Substituted Service as One of the Alternative Remedies for Service in Divorce Proceedings

What is the procedure when parties have been separated for an extended period of time and no longer reside together as a married couple, making it impossible to ascertain their whereabouts? Rule 4(2) affords such litigants an opportunity to approach the court for leave to serve Summons by means of substituted services other than personal service, provided the person against whom a relief is sought is believed to be within the Republic of South Africa.

In order for the court to grant leave in this aspect, a litigant is required to establish the following:

• the nature and extent of his or her claim;
• the grounds upon which it is based and upon which the court has jurisdiction to entertain the claim;
• the last-known whereabouts of the person to be served and the inquiries made to ascertain his or her whereabouts; and
• the manner of service which the court is asked to authorise.

This position was recently affirmed in a Gauteng Division judgment in L.R v T.S (2023/123933) [2024] ZAGPJHC 336 (5 April 2024) where Acting Judge Wadee removed a divorce hearing from an unopposed motion roll due to non-compliance with Rule 44(1) and Rule 4(2). The Plaintiff misrepresented that service was properly effected despite absence of personal service. The action was subsequently removed from the roll as the Plaintiff’s attorneys failed to bring an application setting out valid basis for substituted service.

It is equally important for practitioners and litigants to differentiate between Substituted Service and Edictal Citation. Edictal Citation applies in cases where the other party is believed to reside outside the Republic of South Africa.

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