International Legal Obligations
Service of Process
PROCEDURE: SERVICE OF PROCESS: ABROAD AND AT HOME
1. TO A FOREIGN COUNTRY
1.1 A firm of attorneys seeking documents to be served in any foreign country shall follow this procedure:
- The documents must be taken to the Registrar’s office;
- The documents must be in separate sets of “A” & “B” (For U.S.A. documents must be in sets A,B&C);
- The documents must be issued with the Clerk of the Civil Court to get a file number and the Registrar’s stamp;
- The documents must be translated into the foreign country’s official language (if the official language is not English);
- The Registrar shall peruse the documents and ascertain the country where they should be served;
- If the country where the documents should be served is a signatory to The Hague Convention of 5 October 1961, the Registrar shall attach an “Apostille” certificate on both sets “A”& “B” of the documents and, together with the clerk or whoever is from the firm of attorneys, bind and seal(red seal) the documents separately;
- If the country where the documents should be served is not a signatory to The Hague Convention of 5 October 196, the Registrar shall attach “Authentication” certificate on both sets, “A”& “B” of the documents, bind and seal (red seal) the documents separately;
- Attorneys are to ensure that the Registrar sign the apostille or authentication certificate;
- The Registrar shall do a covering letter address it to the Director-General; Department of Justice and Constitutional Development (DoJ&CD), Chief Directorate: International Legal Relations.
1.2 For DoJ&CD, Chief Directorate: International Legal Relations, the procedure is as follows:
- The documents shall be received by the DoJ&CD and forwarded to the Chief Directorate: International Legal Relations;
- The documents shall be registered in the relevant register for service of process abroad and a file on the matter shall be opened.
- The file shall be referred to one of the officials to handle;
- The official shall write a letter to the Registrar acknowledging receipt of the documents;
- The official shall have the signature of the Registrar authenticated by attaching an Apostille of Authentication certificate;
- The official shall then write a covering letter (registered mail) and attach it to the documents and forward them to the Director- General: Department of International Relations and Cooperation (DIRCO): Consular Service.
1.3 The documents shall be received by DIRCO and they shall acknowledge receipt thereof.
1.4 DIRCO shall forward such documents to the South African High Commission of the relevant foreign country for service.
1.5 The South African High Commission in the relevant foreign country shall request the judicial authorities of that country to serve the documents on the Defendant on their behalf.
1.6 After the documents were served they will be returned to DIRCO and, DIRCO will forward them back to DoJCD for onward transmission to the Registrar. (THE ABOVE IS CALLED DIPLOMATIC CHANNELS)
1.7 As far as the time frames are concerned, that is, how long it will take for the documents to be served abroad, DoJ&CD cannot determine that.
1.8 As far as Sherriff fees are concerned for service abroad, the “Return of Service” and certificate of the Sheriff will indicate the amount due for service. DoJ&CD cannot determine that.
1.9 For any progress on such matters attorneys shall enquire from the office of the Registrar.
2. FROM A FOREIGN COUNTRY
2.1 The documents shall be forwarded to our South African High Commission in that particular country, or to the High Commission of that country here in South Africa;
2.2 The South African High Commission shall do a covering letter and forward the documents to DIRCO;
2.3 DIRCO shall forward the documents to DoJCD, Chief Directorate: International Legal Relations;
2.4 Chief Directorate: International Legal Relations shall peruse the documents to ascertain compliance with South African Legislation.
- If such documents are in order they will be forwarded to the Registrar of the High Court having jurisdiction, to instruct the sheriff of that area to serve the documents on the Defendant in terms of Section 33 of the Supreme Court Act, 1959 (Act 59 of 1959)
- After the documents have been served they will be returned to the Registrar with a “Return of Service” or: Return of non- Service” certificate and an invoice of the sheriff for the amount due for service. (See rule 4(15)(b) of the Rules of the Supreme Court under Government Notice R.48 of 1965).
- The documents will be returned to DoJCD by the Registrar and DoJCD will forward them back to DIRCO for further transmission to the foreign High Commission.
2.5 After perusal of the documents and International Legal Relations discover that they don’t comply with our legislation; the documents will be returned to DIRCO to inform that particular foreign country to comply with whatever is missing in the documents.
2.6 Where a local firm of attorneys has been appointed as a correspondent for service of foreign documents in South Africa, documents shall not be considered if they did not follow (Diplomatic Channels).
2.7 The Chief Directorate: International Legal Relations does not interact directly with attorneys; they shall interact with the office of the Registrar for any progress.
Guide by T A J Sello
Updated: 22 Oct 2014