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Proposed changes to rules of service

 

The rules and processes of serving divorce documents. How those rules and processes can affect divorce proceedings. My proposals on how the processes can be improved and made more efficient.

signing of court documents before service of notice

Service on the other side is one of the major aspects of the whole divorce procedure. A divorce summons has to be physically served on the defendant in person in order for there to be a valid service.

Any process thereafter does not, in terms of the Court Rules, have to be served by the sheriff of the court. A notice of intention to defend, plea or counterclaim, for example, does not need to be served by the sheriff. It only needs to be served by posting it by registered mail or by hand delivery to the other side. The same applies with the notice of set down of the court date.

I have never understood why the divorce summons must be served by physical service by the sheriff, whilst it is not a requirement for the notice of set down of the court date, where posting by registered mail suffices as a valid service. Surely the court has to be satisfied beyond reasonable doubt that the other side is aware of the court date before granting a final divorce. The only way that the court can be so satisfied is if there is a formal return of service by the sheriff in the court file.

I propose that the notice of set down of a divorce matter needs to be physically served on the other side by the sheriff of the court, just like the divorce summons. If it is served by posting by registered mail, the party who is meant to be notified of the date may not have collected the set down at the post office for some or other reason and the divorce something goes through without both parties being aware of the court date.

There are so many applications for rescission or variation of a divorce order these days at the courts. The usual argument of the applicant in these matters is that he/she was unaware of the court date when the divorce was granted, sometimes because the set down sent by registered mail was not collected at the post office. Our divorce courts already have such a backlog, and simply do not have the time to entertain these applications. If service of the set down is required to be served personally on the other party by the sheriff, there would be far less applications for variation/rescission of the divorce order.

On the topic of service, I am currently busy with an interesting case. I am representing a fellow attorney in his divorce matter. He had an attorney before me. His wife’s attorney had served a Rule 43 Application on him but not a divorce summons. This is allowed in terms of the Court Rules.

My client was adamant that he wanted to go ahead with the divorce while the Rule 43 was still pending. We attempted to serve the summons personally on the wife but she did not stick to appointments with the sheriff. The summons was then sent to the domestic worker. The other side wanted to serve our client first with a summons they claimed had been drafted first. There is now a dispute as to if service on the domestic worker was a valid service. In my opinion it was.

I believe that service of any court date should be by personal service, which will save a lot of time at the courts too in dealing with rescission applications where a party claims they were not aware of a court date.

article written by Cape Town divorce attorney, Peter M Baker

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