When someone you need to sue has left South Africa, all hope is not lost. South African law provides a mechanism called “edictal citation” which allows you to serve court papers on a person living abroad. This article explains what edictal citation is, when it can be used, and the steps required to get the court’s permission to proceed. 

What is edictal citation?

Edictal citation is a legal process that allows a person to sue someone who is outside South Africa. Under South African law, you cannot simply post a summons to another country and hope for the best. Rule 5 of the Uniform Rules of the High Court states that no document starting legal proceedings may be served outside the Republic without the court’s permission. 

In simple terms, edictal citation is the formal way of asking the court for permission to serve legal papers on someone living abroad. 

Edictal citation vs substituted service: what’s the difference?

Many people confuse edictal citation with substituted service, but they are different:
• Substituted service is used when the person you are suing is believed to be in South Africa, but you cannot serve
them personally. The court may allow service via email, WhatsApp, social media, or publication in a newspaper. 
• Edictal citation is used when the person you are suing is outside South Africa (or reasonably believed to be). You
need the court’s permission to serve papers in that foreign country. 

When can you use edictal citation?

You may use edictal citation if:
• The person you want to sue has left South Africa.
• You believe they are now living in another country.
• You have a valid legal claim against them.
• The South African court has jurisdiction to hear the matter. 

The court must be satisfied that it has the power to hear the case. This usually requires showing that either the person is domiciled in South Africa, or the cause of action arose within the court’s area of jurisdiction. 

How to apply for edictal citation

Applying for edictal citation is a formal process that requires an application to the court. Here are the steps:

Step 1: Confirm jurisdiction
Before applying, you must ensure that a South African court has the power to hear your claim. This is usually the case if the person is domiciled in South Africa or the cause of action arose here. 

Step 2: Draft the application
You need to bring an ex parte application (meaning the other side does not get notice) by way of a notice of motion and a supporting affidavit. The affidavit must explain: 
• Why you believe the person is abroad.
• What steps you have taken to locate them.
• How you propose to serve the papers.
• Why the court has jurisdiction.

Step 3: Propose a method of service
The court will decide how service should be carried out. This could include: 
• Personal service by a local official in the foreign country.
• Service by email or fax.
• Service by international courier with proof of delivery.
• Publication in a foreign gazette.

Step 4: Obtain the court order
If the court is satisfied, it will grant leave to sue by edictal citation and set the method of service and the time for the person to defend the matter. 

Step 5: Serve the papers
Once you have the court order, you must serve the papers using the method approved by the court and keep proof of service. 

How long does the person have to respond?

If the papers are served on someone outside South Africa, the court order will usually give them about one month to enter an intention to defend. This differs from service inside South Africa, which typically requires a response within 10 court days. 

Practical considerations
• Legal assistance is recommended: The process involves court applications and affidavits, so it is best to consult
an attorney.
• Proof of service is essential: You must be able to show that service was properly carried out.
• Costs can be higher: Serving papers abroad involves additional costs such as courier fees or local agents.

Conclusion
If you have a claim against someone who has left the country, you do not have to give up on your case. Edictal citation provides a legal route to have them served with court papers and to proceed with your claim. While it requires a formal court application, it ensures that a person cannot avoid legal proceedings simply by moving abroad. 

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.