A Position Paper by the South African Board for Sheriffs
PROBLEM STATEMENT:
When a defendant has left the address reflected on the face of a summons, the document is returned by the sheriff to the plaintiff or its attorney without establishing the forwarding address of the defendant, resulting in additional costs for tracing agents and delay in the civil process as the sheriff is compelled to submit a return of non-service.
This paper does not deal with the service of process in respect of domicillium citandi instances,.
The legal process in terms of current legislation
1. A sheriff may only proceed to the address as given on the face of the summons and attempt service at such address.
2. At this address a diligent search must be done to find the defendant personally, failing which it must be established whether the defendant is still domiciled at this address. Should this be confirmed, the summons must be served on any person also resident or employed at the address as indicated in terms of Rule 9 of the Magistrates Courts Act or Uniform Rules 4[1] and 4 [2] of the High Court.
3. This service shall be done strictly in terms of the foregoing and specifically at the address reflected on the face of the summons.
4. Should no person be found at the address the options in terms of Rule 9 [5], [6] and [7] may be implemented which allows the sheriff to affix a process to the outer or principal door of the building.
5. When it becomes clear to the sheriff that the defendant has left the address either by verbal information received from a new occupant or a person that seems to know the identity of the current occupiers and[or knows the whereabouts of the defendant, the document shall be returned to the instructing party as a non-service
In practice sheriffs will enquire from those present where the defendant has moved to and reflect such information on the return of service. The suing party then has to find and confirm the new address. The sheriff is however not compensated for this even though the information is supplied and acted upon by the suing party.
In some cases when the sheriff is informed of the new address and finds that it still remains within his /her jurisdiction and service area, the sheriff will go to the new address and try to serve the process on the defendant at this address
Should it not be possible to serve personally, or upon finding that the information given about the new address was incorrect the sheriff would not be able to recover from the suing party such additional cost as no such instruction to go to this new address was given by the suing party as it was taken on the personal initiative of the sheriff.
In some cases it has been found that Magistrates refuse to give judgment based on service at another address and the suing party then refuses to pay the additional attempted charges and even interpret this " own initiative of the sheriff' as misconduct. [Failing to follow instructions],
Sheriffs are not allowed to " trace: defendants as the S A Board for Sheriffs has indicated some years ago that a sheriff may not "for gain" provide tracing facilities as it was seen as information obtained by way of a legal instruction and it should not benefit financially from it.
The above therefore explains why sheriffs do not follow-up on the movements of defendants and do not attempt to serve at possible new addresses pointed out by third parties.
Sheriffs have on many occasions suggested that this be allowed, as it would drastically clamp down on time and cost wastage. The sheriff is further ideally positioned at the time when the moving of the defendant is alleged to "trace" the new address and serve without the current beaurocracy that is wasting time and increasing costs.
The return of the document to the suing party, the tracing, the subsequent re-issue of the amended address by the clerk of the court and the return of the summons to the sheriff for service at the new address may take in excess of four to five weeks to perform and may cost up to R500.00 and more in tracing charges.
WHAT IS NEEDED TO FACILITATE SUCH IMPROVED SERVICE DELIVERY BY SHERIFFS?
1. The following wording should be added to the address of the defendant in any summons or document issued.
Example: Mr. J February Defendant of Nr 123 Main Road Claremont, Cape Town, and or any other address as the debtor may be found at and confirmed by the sheriff in the return of service
2. A standard tariff for tracing should be added to Table C part II and the High Court counterpart of the tariff schedule of sheriffs.
3. The S. A. Board for Sheriffs should re-visit and amend its directive in regard to the tracing of defendants by sheriffs.
4. The sheriff should be required to indicate in full detail on the return of service the reason for the service at the changed address and indicate in detail all information when service is effected on another person and that such person indicate and confirm to the sheriff that the defendant does in fact live at the new address.
5. Should the traced address fall outside of the serving sheriffs' service area, the document should be forwarded to the relevant sheriff for service. This should be done with the verbal but ideally written consent of the suing party.
6. In the latter situation the tracing sheriff [first] shall be compensated for the tracing only if the new address proves to be correct.
The sheriff who finds the defendant at the address when this information is acted upon, need not spend any further costs to go to the "old address" of the defendant, and can perform this function at a reduced price compared to what tracing agents currently charge.
The average rate for tracings varies from R200.00 to R500.00 depending on the situation. It is suggested that sheriffs be allowed to set a tracing fee in the schedule of R 175.00.
Most importantly, the public can contact the SABFS as the regulatory body for sheriffs, should there be any suspicion of irregularity on any part of this new proposed procedure. Presently, the public do not have this recourse in respect of tracing agents.
CONCLUSION
It is clear that we are currently faced with a situation which was not anticipated fully by the drafters of the law at the time these matters were legislated. Service delivery will definitely be improved and unnecessary costs avoided should we amend the stated provisions as suggested.
It would be beneficial for the defendant and the plaintiff as well as improve access to effective justice should this be allowed. The Sheriff is capable and willing to perform this function and has the knowledge, experience and relationship with communities which will undoubtedly prove to be beneficial to this new proposed practice.