The appellant, Vice President (later President) of Equatorial Guinea, owned property in Clifton, Cape Town. The first respondent, who was detained for 423 days at Black Beach Prison in Equatorial Guinea on the appellant's purported instructions and allegedly tortured, instituted a damages action in the Western Cape High Court. Jurisdiction was founded by attaching the appellant's property. On 13 July 2020, the appellant terminated his attorneys (A&G), who filed notices of withdrawal on 22 July 2020 designating the Embassy of Equatorial Guinea as a reachable address. Despite being notified of his obligation under rule 16(2)(b) to appoint an address for service, the appellant failed to do so. The first respondent's attorney served an application to strike out the appellant's defence on the Embassy on 27 July 2020. This was received by an Embassy manager, though the return of service had a minor address error. The appellant did not oppose the application, and on 17 August 2020, Dolamo J struck out his defence. On 26 January 2021, the first respondent served the notice of set down for trial and other documents on the Embassy, signed for by a security guard, and emailed to the designated Embassy official. The trial proceeded on 8 March 2021 before Lekhuleni AJ, who granted default judgment on 18 June 2021. On 23 June 2021, a writ of execution was served at the appellant's Clifton property. Within 24 hours, the appellant instructed new attorneys (VNA) to apply for rescission of both orders.
The appeal to the Supreme Court of Appeal was dismissed with costs, including those of two counsel where so employed. The orders of the full court, Slingers J, Dolamo J, and Lekhuleni AJ all stood.
The binding legal principles established are: (1) Where a party terminates their attorney's mandate in terms of rule 16(2)(a), the party has an obligation under rule 16(2)(b) to file a notice appointing an address for service within the prescribed distance from the Registrar's office. This obligation falls on the party, not the former attorney. (2) An address designated by a former attorney in a notice of withdrawal can serve as a valid address for service on a party, particularly where that party has failed to comply with rule 16(2)(b) by not appointing their own address for service. (3) The test for valid service is not strict compliance with the rules of service, but rather whether the purpose of service was achieved - that is, whether the party received notice of the legal process. Service in substantial compliance with the rules that brings the legal process to the attention of the party is valid service. (4) A party who terminates their attorney's mandate and then deliberately fails to engage with the litigation process by not appointing a new attorney or address for service, and ignores communications from opposing parties, is not 'absent' within the meaning of rule 42(1)(a) for purposes of rescission. Such a party has elected to be absent and cannot rely on rule 42(1)(a) to rescind orders made during that period. (5) Rule 16 serves the purpose of ensuring that litigation continues smoothly and curbing conduct by parties that seeks to frustrate the litigation process. (6) Minor defects in a return of service (such as an incorrect street number) do not render the underlying service invalid where the documents were in fact served at the correct location and came to the party's attention.
The court made several obiter observations: (1) While not strictly required under rule 16(2), it was important and helpful that the withdrawing attorney (A&G) filed notices of withdrawal drawing the appellant's attention to his obligations under rule 16(2)(b). (2) The court commented on the implausibility of the appellant's version that he chose to remain unrepresented for 11 months when his 'two luxurious immovable properties remained under threat and attachment during this time'. (3) The court noted that it was 'peculiar' that the appellant annexed an unsigned confirmatory affidavit from Ms Hombria when her explanation was critical to his version. (4) The court observed that the appellant could have applied for a referral to oral evidence to resolve factual disputes but failed to do so. (5) The court emphasized the significance of the appellant being able to have the writ of execution brought to his attention within 24 hours through the same channels (Ms Hombria and Mr Medja) that he claimed were incapable of bringing any other court documents to his notice over the preceding 11 months. (6) The court noted that A&G subsequently became the appellant's 'correspondent attorneys' despite having its mandate terminated - a fact that raised questions about why Mr Botha's supporting affidavit was not obtained regarding how A&G knew to designate Ms Hombria as the contact person. (7) The court observed that the appellant had easy access to Embassy staff and state officials in Malabo who could have provided affidavits explaining the internal workings, practices, and protocols regarding document handling, but failed to obtain such evidence.
This judgment is significant in South African civil procedure law for several reasons: (1) It clarifies the obligations under rule 16(2)(b) when a party terminates their attorney's mandate - the obligation to appoint an address for service falls squarely on the party, not the former attorney; (2) It affirms that the address designated by a withdrawing attorney can serve as a valid address for service, particularly where the party fails to comply with rule 16(2)(b); (3) It reinforces the principle that strict compliance with service rules is not required - the test is whether the purpose of service was achieved (i.e., whether notice was received); (4) It emphasizes that parties cannot frustrate litigation by terminating their legal representation and then failing to engage with the process while later claiming they were not properly served; (5) It clarifies the threshold for rescission under rule 42(1)(a) - a party who elects to be absent (by deliberate non-engagement) is not protected by the rule; (6) It demonstrates the court's approach to disputes of fact in motion proceedings, particularly where a party fails to provide supporting evidence from witnesses with direct knowledge when such evidence is readily available; (7) It reinforces the purpose of rule 16 - to ensure litigation continues smoothly and to curb abuse of process by parties seeking to frustrate proceedings. The judgment is important for foreign litigants and emphasizes that procedural rules must be complied with, and parties cannot use their foreign status or physical absence from South Africa to avoid their procedural obligations.