2 February 2008

Downfall by "Domicilium"

A glimpse at a Court's interpretation

It is common practice to include a domicilium address where service of notices may be delivered. However, the interpretation of the exact location of this domicilium address may occasionally lead to disputes in court. The Supreme Court of Appeal considered this very fact in the case of Cohen v Lench. The dispute arose on the factual issue of delivery of a notice to cancel a sale of property agreement at the chosen domicilium address.

If the purchasers breached any term of the agreement and they failed to remedy the breach within ten days from the date of delivery of the notice calling them to do so, then the sellers would be entitled to cancel the agreement. Delivery of the written notice would have been effected by pre-paid registered post or by hand delivery to the domicilium address. The purchasers' nominated domicilium address was their residence at the time of the conclusion of the agreement, which was a unit in a gated townhouse complex.

The notice that called on the purchasers to remedy a breach of the agreement was allegedly attached to the perimeter gate of the complex where the purchasers resided, as the sellers alleged that they could not gain access to the purchasers' particular unit within the townhouse complex.

The question before the Court was whether the attachment of the notice to the perimeter gate was sufficient to constitute delivery for purposes of the agreement, even though it was not received by the purchasers.

The Court held that "acceptable methods [of delivery] would include handing the notice to a responsible employee, pushing it under the door, or by placing it in a mailbox. But where none of those methods were possible, then appending the notice to the main gate was an appropriate method of ensuring that it would in the ordinary course come to the attention of the intended recipient". Relying upon what was said in the Loryan (Loryan v Solarsh Tea and Coffee) case, the Court said that delivery to a chosen domicilium "presupposes … hand delivery in any appropriate manner by which in the ordinary course the notice would come to the attention of and be received by [the addressee]."

The Court held further that it would no doubt be sufficient to attach a document to the door of a chosen domicilium, or to leave it at some appropriate place at the chosen domicilium, but the notice in this case was not left at the domicilium at all. The chosen domicilium was not the townhouse complex but a specific unit in the complex. The fact that the domicilium could not be reached because the perimeter gate was locked did not entitle the sellers to choose an alternative place for delivery, whether or not delivery at that place would ordinarily bring it to the attention of the addressee. On those grounds the sellers were not entitled to cancel the agreement and it was not necessary to decide whether the notice was valid.

It is important therefore to be clear and concise when providing a domicilium address in any agreement as indications suggest that the Court will strictly interpret these clauses.

Natalie von Ey and Lindiwe Mvelase

The information and material published on this website is provided for general purposes only and does not constitute legal advice.

We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter.

We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages.

Please refer to the full terms and conditions on the website.

Copyright © 2021 Cliffe Dekker Hofmeyr. All rights reserved. For permission to reproduce an article or publication, please contact us cliffedekkerhofmeyr@cdhlegal.com