The duty on litigants to ensure proper service, particularly in the case of urgent applications cannot be gainsaid.   Rule 6(12) of the Uniform Rules of Court permits litigants to bring urgent applications before the court and in such cases, Judges may condone shortened time periods for service and the manner in which such applications are served.  The departure from the ordinary Rules of service will only be condoned depending on the extent to which the Rules for service have been departed from as well as the urgency of the matter. 

In the case of South African Airways SOC v BDFM Publishers (Pty) Ltd and others [2016] 1 All SA 860 (GJ), South African Airways ("SAA"), a public company and organ of state brought an urgent application against the City Press Newspaper and other publishers ("respondents") to interdict the publication of a document which had been prepared by SAA's General Manager for Legal Risk and Compliance containing legal advice regarding SAA's acquisition of new aircraft. 

The document was leaked by an unknown person to the media sometime between 5 November 2015 and 21 November 2015.  SAA decided to bring an urgent application to interdict the respondents from publishing the document on 23 November 2015.  Service of the application was effected at 10h00 on 23 November 2015 via e-mail.  One of the respondent's received the application about 30 minutes before the application was heard while the remaining respondents only became aware of the application after an order had been granted in SAA's favour.  In addition, the notice of motion did not state where the application would take place and the respondents were not given time to oppose the application.

It was evident from the facts of the matter that proper service of the application had not been effected by SAA and that the order was taken against the respondents on an ex parte basis.  The court noted that where a litigant contemplates an application where it is necessary to truncate the times for service in the Rules, care must be taken to mitigate such truncation. 

The court held that the taking of steps to ameliorate the effect of truncated service is "not a collegial courtesy, it is a mandatory professional responsibility that is central to the condonation necessary to truncate the times for service."  Sutherland J held that where an urgent application is brought on less than 24 hours' notice, it is incumbent on the applicant's attorney to take the following steps to ensure that service is effective:

  • The respondent(s)' names and contact details must be obtained or if an attorney is involved, his or her contact details must be obtained;
  • As soon as a decision is taken to bring an urgent application, the applicant's attorney must contact the respondent(s) and a demand must be made to comply with the relief sought and to alert the respondent(s) of the applicant's intention to pursue an urgent application, including the details of when such an application will be served and the identity of the Judge on urgent duty.  Agreement should be reached on the method of service and who will receive service on behalf of the respondent(s);
  • The Judge on duty should be alerted.  The applicant's attorney must advise the Judge whether the respondent(s) have been made aware of the application;
  • When the application is ready for service, the applicant's attorney must make direct contact with the person responsible to receive service on behalf of the respondent(s);
  • Sufficient time must be given to the respondent(s) to digest the application;
  • When the application is about to be served, the Judge should be consulted about when and where the hearing will take place and how much notice was given to the respondent(s) representative, including earlier alerts of the application to the respondent(s); and
  • Once the application is served in any manner other than personal service, the applicant's attorney must contact the respondent(s)' representative to confirm receipt of the application.

In the above matter, SAA was found to have not given the respondents effective notice of its urgent application.  Improper service was a factor in the court's decision to set aside the order which SAA had previously obtained against the respondents. 

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