… how would you serve on a unit in a townhouse complex where access is restricted in that the gates are padlocked closed, there are high walls with electric fencing, no guards on duty and no post boxes and the intercom system is not working. So to all intents and purposes the unit to be served on is in an almost impregnable position.
Do you think it would be proper service to attach to the main entrance gate bearing in mind that the domicilium is given as a specific unit of the complex as there seems to be no reasonable alternative.
I did a little research today to see if there are any clear authorities in the cases that deal with this issue. I wasn’t able to locate a case that deals with this question beyond a case that said that when it comes to delivery of a notice in terms of an agreement, that notice can be placed in a letterbox at the domicilium address. Service of court process is a different matter to delivery of a notice in terms of an agreement, though.
Our rules of court permit service of process at a domicilium address by leaving the process being served at the address even if the premises are unoccupied or the intended recipient is known not to be residing there. These rules do, however, require that to avoid a complaint that service on a business premises was bad, one must establish that the process came to the attention of the recipient.
I believe it would be problematic to simply affix process to an outer gate to a complex which contains the unit which was designated as the domicilium citandi et executandi in this example of where the unit itself is one of many in a complex. The process must be served at the unit itself or service will most likely be regarded as defective. In practice the sheriff of the court (designated as the party responsible for service of court process) would gain entry to the complex by persuading a resident to open the gate for him. A sheriff can also force his way into the premises in conjunction with members of the South African Police Services in certain circumstances.
Bear in mind that there are other ways of serving court process on a party. Notwithstanding that a party has appointed an address as his/her domicilium citandi et executandi, service can be effected using the other means prescribed in our rules of court (for example, a home or place of work).
I received an email from a colleague at Bowman Gilfillan (I am not sure if he wants to be identified so I’ll be a little cryptic about his identity) who referred me to the recent case of Lench and another v Cohen and another 2006 (2) SA 99 (W) which touches on delivery of a notice to a domicilium address. I read a summary of the case on the Deneys Reitz website and it seemed to confirm that if a notice is delivered to a domicilium address in terms of an agreement, it is competent to leave it at the main gate (in this example) and further that the recipient takes “the risk on himself that the notice might not come to his attention by choosing such address as his domicilium”.
Assuming the summary on the Deneys Reitz website sets out the complete analysis of this issue, I am not so sure that the principle will still apply to service of court process like a summons or an application. I welcome any other views as I have not read the full case.