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1. What was the effect of an applicant failing to serve summonsagainst a legal representative of a defendant or respondent?
2. Whether the respondent’s omission to serve a copy of a summons issued against the 1^st appellant, on the state attorney, rendered the summons a nullity, despite a copy having been served on the 1^st appellant.

1. Service of the process commencing litigation against members of the national executive, such as the 1^st appellant was governed mainly by section 2(2) of the State Liability Act 20 of 1957 (the State Liability Act). Before its amendment, and at the relevant period to the matter at hand, that section stated that in any action or other proceedings instituted by virtue of the provisions of section 1, the executive authority of the department concerned had to be cited as nominal defendant or respondent. The plaintiff or applicant, as the case could be, or his or her legal representative had to, within seven days after a summons or notice instituting proceedings and in which the executive authority of a department was cited as nominal defendant had been issued, serve a copy of that summons on the state attorney.
2. The above provisions were not complied with, as the respondent caused a copy of the summons to be served on the 1^st appellant at his official place of business, on December 4, 2015. It was never served on the state attorney as prescribed in section 2(2) of the State Liability Act. There was no appearance to defend by any of the appellants. The respondent obtained default judgment on March 4, 2016 against the appellants, in terms of which liability and quantum of the claim were separated in terms of rule 33(4) of the Uniform Rules of Court (the Uniform Rules) and liability was determined in favour of the respondent against the 1^st, 3^rd and 4^th appellants on the basis that the respondent was entitled to recover his full proven or agreed damages against the appellants. The determination of the respondent’s quantum was postponed sine die.
3. The order granting default judgment was served on the 1^st appellant on March 22, 2016. On March 26, 2018, the respondent lodged an application against the 1^st appellant for the determination of quantum. That application was served on the state attorney on August 24, 2018, and on the 1^st appellant at his official place of business. The respondent also served a notice of intention to amend his particulars of claim; the amended pages to the particulars of claim; and the order granting default judgment on March 4, 2016, as mentioned already. The application for the determination of quantum was set down for September 10, 2018.
4. On August 29, 2018, the state attorney, on behalf of all the appellants, delivered a notice of intention to oppose that application. On September 6, 2018 the state attorney launched an application on behalf of the appellants to stay the application for the determination of quantum, pending the rescission of the default judgment granted on March 4, 2016. On November 25, 2019 the respondent abandoned the default judgment in terms of rule 41(2) of the Uniform Rules of 1959. On December 23, 2019 the state attorney delivered a notice of intention to defend the action on behalf of the appellants and subsequently delivered their plea to the respondent’s particulars of claim.
5. On September 3, 2020 the appellants delivered an amended plea, in which they raised two special pleas, in the alternative. The main plea was based on non-compliance with section 2(2) of the State Liability Act, as mentioned already. It was contended that because there was no service of a copy of the summons on the state attorney, the respondent’s summons was a nullity. Alternatively, the appellants pleaded that in the event it was found that service was effected on the state attorney on August 24, 2018 (when the application for determination of quantum against the 1^st appellant was served on the state attorney) the respondent’s claim had prescribed, as that occurred more than three years after the respondent’s cause of action arose on February 8, 2014.
6. The special pleas were placed before the High Court by way of a special case and statement of facts in terms of rule 33(1) and (2) of the Uniform Rules, which set out the issues for determination. It was agreed, among other things, that if the defendants’ special pleas were dismissed, the trial was to immediately proceed in respect of the issue of the defendants’ liability.
7. The High Court considered the purpose of section 2(2) of the State Liability Act, and reasoned that the non-service on the state attorney did not render the summons a nullity. At most, the High Court held, the non-service constituted an irregular step, which could be rectified. It further held that, in any event, the irregular step of non-service became moot when the state attorney formally placed itself on record on behalf of the appellants, exchanged pleadings with the respondent’s attorneys, and participated in a pre-trial conference. The High Court concluded that the appellants had failed todemonstrate that they were prejudiced by non-service on the state attorney. It accordingly dismissed the appellants’ special pleas.
8. In the Supreme Court of Appeal, the submissions on behalf of the appellants were as follows. Service upon the state attorney was mandatory in terms of section 2(2) of the State Liability Act, as that provision was couched in peremptory terms by the use of the words must within 7 days serve. As the State Liability Act did not make provision for condonation for non-compliance with the service on the state attorney, a court had no power to condone such non-compliance. In the result, the special plea of non-service should have been upheld. Alternatively, the High Court should have found that the respondent’s action had been extinguished by prescription by the time summons was served on the state attorney on August 24, 2015.
9. The approach to section 2(2) propounded on behalf of the appellants was incompatible with the approach to the interpretation of similar provisions by the courts. The strict mechanical approach of drawing formal distinctions between mandatory or peremptory provisions on the one hand and directory ones on the other, the former needing strict compliance on pain of non-validity, and the latter only substantial compliance or even noncompliance, had been discarded.
10. There was also the injunction in section 39(2) of the Constitution of South Africa, which enjoined courts, when interpreting any legislation, to promote the spirit, purport and objects of the Bill of Rights. Thus, where a provision was reasonably capable of two interpretations, the one that better promoted the spirit, purport and objects of the Bill of Rights should be adopted. The right implicated in that case was that of access to courts, enshrined in section 34 of the Constitution. Consistent with that injunction, the interpretation of section 2(2) of the State Liability Act had to be one which promoted that right, by considering the underlying purpose of the section, rather than merely its text. That purposive approach was far more consistent with the constitutional values, than reading the section narrowly and strictly, as preferred by the appellants.
