High Court rejects Nedbank's vehicle debt collection method as legally insufficient

The court has rejected an application by Nedbank in four matters in which the bank sought to recover arrears from vehicle owners by default judgment, but the documents notifying the owners of court proceedings were affixed to either the doors or the gates of their domicilium addresses.

A domicilium address is the physical address chosen by a party for the formal delivery of legal notices.

The Western Cape High Court said affixing to a door or gate without demonstrating how it would reach the defendant did not meet the legal requirements.

The court held the view that the amended Uniform Rules of Court do not refer to service of a summons by simply affixing it somewhere on the premises of the defaulter.

In one matter where a defendant fell into arrears of more than R75,000 regarding the payment of his Volkswagen Tiguan, the summons was left on a door to a house believed to be that of the vehicle owner after the house was locked.

The other three cases were similar as the Sheriff found no one home and left the legal documents either on a door or the gate to the premises.

The question before the court was whether this was a legally sound way of alerting the owners of the pending applications they were facing and whether the matters could proceed in their absence.

In their submissions, counsel for the bank stated that the amended rule allows for service by leaving a copy at the domicilium and that service by affixing at the domicilium address complies with the rule for effective service.

The court remarked that prior to the amendment to the service rule, service of a legal document could be affected by delivering a copy to a person older than 16 at the chosen address.

Following the latter amendment, this rule was substituted by adding a provision that, provided no person is present at the address, the Sheriff may leave a copy at the address.

The court noted that although the amendment makes it discretionary on where the Sheriff may leave a copy, it follows that it may not merely be abandoned.

“Some level of responsibility is required from the Sheriff. Proper service envisages that the Sheriff officially delivers the process to the defendant in a clearly prescribed manner that ensures that the defendant is formally notified, understands the claim, and has a fair chance to respond to the claim before a default judgment is applied for by the plaintiff,” the court said.

It explained that the purpose of service is firstly to notify the person intended to be served of the nature and contents of the document and to return to the court proof of such service in the manner prescribed by law.

The court said the rule does not make reference to service by simply “affixing” it to something at the property, and there is nothing to prove that the legal documents came to the attention of the defendants.

It turned down the bank's application for summary judgment and said nothing prevents the bank from seeking alternative service of the documents.

Cape Times