The first step is to make an application to Court to serve the summons upon the person by way of edictal citation or substituted service.
A distinction has been drawn in the scenarios:
- The person whom you want to serve the documents upon lives abroad (edictal citation); or
- The person whom you want to serve the documents upon lives in the Republic, but his/her whereabouts are unknown (substituted service).
In terms of Rule 10 of the Magistrate’s Courts Rules, an application must contain the following details:
- The nature and extent of the application:
An order to effect service of summons by way of publication in a local or national newspaper or service outside the Republic where the person resides and/or publication by way of facebook.
- The grounds upon which the Court has jurisdiction to entertain the claim:
That the marriage between the Plaintiff and defendant still subsists and that the Plaintiff resides in the area of jurisdiction of the above Honorable Court. That the marriage between Plaintiff and Defendant has irretrievably broken down.
- The manner of service which the Court is asked to authorize:
- Which Could be by way of publication in a local or national newspaper and/or facebook (substituted service).
- By way of servicing summons in a country outside the Republic or publication in a newspaper outside the Republic.
- If the manner of service is other than personal service, the last known whereabouts of the person to be served, and the enquiries made to ascertain his present whereabouts:
- The Plaintiff must prove to Court that service by Sheriff was not possible, by attaching proof of return of non-service or tracing report showing no tracings, or proof that the Defendant is still active on Facebook.
- Any information which may assist the Court in deciding whether leave should be granted and if so, on what terms.
Kim Hawkey cited the words of Judge Steyn in CMS Woodworking Machinery (Pty) Ltd v Peter Odendaal Kitchens:
“The Court held that the Applicant discharged this onus and therefore granted it leave by way of substituted service to serve the notice on the Respondent via a Facebook message addressed to his personal inbox.”
Magistrates’ Court Rules