The Sheriff of the Court, Not Exactly Like the Wild West, but Close Enough!
Who is the sheriff? The sheriff and the deputy sheriff are in fact officers of the court who are appointed by the minister of justice in terms of the Sheriffs Act 90 of 1986. This sheriff does not arrest individuals as the name may suggest but is rather a key player in the services, such as the service of documents in legal proceedings and execution of court orders.
The Sheriff is not an agent of the parties of a legal matter but rather acts as per his duty of service. This means that a Sheriff is not contracted by the parties, nor is he an agent for them. Should the sheriff fail in acting out his duties accordingly, he will be held liable in terms of delict and not in terms of contract or agency.
When sheriffs are appointed, they must act within the jurisdictional area of the court by which they are appointed. Where the sheriff fails to do so and serves a document outside the jurisdictional area, such a service will be deemed defective.
Only once the initiating parties’ documents have been issued by the court (i.e. original and true copy have been stamped and signed on the front pages by the registrar or clerk court) may the documents be served by the sheriff. The sheriff will then take the stamped original and true copy to the opposing party, give the opposing party the copy, have the original copy signed, and further explain the contents of the document. A good example of this is that any service of a summons in action proceedings or a notice of motion in application proceedings must be served on the opposing party by the sheriff.
The sheriff must then supply a return of service which outlines the following:
- What documents have been served on the opposing party
- How the documents were served (by hand etc.)
- Whether the sheriff had managed to successfully serve the documents
- In the event that the sheriff cannot serve the documents, it will be considered a non- service in the return of service.
- Where and when the service was performed and
- That the nature of the document has been explained to the opposing party.
In addition to the above, the sheriff also has the duty to execute court judgements and thus may need to attach property if a monetary amount granted by the judgement cannot be paid.
These services are not free and as such will result in incurring additional legal expenses. It is, therefore, essential that all legal process must be performed efficiently in order to reduce these expenses
Theophilopoulos, C; et al; Fundamental Principles of Civil Procedure Second Edition (2012)