When “Served” isn’t Served

By Shu’Aib Datay | Director and Ammaara Soofie | Candidate Attorney

Why defective service can derail your default judgment

Getting a summons issued is only half the battle in a debt recovery or enforcement matter. The other half is making sure the defendant is properly served; because if service is defective, your “unopposed” default judgment can be refused, pushing you into further steps, further delay and further cost.

That risk was illustrated clearly in Nedbank Limited v Conco; Nedbank Limited v Mhlanga; Nedbank Limited v Nodada; Nedbank Limited v Yekwa (Western Cape High Court), delivered 06 February 2026. Four default judgment applications were refused because service at a chosen domicilium was recorded as having been done by affixing copies to a door, gate, or post box – a method the Court held is not permitted under the amended Rule 4(1)(a)(iv).

The Matters, summarised

In each matter, the plaintiff sought default judgment after the defendants failed to defend. Service was attempted at the defendants’ chosen domicilium citandi et executandi. But the sheriff could not achieve personal service because the premises were locked, inaccessible or the defendants could not be located. The returns of service then recorded that service was effected by affixing the summons (or related process) to an entrance point at the domicilium.

The Registrar refused default judgment and referred the matters to open court, given amendments to the Uniform Rules (effective 27 December 2024) and uncertainty about whether “affixing” still qualifies as valid service in this context.

What changed in Rule 4?

The amended Rule 4(1)(a)(iv) provides (in summary) that where a domicilium has been chosen, service is done by delivering the process to a person apparently not less than 16 years old at that domicilium, provided that if no person is present, “the sheriff may leave a copy” at the domicilium.

The key issue was whether “leave a copy” can be treated as “affix a copy”.

The Court’s answer was, “no”.

To “Leave” is not to “Affix”

Mantame J held that the amended Rule 4(1)(a)(iv):

• Does not permit service by affixing at a chosen domicilium; and
• Draws a meaningful distinction between “leaving” and “affixing”.

The judgment notes that affixing is expressly contemplated elsewhere in Rule 4 (the Court points to subparagraph (v)), but it is not included in subparagraph (iv). The Court was clear: you cannot “read in” affixing to make service good under (iv).

The result was that default judgment was refused in all four matters.

Service is not a tick-box exercise

Although the procedural point is technical, the commercial impact is not.

The Court stressed that service must be effected in a way that is reasonably capable of bringing proceedings to the defendant’s attention, and that the purpose of service is to notify the defendant – not merely to create paper that allows an unopposed judgment to be taken.

The Court also criticised inadequate or vague returns of service, emphasising that if service is said to be in terms of Rule 4(1)(a)(iv), the return should explicitly record the location, time, method and rationale for the manner of service used.

Practical Implications for corporates

If your business relies on formal enforcement (credit agreements, instalment sales, suretyships, leases, supply agreements and other high-volume recovery processes), this judgment has several immediate implications.

1) Default judgment risk increases where defendants are hard to locate

Where the domicilium address is locked, inaccessible, abandoned or the defendant is evasive, you may see:

• More Registrars refusing default judgment; and
• More matters being pushed into open court or requiring alternative steps before judgment can be granted.

That means longer recovery cycles and potentially higher legal spend.

2) Your enforcement outcomes can hinge on the sheriff’s return

Even where you “did everything right” commercially (proper contract, clear breach, compliant demand), the matter can stall if the return:

• Uses the wrong language (e.g., says “affixed” under Rule 4(1)(a)(iv));
• Is vague (“served in terms of Rule 4(1)(a)(iv)” with no detail); or
• Does not explain why the sheriff chose a particular approach.

For businesses running bulk litigation, this is a process-control issue. Returns need quality control before default judgment is pursued.

3) “Domicilium clauses” remain essential but need operational back-up

Choosing a domicilium remains standard practice and remains important. But the operational reality is that a domicilium is only useful if:

• It is kept current (for companies and individuals alike);
• There are practical ways to access the premises; and
• There are additional channels to reach the counterparty quickly (e-mail, phone, alternative addresses), especially where litigation is foreseeable.

In other words, one should treat the domicilium as one part of a wider service and contact strategy, not the whole strategy.

4) Expect more use of alternative service methods

The Court confirmed that where service at a domicilium is problematic, nothing prevents a litigant from pursuing another recognised method of service under Rule 4.

For corporates, the key is speed. When early service attempts fail, you want your legal team to switch gears quickly rather than repeating the same failed method.

What businesses can do now

Here are pragmatic steps that reduce enforcement friction:

• Audit your standard agreements. Ensure domicilium details are mandatory and updated and that your contract management process triggers updates when parties move (or change registered offices).
• Strengthen your customer/contact data. Maintain multiple verified contact points (e-mail + mobile + alternative address), especially for high-risk accounts.
• Build a litigation “service checklist” with your attorneys. Decide upfront what will happen after a first failed attempt at personal service and when alternative service will be sought.
• Quality-check returns before default judgment is requested. If the return reflects “affixing” under Rule 4(1)(a)(iv), treat it as a red flag and address it immediately.
• Plan for timing and cashflow. In enforcement-heavy environments, small procedural delays multiply. Forecast for longer recovery timelines where counterparties are difficult to locate.

We assist corporates and credit providers with high-volume enforcement and recovery. If you’re seeing increasing ‘not found’ or locked-premises returns, we can help you adjust your approach to service and default judgment strategy.