In the world of common law, reliance on precedent and case law is foundational. Legal principles established in past cases serve as guiding lights for courts tackling similar issues. The doctrine of stare decisis provides stability and predictability. But what happens when the world evolves faster than the principles that govern it? When do we, as legal professionals, need to re-examine the relevance of historical decisions?
The answer lies in recognising that, over time, societal values, public policy, and legal standards are not static – they shift, adapt, and, in some instances, undergo transformative change. Courts are understandably cautious about overturning well-established precedent. Yet, when circumstances shift dramatically, precedent must evolve or risk becoming an anchor rather than a compass.
Take, for example, areas like environmental jurisprudence, LGBTQ+ rights, and technology – fields where the pace of change has been nothing short of staggering. Precedent rooted in outdated societal norms or technological realities cannot adequately address the complexities of today’s issues. Attempting to apply the logic of the past to modern challenges often results in inequitable or impractical outcomes.
One particularly illustrative case of outdated assumptions is the legal concept of domicilium citandi et executandi – traditionally understood as a physical address for the delivery of legal notices. But in an increasingly digital world, does this interpretation still make sense? A closer look at South African law suggests that it might not.
Let us examine three key pieces of South African legislation:
The Companies Act requires companies to maintain a registered (physical) office address (s 23(3)(b)) and provides that formal notices must be delivered to a person’s last known address (s 220(a)-(b)).
Nowhere does it specify that the registered office address and the delivery address for notices must be the same. It also does not specify that the delivery address for notices must be to a brick-and-mortar structure.
(Interestingly, 2009 – the year the Companies Act was signed by the President – also marked the introduction of the first iPhone in South Africa, a harbinger of the digital age.)
While the Criminal Procedure Act does refer to ‘physical’ or ‘residential’ addresses in specific instances (four sections), it also mentions simply ‘address’ in seven other sections. With 75 amendments since 1977, it is clear that where a physical address is explicitly required, the legislation states so.
Absent such specificity, any address – including an e-mail address – will suffice.
The National Credit Act goes a step further. It stipulates that legal notices must be delivered to the address set out in the agreement or the address most recently provided by the recipient (s 96(a)-(b)). It also explicitly allows consumers to dictate their preferred method of delivery (s 129(6)) – a provision that obliges credit providers to honour e-mail addresses or other modern means of communication as valid delivery destinations.
Consider the modern individual who defies traditional notions of domicile. I recently encountered a keynote speaker who has no fixed address. He is well sought-after, and spends most of his time travelling to international corporate events. He owns no property, rents no apartment, and instead lives in hotels and Airbnb’s around the world.
Despite lacking a physical ‘home’, he is far from unreachable. With multiple credit cards, a stock trading account, and cryptocurrency holdings, his domicile exists only in the digital realm.
How prepared are our legal processes to acknowledge this evolution?
The purpose of the National Credit Act is to ‘promote and advance the social and economic welfare of South Africans.’ To meet this goal, legal practices must adapt to the realities of a digital and globally interconnected society.
The only justification for many of these practices is the refrain: ‘That’s how we’ve always done it.’ But tradition, while valuable, must never become a barrier to progress.
The law is not static, nor should it be. It must reflect the realities of the society it serves. Courts, legislatures, and legal professionals must recognise when precedent – however venerable – has become an anachronism. By embracing this perspective, we honour not only the principles of justice but also the dynamic and ever-evolving nature of human society.
Fortunately, South African legislation is already well-equipped to accommodate modern realities. The Companies Act, National Credit Act, and Criminal Procedures Act (as examples) all contain provisions that allow for the use of non-physical addresses, including e-mail, as valid points of contact. These frameworks demonstrate foresight and adaptability, proving that the tools for modernisation are already in place. The only remaining step is for the judicial system to fully embrace these provisions and integrate them into its application of the law.
By doing so, the judiciary can ensure that legal processes remain accessible, practical, and relevant in an increasingly digital world. This shift will not only enhance efficiency but also align the law with its ultimate purpose: to serve the people and reflect the realities of the time. The sooner we recognise and act on this need, the more resilient and equitable our legal system will become.
Norman Colling is a Director at Registered Communication (Pty) Ltd in Johannesburg.
This article was first published in De Rebus in 2025 (March) DR 19.
