Motloung and Another v The Sheriff, Pretoria East and Others - (26 Mar 2020)

Failure of a Registrar to sign a summons is susceptible to condonation

Motor Vehicles

The crisp issue in present appeal is whether a summons which has not been signed by the registrar of the court is a nullity or a defective pleading which is condonable under Rule 27(3) of Uniform Rule of Court. There are conflicting decisions of two divisions of the High Court on the issue. In Noord-Kaap Lewendehawe Koöp Beperk v Lombaard, it is held that such a summons is a nullity and not susceptible of condonation. In Chasen v Ritter, it is held that, the absence of the signature of a registrar could be condoned.

The Appellants were involved in a motor vehicle collision on 15 January 2007. They instructed their attorney to institute action against the Road Accident Fund (the RAF) for damages arising from the collision. A summons was prepared and taken to the Registrar of the Gauteng Division of the High Court, Pretoria. The Registrar allocated a case number and stamped the summons. The stamp contained the date on which he processed the summons, his designation as Registrar and his name, BI Ankowitz. The summons was returned to the attorney for service. It later emerged, however, that the Registrar had not signed the summons. The Appellants’ attorney sent the summons to the respondent for service. The respondent refused to serve it. He took the view that ‘only once a summons is signed by the Registrar constituted as a court process’. He contended that, the summons was a nullity and did not amount to court process and that he was accordingly not obliged nor permitted to serve it.

The wording of Rule 17(3)(c) requires two distinctive actions of registrars. They are required to sign and issue a summons. The use of the word ‘and’ does not convert these into a single action as appears to have been the reasoning in the court of first instance. All that it does is make the word ‘shall’ applicable to both actions. Both are peremptory in the context of Rule 17(3). Because the rule distinguishes between two specific and separate acts required of the registrar, they cannot amount to the same thing. This must mean that, factually, one can be done and not the other. A summons can be signed without it being issued. A summons can also be issued without it being signed.

Overly technical approaches to hinder the courts deciding of genuine disputes between parties are to be strongly discouraged. The need for condonation to show good cause allows for a consideration of prejudice. If courts are to err at all, they should do so in finding that, irregularities are susceptible of condonation rather than being necessarily visited with nullity.

The present matter clearly falls within the ambit of a peremptory requirement whose breach can be condoned under Rule 27(3). Despite not complying with a peremptory provision of Rule 17(3)(c), it is not visited with nullity. It can be condoned. The court of first instance was thus wrong to treat a failure to sign on the same basis as a failure to issue. This also means that the conclusion arrived at in Lombaard is incorrect and that in Chasen correct.

Tags : SUMMONS SIGNATURE PEREMPTORY REQUIREMENT