“In my view, given the difficulties of a sheriff or his deputy accessing a security complex in the absence of the occupant for the purposes of service in terms of rule 4, service of process by way of it being handed to the security guard at the complex, a responsible employee older than 16 years, is valid and effective service on the debtor.” (Extract from judgment below)
Moving house (or office) will mean a busy time and a long “to do” list.
Here’s an action item to add to the “Priority” section of your list: Give notice, in the required format, to everyone you have contracted with. Otherwise you could well, like the debtor in this case, wake up one morning to find your bank account frozen. Or the Sheriff of the High Court knocking on your door with a Warrant of Execution against your property.
Why is your “domicilium citandi et executandi” so important?
A “domicilium citandi et executandi” (“domicilium” for short), is a bit of Latin wording you will see in many agreements, and in simple terms it’s the address you nominate in a contract where legal notices may be sent to and legal process (such as a summons) served on you.
As we shall see below, it’s vital to take it seriously, both when you initially choose an address in the contract, and if/when you later move.
Debtor’s bank account frozen after summons served on a complex security guard
- An occupant in a security complex with “many” residents bought a motor vehicle on instalment sale agreement, specifying his residential address as his domicilium.
- Eventually after he surrendered the motor vehicle it was sold on auction and he was notified to pay the balance of R108k plus interest.
- When he moved to another security complex, he phoned the creditor to advise his new address. Critically however, he didn’t follow that up with a formal advice of change of domicilum in the required format.
- When the creditor issued Summons, the Sheriff tried first to serve it at the new address but failed when that complex’s security guard said the debtor was not yet living in the unit, although his possessions were there.
- The Sheriff then served the Summons at the old address (the debtor’s chosen domicilium), by handing it to the complex’s security guard.
- Unsurprisingly there was no notice of intention to defend from the debtor, whereupon the creditor took a default judgment and attached and froze the debtor’s bank account (leaving him, so he said, unable to pay his covid-related hospital and medical expenses).
- The debtor asked the High Court to set aside (“rescind”) the judgment, arguing amongst other things that the summons hadn’t been properly served on him.
Why the debtor lost
- As the Court put it: “Service on an address chosen by a debtor as the domicilium citandi et executandi constitutes good service even if the debtor is known not to be residing at the domicilium address, is overseas or has abandoned the premises.” In other words the summons is considered properly served whether you are still at the address or not.
- “The manner of service at a domicilium address, however, must be effective. It must be such that the process served at the domicilium citandi et executandi would, in the ordinary course, come to the attention of and be received by the intended recipient.” One way of meeting that requirement is to serve the process on a “responsible employee” – and, held the Court, security complexes not being easy to access in the absence of an occupant, it made no difference that the security guard in question worked not for the debtor but for the complex.
- The obligation is on a debtor changing address “to update or amend the debtor’s chosen domicilium address with the credit provider.” You have only yourself to blame for the consequences if you forget to do that.
- Critically, you must advise a change of domicilium in whatever manner the contract requires (usually in writing at the very least). Make sure you specify it is your domicilium address that you are changing – “A change in residential address does not serve to change a domicilium”
- And don’t think that your obligation to notify a change of address falls away once the contract is terminated. On the contrary, “the domiciliumaddress survives cancellation of the agreement.”
End result – the judgment stands and the debtor must cough up.
Keep proof!
First prize of course is to avoid any disputes with the other party in the first place, but bad things happen to even the most careful of us so make sure that you aren’t left blissfully unaware of any notices or summonses that are issued against you at the wrong address. And if you do find yourself applying for a default judgment to be set aside, make sure you have kept proof that you notified the other party of your change of domicilium in the specified format.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).