11. The purpose of section 2(2) of the State Liability Act, especially the requirement that a summons had to be served on the state attorney within seven days after it was issued, was clearly to ensure that the relevant executive authority was afforded effective legal representation in the matter by the state attorney. If the state attorney provided such legal representation, in any manner whatsoever, despite it not having been served by the sheriff within seven days of the process commencing such proceedings, the purpose would have been served. That would also be the position where, there was no service on the state attorney at all. In other words, it was not so much about how the state attorney obtained the knowledge of the process commencing proceedings, as the representation of the party in the legal proceedings itself.
12. A copy of the summons was served on the 1^st appellant. In the midst of legal and technical arguments advanced on behalf of the 1^st appellant, there was deafening silence on the 1^st appellant’s part as to what he did with the summons after receiving it. The critical point, however was that the state attorney effectively represented the 1^st appellant in the action, by entering appearance to defend the action if de novo, by filing a plea and by being able to be ready for trial. Thus, the purpose of the section had been achieved. The 1^st appellant’s contention that, despite a copy of the summons having been served on him, the summons should nevertheless be declared a nullity solely because it had not been served on the state attorney, was simply untenable.
13. One of the overarching considerations in matters of that nature was prejudice. The court was unable to discern any prejudice suffered by the 1^st appellant as a result of non-service of a copy of the summons on the state attorney. The 1^st appellant had not pointed to any. He was able to serve a plea in which he responded to the respondent’s allegations in the combined summons. The absence of prejudice was also evident from the fact that in the statement containing the agreed facts, the 1^st appellant asserted none. Instead, the parties agreed that in the event the special pleas were dismissed, the trial would proceed immediately on the issue of liability. That was the clearest indication that the 1^st appellant suffered no prejudice.
14. The respondent’s condonation application for the late service of his statutory notice in terms of section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (Legal Proceedings Act), was granted. In terms of section 3(4)(b)(iii) of the Legal Proceedings Act, the court granting such application had to be satisfied, among others, that the organ of state was not unreasonably prejudicedby the failure which necessitated the condonation application. The application for condonation was served on the state attorney, who at that stage, was already on record on behalf of all the appellants. If ever there was prejudice, one would have expected the 1^st appellant to place the necessary facts before the court to establish it. Instead, the 1^st appellant decided not to oppose the application. It had to therefore be accepted that no prejudice occurred to the 1^st appellant.
15. The appellants contended that service on the state attorney had occurred more than three years after the respondent’s cause of action arose. In terms of section 11(d) of the Prescription Act 68 of 1969 (the Prescription Act), the respondent’s claim would have prescribed after three years, i.e. on February 7, 2017. Section 15 of the Prescription Act provided that the running of prescription should be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. There was no dispute that the 1^st appellant was the debtor as envisaged in section 15(1) of the Prescription Act.
16. The respondent’s condonation application for the late service of his statutory notice in terms of section 3 of the Legal Proceedings Act, was granted. Similar to the issue of prejudice as discussed above, in terms of section 3(4)(b)(i) of the Legal Proceedings Act, the court granting an application for condonation had to be satisfied, among others, that the debt had not been extinguished by prescription. To the extent the High Court had granted the condonation, it, of necessity, found that the respondent’s claim had not been extinguished by prescription. The issue was thus res judicata, and no longer open to the appellants to assert it.
17. The plea of prescription in any event had no merit. It was correct that when that section was read with section 2 of the Legal Proceedings Act, service on the State Attorney, instead of the 1^st appellant, would have been effective service to interrupt prescription. However, that did not mean that the state attorney replaced the 1^st appellant as the debtor. Viewed in that light, service on the 1^st appellant was effective for the purpose of interrupting prescription.
18. The fact that the summons had not been served within the prescripts of section 2(2) of the State Liability Act,did not affect service on the 1^st appellant. For purposes of interrupting prescription, there was service of a process on the 1^st appellant. The court was fortified that where summons were served without giving the statutory notice in terms of section 3 of the Legal Proceedings Act within the prescribed period, or at all, such service was nevertheless effective for the interruption of prescription if condonation was subsequently granted. Thus the High Court was correct to dismiss the special pleas.

 (1) Any document which is required to be served in connexion with a suit may be sent for service in another county to a court having jurisdiction in that county.

 The summons to enter appearance in this case expired 12 months from the date of issue…it was not possible to revive them. That therefore means that the Plaintiff’s suit lapsed for reason of non-compliance of Order V Rule 1 of the Civil Procedure Rules…

 …I shall thus without hesitation find that the Original Summons is not in existence and all the efforts to revive the same by reissuance were null and void. The Original Summons which has lost its life cannot be resurrected… If an act is void, then it is in law a nullity and not a mere irregularity. It is not only bad but incurably bad…And every proceeding which it is founded on it is also bad and incurably bad. It will collapse. The non-compliance of the process of renewal is a fundamental defect which cannot be cured by inherent powers.