– by Cleo Stockenstroom

• Legal Framework and background regarding the purpose of a domicilium address and personal service thereon

A domicilium citandi et executandi finds its origin in Latin legal terminology and may be defined asan address elected, nominated or chosen by a party to a legal contract at which one voluntarily elects to receive legal process, such as a summons. A chosen domiclium address must be a physical address and not a postal address.

In Amcoal Colleries Ltd v Truter 1990 (1) SA 1 (A) at 5H-6D, Nicholas AJA remarked that: “It is a matter of frequent occurrence that a domicilium citandi et executandi is chosen in a contract by one or more of the parties to it. Translated, this expression means a home for the purpose of serving summons and levying execution. (If one elects domicilium citandi the domicilium they choose, is taken to be the place of abode).
It is a well-established practice (which is recognised by Rule 4(1)(a)(iv) of the Uniform Rules of Court) that, if a defendant has chosen a domicilium citandi, service of process at such place will be good, even though it be a vacant piece of ground, or the defendant is known to be resident abroad, or has abandoned the property, or cannot be found.”

Rule 4 and its operation in our law
The Uniform Rules of Court provide for different methods of service of any process of the Court directed to the sheriff or of any document initiating application proceedings.

Rule 4, which was inserted into the Uniform Rules in July 2012, provides for service of process other than that initiating application proceedings, by hand delivery, registered post, electronic mail or facsimile. Further, in respect of the latter two modes of service, chapter III, part 2 of the Electronic Communications and Transactions Act 25 of 2002, which relates to communication of data messages, is applicable.

InPrism Payment Technologies v Altech information Technologies2012 (5) SA 267(GSJ) at 271H-272A, Lamont J said the following about the purpose of r 4:

‘The purpose of rule 4 is to provide for a mechanism by which relative certainty can be obtained that service has been effected upon a defendant. If certain minimum standards have been complied with as set out in the rule, then the assumption is made that the service was sufficient to reach the defendant’s attention and his failure to take steps is not due to the fact that he does not have knowledge of the summons.

• Consequences of requiring personal service to a person apparently not less than sixteen years of age at the domicilium so chosen

An individual’s right to due process provides that they must be informed of any legal proceedings that involve them and be served with a copy of the complaint and/or claim notifying them that there is impending legal action before a Court, before they can be taken to Court. Parties to a contract are duly required to furnish the other contracting party with a domicilium address for this very purpose. In most contracts concluded in respect of the National Credit Act, each party is required to inform the other where a change has occurred in their domicilium address. This is to ensure that their rights, in respect of due process is upheld. To emphasize the sentiments expressed by Lamont J above, notice of a change of domicilium address provides certainty.
Moreover, if one gives due consideration to the opening remarks in the case of CMC Woodworking Machinery (Pty) Ltd v Pieter Odendaal Kitchens(KZD) (unreported case no 6846/2006, 3-8-2012) Steyn J, held that“changes in the technology of communication have increased exponentially and it is therefore not unreasonable to expect the law to recognise such changes and accommodate [them]”. The judgment in CMC placed emphasis on the issues relating to service, especially those in reference to the manner of personal service which Steyn J considered to be regressive considering the climate of the exponential improvements in respect of technology. The exclusion of service by way of affixing undoubtedly tends to narrow a claimant’s right to proceed in respect of an action as failure to effect personal service to a person apparently not less than sixteen years of age at the domicilium so chosen will open up a stream of abuse to debtors. The knock-on effect hereof will be that failure to notify the other contracting party about such change of address, in conjunction with the fact that debtors will unquestionably evade service to avoid legal proceedings, will shift the onus of ensuring sufficient service on a debtor to the creditor in their entirety. Further to above, to ensure service where a debtor is accordingly attempting to evade same, a creditor will be tasked with incurring the costs of appointing a tracer for the purposes of obtaining a new and/or alternative address and in the event where same is in vain, the next available remedy will be to issue an application requesting substituted service to the appropriate forum to seek an order confirming that they may direct substituted service either by way of email, facsimile or by way of Notice in the Government Gazette.
It is unconscionable to place the burden of ensuring that the debtor has received notice on a creditor where such creditor already has a legally enforceable claim. A further injustice is also created as such an exercise will lead to creditors pouring money down the drain for sake of ensuring that legal process has taken it’s course, purely for the sake of upholding the rights of a debtor to the detriment of the creditor.
The need for personal service has arguably been abused by many judgment debtors who evade personal service by the sheriff in the hope that the application will not be granted as a result of a failure to effect service in accordance with the rules. It appears that our Courts’ natural inclination is to postpone applications such as those relating to Rule 46A applications and those in respect of default judgments referred to open Court in respect of Rule 31(5), until such time as every service avenue has been explored to ensure that the debtor has received such notice.

• Delay of justice

The introduction to the exclusion of service by affixing purports to narrow the issue surroundingserviceof the summons, by questioning the manner ofserviceprescribed in Rule 4(1)(a)(iv) of the Rules of Court, which provides forserviceat the address. In the case of Absa Bank Limited v Mare and Others (A56/2019) [2020], Mayer J, held that the manner in which a process may be delivered or left at adomiciliumin terms of r 4(1)(a)(iv)is not prescribed and depends on the prevailing circumstances. The Court held that the duty upon a sheriff is to serve a notice or process of Court at the address by delivering or leaving the notice or process in a manner by which, in the ordinary course, the notice or process would come to the attention and be received by the intended recipient, and to report to the Court how the process was served and why it was served in that manner.

CONCLUSION

To narrow the manner in which legal process is served to only allow for personal service is to welcome open abuse of our legal system. The current proviso, by including the word “leaving” allows for service even where a debtor does not wish to accept such process and a sheriff is accordingly empowered to affix same to a principle door in his or her presence. Same is therefore not personal service, but rather affixing and it is accepted that the debtor has received due notice thereof. However, the amendment proposed does not make provision for an alternative means of service where a debtor and/or a person over the age of 16 outright refuses service by way of the sheriff. To restrict service by way of deleting the word “leaving” is to reduce certainty and conversely introduce an additional step for those seeking justice where they have a valid claim in respect of an agreement. Sources of law are silent in regards to the scenario where a creditor is without any additional funds but for those to seek their claim in the ordinary course and it is therefore an injustice to place at the fore the rights of the debtor over that of the creditor where the former is fully aware of their duty to ensure notification of their change of domicilium and therefore acting in their own best interest as a capable party to a contract.
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