Let’s talk about domicilia in our current times.
As we are all aware, giving some thought to the domicilium clause in an agreement is very important.
Today we needed to place another badly behaving purchaser on terms, and we were faced with a dilemma.
The agreement provided that a written notice needs to be served on the chosen domicilium of the party in breach. On the first page of the agreement, there is space to write in a physical address and immediately after that the word (“domicilium”) appears.
Most of us have known for a long time that there are not many places where our SA Post Office delivers to physical addresses. We can be reasonably sure that our demand sent by registered post is not going to arrive at the nominated physical address.
This became all the more evident today when we needed to find a SA Post Office where we could send the registered letter from. According to BusinessTech in their article on 6 October 2023, the SA Post Office has closed 396 of its branches since the 2020/2021 financial year. They commenced that year with about 1,300 branches. Most SA Post Offices in Sandton, and dare we say Johannesburg, seem to have now closed. It is therefore very difficult to find a Post Office from which one can send a registered letter in Johannesburg, and perhaps the whole of South Africa.
Most agreements we see already have clauses providing that written notices can be sent by email. The agreements are just not drafted in such a way that the email address is included in the definition of “domicilium”. We suggest this is an important update we should all consider.
In our agreements we draft we no longer include a postal address at all because we know the post is unlikely to reach its destination timeously. A physical address is still important so if a notice needs to be served personally, it can still be validly executed. The next step after a written notice may be a summons and this would certainly need to be served personally at a physical address, usually by an appointed Sheriff of the Court.
We should therefore make sure in all our agreements that the definition of “domicilium” includes an email address as well as a clear physical address with postal code to identify the area.
Disclaimer: This article does not constitute legal or professional advice and should not be relied on without further professional advise.
Andrew Smith has 30 years of conveyancing experience, including subdivisions, township developments, sectional title developments, servitudes, usufruct transfers, general transfers, mortgage bonds, and uses his tax background to structure complicated transactions in the most tax efficient manner.