal matter, you initially need to determine where the person resides, or, in other words, what their domicilium address is, or where the person works. Consequently, the question arises: What do you do if you do not know the defendant’s or respondent’s whereabouts in your legal matter? This article will focus specifically on service in a divorce action.

WHAT IS THE INITIAL STEP IN DIVORCE PROCEEDINGS?

The sheriff of the court, which acts as “the arms of the court on the ground”, needs to serve the divorce summons on the defendant personally in a divorce application. In other words, the sheriff needs to hand deliver the documents to the husband or wife, who is the defendant in the divorce.

WHAT STEPS ARE AVAILABLE TO THE APPLICANT IF THEY DO NOT KNOW THE ADDRESS OF THE DEFENDANT?

Where the party that is instituting the divorce does not know the exact whereabouts of the other party – in other words, they do not know where their husband or wife currently resides – the applicant may apply to court for either a Substituted Service or an Edictal Citation.

WHAT IS SUBSTITUTED SERVICE?

If you need to issue a divorce summons in South Africa and you know that your spouse is located somewhere in South Africa but you do not know the exact location of your spouse, you can bring an application for Substituted Service.

HOW DO I APPLY FOR SUBSTITUTED SERVICE?

The court will grant the Application for Substituted Service if the applicant can prove that they have conducted a thorough investigation to determine their spouses’ whereabouts, including the steps they have taken to determine their spouses’ whereabouts and prove that the method of service you have chosen is the most certain way that the application will come to the attention of the defendant.

The discretion then lies in the hands of the court to determine the most appropriate means of service, which depends on the facts of each matter. Examples of alternative means of service include, but are not limited to:

  • publication in a newspaper;
  • service on family members or friends; and
  • service through fax or email.

WHAT IS AN EDICTAL CITATION?

When you reside in South Africa and you know with certainty that your spouse resides outside the borders of South Africa, regardless of whether you know your spouse’s exact residential or work address, you will need to bring an application to the court for an Edictal Citation if you wish to proceed with your divorce.

Edictal Citation allows the applicant to ask the court for permission to serve the divorce summons in an alternative manner instead of serving the summons personally, as is required in divorce actions.

HOW DOES AN EDICTAL CITATION AFFECT THE SERVICE OF SUMMONS?

A summons must ordinarily be served on the defendant personally. If the defendant’s exact whereabouts are unknown to the plaintiff, the court will need to be of the opinion that service will be done correctly by an official of the court in a foreign country or in another manner in order to ensure a real prospect that service will bring the divorce summons under the spouse who is residing overseas’ attention.

In instances of an Edictal Citation, this will give the authority for service to be served via the Sheriff, or in alternative countries, it is known as a “service processor” or a solicitor.

WHAT IS THE DIFFERENCE BETWEEN A SUBSTITUTED SERVICE AND AN EDICTAL CITATION?

In the case of Substituted Service, the applicant is under the impression that their spouse resides in South Africa, while with an Edictal Citation, the applicant suspects that their spouse does not reside within the borders of South Africa.

WHAT OTHER MEANS OF EFFECTIVE SERVICE WILL BE CONSIDERED BY THE COURT?

The court can make any order that they deem fit, and service can therefore be affected using electronic technology, which includes the use of social media.

In the matter of CMC Woodworking Machinery, Judge Steyn J stated that “changes in the technology of communication have increased exponentially, and it is therefore not unreasonable to expect the law to recognise such changes and accommodate them.”

He further stated that “Courts, however, have been reluctant to acknowledge and adapt to all the aforesaid changes, and this should therefore be understood in the context that courts adhere to established procedures in order to promote legal certainty and justice.”

The judge in the aforementioned matter stated that the applicant must prove to the court that the service in the specific way they are applying for is warranted. Therefore, there should be a real prospect that the summons will be brought to the defendant’s attention.

CONCLUSION

It is imperative to note that the court will ensure that it is satisfied when allowing for service to be affected in a matter that is different from ordinary service and in a manner that will allow the defendant to become aware of the proceedings instituted against them. The law in South Africa has adapted and makes provisions for service by way of Substituted Service and Edictal Citation.

Should you require assistance with applying for a Substituted Service and or Edictal Citation, contact one of Burger Huyser Attorneys’ legal experts to schedule an appointment.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE