In resolving the dispute of fact in favour of the Rushwayas, the learned Judge a quo relied on the well established principle that the Messenger of Court's Return of Service is prima facie proof of the contents therein, and that the prima facie case can only be rebutted by clear and satisfactory evidence.  

For the above proposition the learned Judge a quo relied on Gundeni v Kanyemba 1988 (1) ZLR 226; Fox & Carney v Sibindi 1989 (2) ZLR 173 (SC)…,; and Kanyada v Mazhawidza 1992 (1) ZLR 229 …,.

The appellant sued the first respondent and second respondent for nullification of the contract of sale they entered into leading to the third respondent authorizing cession by the first respondent to the second respondent of title, rights and interest in Stand 2110 Solani, Epworth. The appellant had earlier purchased the property from the first respondent.

The ground on which the appellant claimed nullification of the contract of sale is that the second respondent was fully aware, at the time of entering into the contract with the first respondent, of her prior rights in respect of the property.

Summons was served by the Deputy Sheriff on a tenant who accepted service on behalf of the first respondent on 20 July 2006. The first respondent did not enter appearance to defend….,.

The court a quo, in a terse judgment, found in favour of the second respondent without having determined the question whether the first respondent had notice of the summons. The rules of the High Court clearly provide that a return of service by the Deputy Sheriff is prima facie evidence of service of process having been effected on the person for whom it is intended. In this case, there is no other evidence to rebut the presumption that the first respondent received the summons. The first respondent must be taken as having been in default of appearance at the hearing of the matter by the court a quo.

The Deputy Sheriff is an independent officer of the court who has no motive for misrepresenting the facts. His averment to the effect that as of 6 April 2011 he had completed the eviction of Continental Fashions (Private) Limited and handed over the premises to Old Mutual and Ruby Auctions is beyond question.,  

Thus, as at 6 April 2011 the machinery was under the custody, detention and control of Ruby Auctioneers, pending sale in execution.

Order 5 Rule 39(2)(d) provides that where process is to be served on a body corporate, such process may be served by delivery to a responsible person at the body corporate's place of business or registered office; or by delivery to a director or to the secretary or public officer of the body corporate.

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008....,.

Rule 63 of the High Court of Zimbabwe Rules 1971 provides:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971 are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226E-H. Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant, for failure to respond to the summons, is not
convincing, especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to responded to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S), that, the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgement has discharge the onus of showing “good and sufficient cause” for the rescission.

On 3 October 2007, this court granted a provisional order in favour of the applicant. The litigants were not present but were represented by counsel.

On 23 November 2007, the applicant instituted the present proceedings for contempt of court.

The applicant avers that the respondent has defied the provisional order. He was legally represented when the order was granted. It is its belief that same was communicated to him or a copy of the order was sent to him.

The respondent admits that the order was granted in the presence of his legal practitioner. He, however, avers that his legal practitioner advised him that he would be served with the order.

Up to the time of filing his opposing papers he had not been served with the court order.

It was submitted, on behalf of the applicant, that the conduct of the respondent was intended to and indeed undermines the authority of this court. The court was urged to redeem its dignity, reputation, and authority by imposing an appropriate penalty on the respondent.

It was further submitted that if the court were to accept the respondent's defence, it should still find him to be in contempt of court. He has since been served with the order at the time that he was served with the present application. He has not purged his contempt.

Contempt of court is continuous until it is purged by compliance. The court should therefore find him to be in contempt of court based on this fact.

It was submitted, on behalf of the respondent, that in order for the conduct of a party to constitute contempt of court, such conduct must be wilful or intended and calculated to impair the dignity or reputation of the court. The conduct complained of must be in violation of an obligation imposed on such person by a court of competent jurisdiction to obey a court order until its discharge. The respondent was not served with the order. His conduct cannot be said to be unlawful, intentional, and willful.

The provisional order had a provision to the effect that leave was granted to the Deputy Sheriff to serve the provisional order upon the respondent. It is clear from the applicant's papers that no such service took place.

In terms of Rule 42B(1)(a) where service has been effected by the Sheriff or his deputy, proof of service shall be by return of service in Form No.5A or by endorsement on the process concerned.

There is no such proof attached to the applicant's papers.

The applicant advances the argument that the respondent must have been aware of the terms of the provisional order as his legal practitioner was present when it was granted.

This argument cannot succeed. As I have already alluded to, the provisional order had to be served on the respondent.

It appears that cases whereby parties institute contempt of court proceedings, where the order in issue has not been served, are on the rise. There might be need to re-state the elementary requirement in relation to service of court orders.

The need for sufficient notice of the terms of the order being put in issue cannot be over emphasized. This point was made by C J MILLER in his book Contempt of Court, 2nd edition…, when he wrote:

“In all cases, it must be shown that the person against whom it is sought to apply the sanction of the law of contempt has sufficient notice of the terms of the judgment or order which it is alleged he has disobeyed.”

The need for sufficient notice of the terms of the order becomes clearer when one looks at the essential elements in contempt proceedings.

GILLESPIE J, in Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (H)…, had this to say:

“Before holding a person to have been in contempt of court, it is necessary to be satisfied both that the order was not complied with and that the non-compliance was willful on the party of the defaulting party.”

See also Lindsay v Lindsay 1995 (1) ZLR 296 (S)…,.

For one to establish wilfulness, he must establish that the defaulting party was fully aware of the terms of the court order and he chose not to comply with the order. As C J MILLER in his book Contempt of Court, 2nd edition, puts it…,:

“In so far as possible, that person should know, with precision, what it is he is required to do or to abstain from doing.”

CHIDYAUSIKU CJ, in Minister of Lands & Ors v Commercial Farmers Union 2001 (2) ZLR 457 (S), made the same point and quoted from the same author…,:

“Before a finding of contempt can be made, it is necessary to determine whether there has been a factual breach of an order or understanding on the part of the body or person brought before the court. This necessarily demands that the terms of the order be expressed in clear unambiguous language, and, in so far as possible, the person should know, with complete precision, what it is he is required to do.”

This can be achieved if the defaulting party is served with the court order - unless if he was present when the order was pronounced.

In casu, the respondent was not present when the order was pronounced and was not served with the order as was ordered by the court.

The applicant has not, therefore, established wilfulness on the part of the respondent.

The applicant further contends that the respondent should be found to be in contempt of court as he has now been served with the provisional order and has not purged his contempt.

It is my view that, to date, the provisional order has not been served on the respondent.

What was served on the respondent was the court application in this matter to which the provisional order was attached as an annexure. That cannot constitute service of the order as is required by the provision of service in the order itself.

In any event, the facts establishing contempt after the alleged service have not been placed before me. The respondent has not been given an opportunity to comment. The applicant's argument in that regard can therefore not succeed.

Accordingly, I make the following order:

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs.

The 1st applicant in this matter is a business corporation registered in the Netherlands. The other three applicants are commercial farming entities registered in Zimbabwe. The applicants together, directly or indirectly, are the registered owners and leaseholders of Fangudu Farm (the farm). They claim the right to continue to own and occupy the farm for commercial benefit....,.

Background

The applicants together, as I have stated, seek to enforce their ownership and leasehold rights in the farm. They claim protection against compulsory acquisition by virtue of two separate bilateral treaties concluded by the Government of Zimbabwe with the governments of the Netherlands and Malaysia.

On the 21st of January 2005, the 1st respondent published a preliminary notice of his intention to acquire the farm for resettlement purposes. On the 10th of June 2005, he issued an acquisition order compulsorily acquiring the farm. Thereafter, on the 22nd of July 2005, he lodged an application for the confirmation of the acquisition. This application before the Administrative Court has yet to be finalised, having been overtaken by legislative enactment.

On the 8th of August 2006, the 1st respondent caused to be delivered a notice of eviction upon the applicants. Subsequently, an arrangement was negotiated between the parties not to enforce the eviction of the applicants. Nevertheless, on the 8th of November 2006, the 3rd respondent arrived to occupy the farm on the strength of the earlier notice of eviction and his letter of offer dated the 11th of July 2006 from the 1st respondent.

As a result of the 3rd respondent's actions, the applicants filed an urgent application to this Court and were granted a Provisional Order on the 22nd of November 2006.

The present proceedings are instituted to confirm the Provisional Order.

The Issues

The issues for determination in this matter, as I perceive them and as consequently argued by counsel, are as follows:

1....,.

2. The effect of the notice of eviction served by the 1st respondent upon the applicants; whether the applicants are entitled to continue in occupation until evicted by order of a competent court.

The second issue for determination is the effect of the notice of eviction served by the first respondent upon the applicants; whether the applicants are entitled to continue in occupation until evicted by order of a competent court.

Counsel for the applicants submits that the notice of eviction that was served by the first respondent on the 8^th of August 2006, was not properly served. This is because it was handed to the Director of the third applicant at the farm itself and not at its registered office as required by section 40(2)(d) of the Interpretation Act [Chapter 1:01].

Section 40(2)(d) of the Interpretation Act [Chapter 1:01] provides that:

“Where an enactment authorizes or requires a document to be served on any person without directing it to be served in a particular manner, the service of that document may be effected –

(a)...,.; or

(b)...,.; or

(c)...,.; or

(d) In the case of a corporate body, or an association of persons, whether incorporated or not, by delivering it to a director, the secretary, or clerk of the body or association, at the registered or principal office of the body or association, or serving it by post on such director, secretary, or clerk, at such office; or

(e)...,.”

The service of process is provided for in the Rules of this Honourable Court, and in particular Order 5 Rule 39(2) provides:

“Subject to this order, process, other than process referred to in subrule (1), may be served upon a person in any of the following ways –

(a) By personal delivery to that person, or his duly authorized agent;

(b) By delivery to a responsible person at the residence, or place of business, or employment, of the person on whom service is to be effected, or at his chosen address for service.”

The claim being pursued by the first and second respondents is based on an Agreement of Sale signed by their agent on their behalf, and by Douglas Nyahude, as a registered estate agent.

There is no signature for the Sellers.

It is important to note that in terms of that Agreement of Sale, the domicilium citandi et executandi allegedly chosen by the applicants, as Sellers, is Suite 208, 2^nd Floor, Margolis Plaza, Harare Street/Speke Avenue. There was no attempt to serve the summons at the alleged chosen address. The first and second respondents have not even attempted to address the issue of why service was not effected at the allegedly chosen address for service.

The applicants have contended that they do not reside at Plot 17, Kirkman Road, Tynwald.

An examination of the Agreement of Sale being sought to be enforced reveals that the Stand, which is the subject matter of the dispute, is located at Plot 17, Kirkman Road, Tynwald. It is common cause that this is an undeveloped Stand which has been subdivided for the purposes of sale to willing buyers.

The applicants neither reside at Plot 17, Kirkman Road, Tynwald, nor are they employed there. Thus, the only manner in which service could be effected at that address was on that authorized agent.

There can be no doubt that service upon the first applicant's son, at that address, cannot constitute service on the second applicant. Max Gecan was served with summons in respect of the second applicant, at an address where the second applicant neither lived nor worked. It is, thus, not proper service.

The respondents do not state, in the opposing affidavit filed on their behalf, why service on Max Gecan is good service on the applicants. In the Head of Argument, it is submitted that the return of service on the applicants described Max Gecan as the first applicant's son and that this was evidence that the first and second applicants had an interest at Plot 17, Kirkman Road, Tynwald.

In my view, this submission does not go far to show that there was compliance with the Rules. The deliberate specification of places that process is served is meant to ensure that process is served at a place where the defendant, or respondent, as the case may be, is likely to be found. In the circumstances of this case, Plot 17, Kirkman Road, Tynwald, is not a place that either applicant was likely to be found.

A place, in the occupation of another person, at which the defendant occasionally visited, had meals, and slept, is not his residence.

The only reason to serve the summons at Plot 17, Kirkman Road, Tynwald, would, therefore, be, if Max Gecan was an authorized agent for the applicants. There is no suggestion by the respondents that service was effected upon Max Gecan on that basis.

It is not disputed that notice of set down was served after Andrew Benjamin Woodburn Charumbira had died.

Counsel for the first respondent submitted that there was no notification of change of address for service. He further pointed out that the applicant conceded that she was aware of the pending litigation but did nothing.

The argument by counsel for the first respondent was that the applicant was aware of the litigation instituted by her husband but she did not do anything that would have averted the default judgment soon after the husband's death.

The explanation given by the applicant for the default cannot be faulted.

In his founding affidavit, the applicant contends that process that gave rise to the second spoliation order was not served on him. Process was served on the second respondent. This is despite the fact that he is currently based in Tanzania in his capacity as Zimbabwean Ambassador to that country. The second respondent had no mandate to accept service on his behalf.

He further highlighted that when the parties appeared before KARWI J, Mr. Mutsonziwa made it clear that he was representing the Minister of Lands and Rural Resettlement and the Minister of Foreign Affairs only. It was incumbent on Mr. Drury to have sought a postponement in order to effect service on the applicant. He also submitted that Mr. Drury was aware that his firm was representing the applicant. That is why they sought to serve the papers on his firm – under the caveat of abundance of caution.

On the service of the application in case number HC6541/09, counsel for the first, second, third and fourth respondents submitted that the applicant's address for service in Harare was not known. That is why the application, and other process, was served on the Ministry of Foreign Affairs. The Ministry accepted service, and there was no indication that they would not notify the applicant. Out of abundance of caution, counsel for the respondents' attempted to serve the papers on the applicant's legal practitioners but the offices were closed. However, there had been no indication from the applicant's counsel that he had instructions to accept service.

The applicant has averred that the application and notice of set down leading to the default judgment were not served on him in accordance with the Rules of Court. The papers were served on the Ministry of Foreign Affairs. An attempt was made to serve the applicant's legal practitioners but it seems no return of service was ever filed with the court.

Order 5 Rule 39(2) of the High Court Rules provides that -

“(2) Subject to this Order, process other than process referred to in subrule (1) may be served upon a person in any of the following ways -

(a) By personal delivery to that person or his duly authorized agent;

(b) By delivery to a responsible person at the residence or place of business or employment of the person on whom service is to be effected or at his chosen address for service;

(c) In the case of process other than a summons or an order of court, by delivery to that person's legal practitioners of record;

(d) ...,.;

(e) ..,.;

(f) ...,.”

The first respondent was served with the application through service upon one Violet Tanda at the disputed property.

It is not indicated on the certificate of service who Violet Tanda is and in what capacity she accepted service of the court application on behalf of the first respondent as it is common cause that the first respondent left the country immediately after selling the property to the applicant and that the families of the late Samuel Mushaninga and the late Salome Kudzai Chisvo are the ones in occupation of the property.

Not surprisingly, the first respondent did not oppose the application.

I have considered, but have not decided, on the issue whether the purported service on the first respondent in this matter is proper. In view of the conclusion that I reach in this matter, it is not necessary that I determine the issue. I simply raise it to highlight that in another forum the issue will have to be determined before an order can be made against the first respondent.

Further, and in any event, it appears to me that the applicant has approached the court on an incorrect factual basis. It incorrectly, in my view, alleges that it was not served with the court application that yielded the order of 28 April 2010.

It is common cause that the second respondent's return of service indicates that the application was served personally on the Chairperson of the applicant at his homestead in Maodzwa Village in Chiweshe Communal Lands. The deponent to the applicant's founding affidavit confirms that this is his abode, and that he has been resident at this abode since 1918. This whole application was premised on an error by the applicant's legal adviser who clearly misread the return of service and advised his client that service of the application had been effected in Madziwa (Communal Lands) instead of Maodzwa. The similarity in the spelling of the two localities is patent and the error on the part of the legal practitioner may be understandable.

The fact, however, remains that the application was served at the right place and on the right person. It is valid at law.

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a)...,.

(b)...,.

(c) Whether the Frankfurt judgment is contrary to natural justice because of the failure to serve court process properly or at all....,.

Service of Court Process

A foreign judgment will not be recognised or enforced where it is shown, on a balance of probabilities, that it was obtained contrary to the rules of natural justice: see VAN WINSEN, CILLIERS & LOOTS: The Civil Practice of the Supreme Court of South Africa (4th ed. 1997)…,.; Corona v Zimbabwe Iron & Steel Co. Ltd 1985 (2) SA 423 (TkA)…,.

In particular, although a mere procedural irregularity will not debar recognition, there must have been reasonable notice of the proceedings to the persons affected and adherence to the audi alteram partem principle: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2 …,.

The defendant herein avers that it was not properly served with legal process instituting KFW's claim in the Frankfurt court.

However, this averment is clearly belied by the certified translation of the Frankfurt court's ruling (at p.5), wherein it is explicitly stated that the defendant was served with the Complaint on 10 April 2005, and, having been required to answer the Complaint within seven (7) weeks, did not give any indication of its willingness to defend within that time limit.

There is nothing in the papers to counter this position.

It follows that the defendant has failed to establish, on a balance of probabilities, any fundamental violation of the rules of natural justice such as to warrant the non-recognition of the Frankfurt judgment.

The issue of service of the court application in HC6215/08 was dealt with by MUSAKWA J in his judgment. He commented as follows under the heading “Service of Application in case number HC6215/08” –

“As stated earlier, the Deputy Sheriff's returns of service indicate that the application was served on the respondents' relatives. In respect of the first and second respondents, the application was served on Milton Chamboko, who happens to be the respective respondents' son and brother. In respect of third respondent, it was served on Abel Rwodzi, his son. A Deputy Sheriff's return is prima facie proof of service. The contention by the first, second, and third respondents that they were not served or that service was defective cannot be sustained. In any event, the letter by the respondents' legal practitioners to the effect that they had authority to receive service is dated 28 October whereas the respondents were served on 23 October 2008.”

Surprisingly, the summons was never served upon the second defendant although counsel for the plaintiff acknowledged before commencement of trial that the dispute evolved around the second defendant.

The explanation that has been advanced by the applicant for the default is that the summons was not served at its place of business and therefore it was not aware of the suit. It was further contended that the applicant was not aware that its satellite church was operating from the respondent's premises.

I found it difficult to accept the applicant's latter contention that it was not aware that its satellite church was operating from the respondent's premises. It flighted an advertisement in The Herald for a “Super Sunday Service” to be held at the premises on 15 March 2009. The contact details on that advertisement are those of the applicant's head office at corner Bishop Gaul and Rekai Tangwena Road, Harare. In fact, Pastor Ruth, who is the deponent to the applicant's founding affidavit, attended service at the respondent's premises. She cannot therefore be heard to be saying that she was not aware that the applicant's satellite church was operating from the respondent's premises. However, the fact that the applicant may have been aware that its satellite church was operating from the respondent's premises does not, in my view, translate to knowledge that summons were served at the premises. There is no evidence that Stowell Mupanguri advised the applicant of the service of the summons. It appears that the respondent was, in fact, aware that the applicant might not have received the summons because although it served the summons at the respondent's premises, the Notice of Seizure and attachment was served at the applicant's place of business at corner Bishop Gaul Avenue and Rekai Tangwena. There was no explanation from the respondent why service of the Notice of Attachment was not at the same address where the summons was served.

The fact that the applicant may not have been aware of the summons may therefore be true.

The respondents did not even bother to serve the third respondent, and if they did, they served the process on themselves!

In response to arguments in support of the points in limine the applicant submitted that he only became aware of the default judgment on 4 February 2011 when a notice of ejectment was served on his nephews who in turn alerted him.

He does not reside at the property.

The applicant submitted that the application for rescission was filed within a month upon him having had knowledge of the judgment. That, he argued, was in accordance with the court Rules.

The applicant went on to correctly submit that “the effective date from which one month must be calculated, as set out in the Rules is the date when he became aware of the judgment and not the date the judgment was granted.” The judgment was granted on 3 December 2008. The applicant submitted that he only became aware of the judgment on 4 February 2010 whereupon he filed this application for rescission on 5 March 2010. It was therefore argued that there was no need to apply for condonation as submitted by the first respondent.

There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn.

Non-compliance with Order 33 Rule 256

The first point is that the application was filed out of time.

It is alleged that the applicant fell foul of the provisions of Rule 259 of the High Court Rules as it was filed after the eight (8) week period.

The decision by the President i.e. the fifth respondent was made on 7 May 2007. The decision was communicated to the second respondent by letter dated 8 May 2007. The second respondent attempted to communicate this decision to the applicant by a letter dated 30 May 2007. Unfortunately, the letter was misdirected to a non-existing address, viz “132 Iona Road, Pilani, Bulawayo.”

It is beyond dispute that this address does not exist and that the letter did not reach the applicant.

It is trite that the running of the eight (8) week period, supra, only starts from the time the applicant is notified of completion of the proceedings.

In Clan Transport Co (Pvt) Ltd v Road Service Board 1956 (4) SA 26 (SR)…, it was stated -

“To my mind, when an administrative body, such as the present Board, is called upon to perform functions of a semi judicial character, the delivery of its judgment on the issue before it is as much a part of its proceedings as its deliberations and the arrival, after discussion, at its conclusion.

Until its conclusion has been clothed with finality, by its communication either in open sitting, or by its administrative officer to the parties, I find it difficult to see on what ground a party could legitimately attack any subsequent unanimous decision by it to reconsider the matter and reverse the conclusion at which it had at one stage arrived…,. I have come to the conclusion that the Board's proceedings terminated only on communication of its decision in April 1956.”…,.

Further, in Vrystaat Estates (Pvt) Ltd v President, Administrative Court & Ors 1991 (1) ZLR 323 (S)…, McNALLY JA said –

“No authority is necessary for the proposition that the eight weeks cannot possibly apply to an applicant who does not even know of the decision for far longer than eight weeks after it was made, precisely because he was not informed of the proceedings as he should have been.

Indeed, it seems to me to be artificial to seek to apply the eight weeks rule as from the date the appellant became aware of the proceedings. The Cluff Minerals case 1989 (3) ZLR 338 (SC) and the Clan Transport case 1956 R & N 322 at 325-6 were concerned with the date when the proceedings were terminated. They decided that this was the date when official notice of the decision was communicated to the party concerned.”…,.

See also Gula-Ndebele v Bhunu NO HH14-10.

This should put this half-hearted argument to rest, because, in casu, the termination of the appointment proceedings was only communicated to the applicant, by the third respondent, on 4 September 2009. The purported proof of the first respondent's appointment was only released to the applicant on 9 September 2009. This application was filed two days later, on 11 September 2009.

This point is devoid of merit.

In the draft order, the applicant also seeks a declaration that the bar effected against her be declared to be null and void.

The applicant was served with the summons in Case No. HC3979/11 on 9 May 2011. She entered appearance to defend on 19 May 2011. In the notice of appearance to defend, the applicant gave her address as c/o Pepita – Fes, No.69 Central Avenue, between 6^th and 7^th Streets, Harare. On 6 July 2011, a notice of intention to bar was served at the given address. It was received on behalf of the applicant by T. Chirere, who is described in the Deputy Sheriff's return of service as “Pepita Marketing Secretary”. The applicant was subsequently barred for failure to file her plea….,.

Order 9 Rule 63 provides that a party against whom a judgment has been given in default may apply to this court for the rescission of that judgment within a period of one month after he has had knowledge of the judgment. If the court is satisfied that there is good and sufficient cause to set aside the default judgment it may grant the application. In considering whether good and sufficient cause has been shown for the court to exercise its discretion in favour of the applicant, the court will take into account the reasonableness of the applicant's explanation for the default, the bona fides of the application to rescind, and the bona fides of the defence on the merits of the case and whether that defence carries some prospect of success. The above factors are considered not only individually but in conjunction with one another and with the application as a whole. See Stockil v Griffiths 1992 (1) ZLR 172 (S)…,; Mdokwani v Shoniwa 1992 (1) ZLR 269 (S)…,. A point made by this court, and upheld by the Supreme Court, is that while the above factors are relevant, the superior courts should not readily and unnecessarily fetter their discretion in determining whether in any particular case good and sufficient cause exists for a default judgment to be set aside. Deweras Farm (Pvt) Ltd v Zimbabwe Banking Corporation Ltd 1997 (2) ZLR 47 (H); Deweras Farm (Pvt) Ltd & Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S)…,. But, that discretion must, of course, be exercised judicially….,.

As regards the explanation for the default, the applicant states as follows:

“I was never served nor did I have sight of the notice to plead with intention to bar. The notice to plead with intention to bar was served at Number 69 Central Avenue, Harare and not on me personally but on one T. Chirere whom I do not know and whom I never gave authority to receive such important documents on my behalf and whom (sic), in turn, never notified me after having received the notice to plead with intention to bar.”

The applicant's statement that she was never served with the notice of intention to bar is false. The notice was properly served at her given address for service. The applicant is mistaken in thinking that there was need for personal service of the notice. The applicant made no effort to produce an affidavit from T. Chirere who received the notice on her behalf. That person is recorded in the Deputy Sheriff's return of service as Secretary at Pepita Marketing, the applicant's chosen address for service. She should have established who that person is and what he or she did with the notice if indeed the pleading was not handed over to her. The applicant took a casual approach to the matter and took comfort in sheltering behind the assertion that she does not know T. Chirere. That explanation is thoroughly inadequate and inherently unconvincing.

Further, the applicant does not explain what prompted her legal practitioners, who had not even assumed agency in the matter, to make “follow ups with the High Court” if she genuinely believed that all that was required at that stage was the filing of her plea. The natural thing to do was for her, or her legal practitioners, to check at her given address for service for any documents which might have been served. This was particularly so given that the notice of intention to bar was served upon her more than one and a half months after she had entered appearance to defend. She suggests that she wanted to file her plea some six months after she had entered appearance to defend. The draft plea, which is annexed to her founding affidavit, marked “A”, is dated 9 November 2011. That is unacceptable as an explanation for her default.

It was submitted for the first respondent that on 4 March 2014, the second respondent attempted to serve the applicant with the summons and the declaration at 90 Speke Avenue, Harare. He reported back to the first respondent that the applicant had moved offices. The second respondent was thereafter instructed to proceed to serve the applicant at its new head offices in Msasa.

The return of service identified the person who received the service as Nancy Muzodza. Nancy Muzodza is the same person as Sarudzai Muzodza. The second respondent would not have identified her by name if he did not attend at the applicant's head office. The return of service of the Sheriff or his deputy is indeed prima facie evidence of the matters contained therein. (See section 20(3) of the High Court Act [Chapter 7:06]; Gundani v Kanyemba 1988 (1) ZLR 226 (S); and Wattle Company (Pvt) Ltd v Inducom (Pvt) Ltd 1993 (2) ZLR 108 (HC)). However, the presumption is capable of being rebutted by clear and satisfactory evidence. (See Gundani v Kanyemba 1988 (1) ZLR 226 (S)…,.).

The applicant did not dispute the first respondent's submission that the second respondent did attempt to serve summons at the applicant's old offices and was redirected to the new offices in Msasa. Ms Muzodza's explanation that the second respondent had been interacting with the applicant over the past 6 months and hence might have known her name does not hold water. Firstly, there is no explanation as to the context of that interaction. Secondly, it was conceded by counsel for the applicant that whilst Ms Muzodza's first name is stated in her affidavit as “Sarudzai” she is also known as “Nancy”. The second respondent would not have known this other name unless he served the summons and declaration on Muzodza. Thirdly, if the second respondent had been interacting with the applicant “in the past 6 months” in whatever context and would meet Ms Muzodza, he surely knew that the applicant was no longer at 90 Speke Avenue, Harare. There would therefore have been no need for him to attempt to serve process on 4 March 2014 at an address he knew the applicant no longer occupied.

Ms Muzodza's averments as to the procedure to receive legal process were not supported by an affidavit from the powers that be within the applicant company given that Ms Muzodza and Ms Mukwewa are both receptionists. One would have expected the procedures to have been documented somehow in a company as big as the applicant. If they were verbal, one would have expected support from the relevant senior persons within the applicant company that a receptionist on the ground floor is not authorized to receive legal process whilst the one on the first floor is duly authorised. This would, no doubt, have bolstered the applicant's case.

In the absence of such support, I find that the applicant has failed to present a reasonable and acceptable explanation for its default.

Of concern to the court is that it appears that the applicant cast unsubstantiated aspersions of fraud at the second respondent by referring to the case of Mutebwa v Mutebwa and Anor 2001 (2) SA 193. In Mutebwa v Mutebwa and Anor 2001 (2) SA 193, the situation was different. The Deputy Sheriff in that case had filed a patently false return with the court upon which divorce was granted. It was proved in that case that the applicant had been out of the country when legal process was alleged to have been personally served on him. There was therefore positive evidence challenging the service. Mutebwa v Mutebwa and Anor 2001 (2) SA 193 is an apt example of what the applicant should have proved.

There was no such evidence adduced in the present case.

The mere fact that Ms Muzodza had been in the applicant's employment for 27 years did not form a basis for believing her. The applicant could not explain what the second respondent would benefit by lying that the legal process was served on the applicant. Ms Muzodza did not state that she was not at work on the date the summons were served and therefore would not have received service. Counsel for the applicant submitted that he could not say who between the second respondent and Ms Muzodza was saying the truth. The court would have to consider the probabilities of who was not telling the truth between an officer of the court and the applicant's employee. If the applicant is having difficulties at this stage, one wonders how it would surmount the difficulties in the application for rescission. The second respondent is a public officer who is not interested in the outcome of the case. Ms Muzodza is an employee of the applicant of 27 years who is likely to face censure for not bringing legal process to the attention of the relevant authorities. Jane Mukwewa is another employee like Ms Muzodza. The applicant cannot expect the court to believe that there would not be someone of higher authority in the applicant company to explain the procedure or produce documentation regarding service of process.

As submitted by counsel for the first respondent, the probabilities favour an officer of the court in the absence of any allegations of impropriety against the officer. The alleged recipient of the service normally has a strong motive to claim that proper service did not take place. (See Fox and Carney (Pvt) Ltd v Sibindi 1989 (2) ZLR 173 (SC)).

The appellant in Gundani v Kanyemba 1988 (1) ZLR 226 (S) was also not able to satisfy the court that he had not been available to receive process. The court found that the appellant's denial was insufficient to rebut the presumption that the summons had been served upon him. It was further found that his failure to react to it could only be taken as a deliberate intention not to defend the action. The same fate falls on the applicant in this matter.

The applicant has also taken issue with service of the application for rescission upon her legal practitioners.

I had deferred the grant of the order and told counsel for the applicant that I was concerned with the conduct of the Sheriff's office in Bulawayo and found it necessary to give reasons for the order that I was going to make in order to highlight my concerns over the operations of that office.

This is an application for rescission of judgment which should not have been opposed at all - especially in light of the fact that the Assistant Sheriff, who purportedly served the first respondent's application, has not bothered to dispute the claim that he did not serve the application even after being openly challenged on his return of service used as a locomotive for the delivery of a default judgment granted against the applicants; a default judgment granted even against the first applicant despite the apparent lack of service upon him.

The office of the Sheriff, which only recently was clothed with wider responsibility to serve virtually all processes of this court, including those which previously could be served by legal practitioners or their employees, should be reformed pretty fast before the administration of justice in this part of the country grinds to a halt. 

It should be reminded to take that task seriously. 

Accusations of false service, fake returns of service and no service at all until the date of hearing are becoming louder by the day in this part of the country where, perhaps owing to lack of supervision, representatives of the Sheriff think they are holiday-making. It must be said now, and in an effort to nip the rot in the bud, that this court transacts very serious business whose outcome affects the lives of members of the public as well as public institutions. In doing so, this court relies heavily on the goodwill, diligence and indeed trustworthiness of the assistants of the Sheriff tasked with the responsibility of serving court process and submitting returns of service which the court uses to determine matters. 

After all, the Sheriff is an officer of the court and his return of service is prima facie evidence of service: Croco Properties (Pvt) Ltd v Swift Debt Collectors (Pvt) Ltd t/a Ruby Auctions HH220-13.

In that regard, the submission of a false return of service is not only a travesty of justice but an affront to the dignity of this court. It must, where proved, be severely punished in order to discourage those among the assistants of the Sheriff who are lazy to deliver process and think they can “serve” process by Bluetooth while sitting in their offices only to hoodwink the court by submitting fake returns. What is even worse is that such a rogue officer would still levy a fee for lying which litigants have to cough up their hard earned money to settle.

On the night of 13 January 2015, the first respondent was misbehaving at the Beitbridge Border Post in his Toyota Noah motor vehicle, registration number ABH 1651, when his motor vehicle was seized and he was promptly issued with Notice of Seizure number 043793I. It is said that he used an undesignated entrance point to enter the customs area, in contravention of section 22 of the Customs and Excise Act [Chapter 23:02]. Although his vehicle had been lawfully impounded, the first respondent is said to have used the cover of the night to 'steal' his motor vehicle, driving it out of the border post under circumstances which suggested that he used it to facilitate the smuggling of goods which were in it.

In so doing, the first respondent committed even more infractions against the law. The vehicle was only recovered later after it had been abandoned on the Zimbabwean side.

The first respondent petitioned the first applicant regarding the penalty that had been assessed for him as he pleaded for mercy. Although the penalty was reduced from $5,000= to $2,000= - he did not pay. He opted, instead, to approach this court by court application filed in HC497/15 on 25 February 2015. He sought, in that application, an order directing the first and second applicants to release his motor vehicle, never mind the due process in terms of the Customs and Excise Act [Chapter 23:02] being enforced by the applicants and that he had not paid the assessed penalty.

It was always going to be very difficult for the first respondent to obtain the relief that he sought in the circumstances of this matter as I have outlined them. His best bet was to proceed with his application unopposed. That way, his conduct at the border on the fateful day would remain unknown to the court. It is after having regard to that background that the significance of the Sheriff's assistant, by the name P. Moyo's, intervention may be properly understood. According to that Assistant Sheriff's return, on 25 February 2015, he served the process at Zimra, 5^th Floor Mhlahlandlela Government Complex in Bulawayo. He further remarked:

“Chamber application served on M. Gwatidzo, an employee for the defendant who accepted service on behalf of the defendant.”

It is that return of service which was relied upon in obtaining default judgment against the applicants on 2 April 2015 in HC497/15.

But then, that return has its inherent frailties.

The process which should have been served is a court application and not a chamber application. As to where P. Moyo obtained a chamber application to serve when HC497/15 is a court application, we do not know. The process is said to have been served upon an employee of the second applicant by the name of M. Gwatidzo. We are told that the second applicant employs no such person. The only employee with the name closest to that is one Kokerai Gwatidzo who is not based at 5^th Floor but says he is at the ground floor. He says he had dealt with P. Moyo on a previous occasion and suspects that he may have conjured his name from that previous engagement, and, owing to the fallibility of human memory, probably got the initials gravely wrong, thereby betraying the falsity of the return.

That is not all.

The Assistant Sheriff completely forgot that there was need to serve the process on the first applicant who was the first respondent in that matter. This is so because, not only was he cited in the application, an order was also sought and granted against him. In the heat of fabrication the first applicant was left out.

As I have said, the Assistant Sheriff in question was challenged on that return of service, not only through this application wherein he is cited as a party but was also confronted by Gwatidzo and T. Mazuru on 13 April 2015 to explain his return. He did not give a satisfactory answer. He has not seen the wisdom to favouring the court with an explanation either. 

It is trite that whatever is not disputed in affidavits is taken as admitted.

The applicants now seek the rescission of the order made on 2 April 2015 on the basis that they were not served with the application and that they have a bona fide defence to the application. 

Self-acting, the first respondent filed opposition to the application. He says whether or not the application was properly served is not his business. He gave the application to the Sheriff for service and got a return of service. That is enough. The applicants have no defence at all. He also says something about the order he sought not having been against the first applicant.

I have said that the application should not have been opposed.

It is a Rule 63 application, and, in terms of Rule 63(2), the court may set aside a judgment given in default where there is “good and sufficient cause” to do so. The factors which the court will take into account in determining good and sufficient cause have been discussed in a line of cases which include Roland and Another v McDonell 1986 (2) ZLR 216 (S); Sangore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210; Stockhill v Griffiths 1992 (1) ZLR 172 (S).

They are;

(i) The reasonableness of the applicant's explanation for the default;

(ii) The bona fides of the application for rescission of judgment;

(iii) The bona fides of the defence on the merits; and

(iv) The prospects of success of that defence.

In the course of this judgment, I have shown why the applicants were denied the opportunity to defend the application by what appears to have been a fake return of service; to the extent that the first applicant was concerned, judgment was granted when there was no proof of service at all upon him. I have also shown how the first respondent transgressed the law at the Beitbridge Border Post thereby entitling the applicant's to seize his motor vehicle. I am therefore satisfied that the applicants have discharged the onus of establishing 'good and sufficient cause' for the rescission of the impugned order.

In the result, it is ordered that:

1. The order of this court granted in favour of the first respondent on 2 April 2015, in HC497/15, be and is hereby rescinded.

2. The applicants shall file their opposition to the application within 10 days of the date of this order.

Another issue was whether Steelbase was aware, or whether it ought to be deemed to have been aware, of the set down of the matter.

This issue arose because the notice of set down had been served by the Sheriff on Gill, Godlonton & Gerrans. In their notice of renunciation of agency, Gill, Godlonton & Gerrans had given, as Steelbase's last known address, the name of some road in the heavy industrial sites of Harare. The area seemed outside five kilometres of the radius of the court. So the issue was: given that Gill, Godlonton & Gerrans had renounced agency and yet the notice of set down had still been served on them, had that been proper service?

On the 14^th day of January 2016, a default judgment was entered against the applicant.

The first respondent subsequently obtained a writ of execution which he used to attach several of the applicant's property on 23 February 2016. Upon being served with the inventory and a copy of the relevant default judgment, the applicant filed an application for rescission of the default judgment.

This, therefore, is an application for stay of execution, on an urgent basis, pending the finalisation of the application for rescission of judgment….,.

As regards prospects of success in the application for rescission, it was submitted that the applicant has bright prospects of success. Taking into account that the critical factor for consideration is whether there is good and sufficient cause to rescind the judgment, it was contended that in casu there is indeed good and sufficient cause to have the default judgment rescinded for the following reasons:

(a) The applicant was not in willful default when it failed to enter appearance to defend the main action in that its representatives never saw the summons and declaration which was served at “Bayhorse Road, Hanz Cross Farm Chakari by way of affixing to the outer principal gate after a male employee refused to accept service for fear of victimization.” Also annexure G, which is the security guard's 'Occurrence Book', does not reflect a record of any such visit by the 2^nd respondent.

(b) The applicant operates a gold milling site at No.34 Chakari which is opposite Hanz Cross Farm. There is a main gate entering into applicant's gold milling site. On the other hand, there is also a main gate entering into Hanz Cross Farm main gate. Further, it was argued that the second respondent attempted to attach property at Hanz Cross Farm where he had earlier on served summons. He was then re-directed to the applicant's mine. Finally, it was submitted that the second respondent was mistaken as to the applicant's precise location. Consequently, it cannot be said that the applicant was knowledgeable of the action, its legal consequences and consciously and freely took a decision to refrain from giving notice of intention to defend….,.

The application was vigorously opposed by the first respondent who went as far as accusing the deponent of the founding affidavit of perjury.

It was contended that the papers were served on the applicant and that service is proper. Reliance was placed on the return of service which is Annexure A. The first respondent argued that the fact that the same address for service is the same address where attachment was carried out shows that service was effected on the correct address. The averment that process was served on the wrong address remains bold, unsubstantiated and unreasonable in that no supporting affidavit was attached from the alleged employee at Hanz Cross Farm who re-directed the second respondent after he got lost….,.

The second respondent did not oppose this application but contested the prayer to pay costs.

In paragraph 4 of his report, the Additional Sheriff states;

“4. Summons were not affixed on the Hanz Cross Farm main gate as alleged. However, a diligent consultation was sort (sic) at Hanz Cross Farm before affixing at the principal gate (boom gate) for the applicant.”…,.

What boggles the mind is that the Deputy Sheriff denies what is exactly on his return of service. It shows that the summons and declaration were served at “Bayhorse Road, Hanzy Cross Farm Chakari.”

This is not the applicant's address.

The correct address of the applicant is 34 Chakari which is opposite Hanz Cross Farm. The Deputy Sheriff does not provide further details of the location of the applicant's milling site. He does not describe what was written on the gate and why he believes the applicant's address for service is Hanz Cross Farm. In my view, where there is a challenge, the Sheriff must do more by way of giving precise details of the location of the party's physical location.

In casu, his report is brief and does not assist the court in deciding the key issue. See Croco Properties v Swift HH20-13.

For these reasons, I find that the applicant has established the requisites for an application for stay of execution pending the determination of an application for rescission of the default judgment. Accordingly, it is ordered that pending the return date, the applicant is granted the following relief:

1. That execution of the judgment issued by this court on 14 January 2016 be and is hereby stayed and if the second respondent has removed any of the applicant's property pursuant to execution he is hereby ordered and directed to release the removed property upon service of this order.

The applicant denies being in default on account of the fact that the summons were never served upon him at his last known address in accordance with the Rules.

Whilst summons were served, they were in fact served at the family residence. He says that his mother, the first respondent, was fully aware that he was no longer residing at 4129 Twiza Way at the time that the summons was issued and that he was in fact now residing at 2 Camel Ave, Cnr 8^th Ave and Herbert Chitepo. His mother, together with the rest of the siblings, reside at 4129 Twiza Way which is where they have resided, inclusive of the applicant, although the applicant says that he had moved….,.

The respondent's narrative is that she indeed issued the summons in question under HC708/15 and used the family home address as that is the address she knew for the applicant. Whilst the respondent had moved out of his own accord he continued to come home as and when he wanted. She denies that default judgment took him by surprise as he deliberately ignored court processes from his brothers to come and collect the relevant documents. She draws on the fact that she had, in fact, previously issued some summons in 2013 under HC6791/13 which had later been withdrawn seeking to cancel the applicant's title and to put the property into all the children's name and that the process in that matter had indeed also been served at the family residence. He had, in that case, been advised of the court process and had indeed come to collect. Her other son had in fact sworn an affidavit of his efforts to get the applicant to come and collect the relevant court papers in question….,.

The grounds for rescission of a judgment made in default are well set out.

There must be must be a satisfactory explanation of why the applicant was in default. The bona fides of the applicant to rescind the default judgment is also considered whilst there must also be a reasonable defence on the merits which carries some prospect of success. See Stockhill v Griffiths 1992 (1) ZLR 172 (S) and Mdokwani v Shoniwa 1992 (1) ZLR 269 (S).

The applicant's explanation that he had moved on to a new address which his mother should have used.

It is true that when the summons were issued by his mother in 2013 they were sent to the family address and that when he responded to those summons he used his address as…, and had, thereafter, engaged a firm of lawyers to represent him. It is also, however, true that the summons in that matter had been bought to his attention by his brother.

This court has a reasonable basis for concluding that having been advised to come and collect his court papers it is the applicant who deliberately refrained from doing so in this instance because of his own suspicions as to what the papers may have been about. The choice to cut himself off completely from the rest of the family was his own.

In any event, even if the applicant is said to have a reasonable explanation for his default this ground is not looked at in isolation. The…, prospects of success must also be looked at.

Counsel for the first respondent submitted that the applicant avoided to explain why he did not have sight of the first respondent's summons instituted in the action proceedings under case HC5914/12.

According to counsel for the first respondent, the summons, as well as the Notice of Attachment of the applicant's property, were served at the same address, which is the applicant's immovable property. No explanation was proffered from the applicant's tenants why they did not bring the summons to the attention of the applicant.

Annexures 1 and 2 are the Deputy Sheriff's returns showing that the processes were being served at the applicant's residence…,.

The applicant's explanation is that he was away in Mhondoro…,.

It was counsel for the first respondent's contention that the applicant cannot hide behind, and blame, his tenants for not bringing the court processes to his attention….,.

More importantly, the applicant's son, one Milton Mupfumira, has been aware of the existence of the court order in case HC5914/12 since the 13^th of October 2014 and has been making efforts to come up with a payment plan to pay off the amount owed to the first respondent….,.

Counsel for the first respondent referred to annexures 7, 8, 9 and 10. These referred to a string of email exchanges between the said Milton Mupfumira and the first respondent's legal practitioners.

From the…,. correspondence there is no basis for the applicant to blame the tenants. His own son was aware of the court processes. It has not been explained why the son did not bring all this to the father since October 2014.

This is an urgent chamber application seeking the stay of execution of a High Court judgment pending an appeal noted under SC255/14. When this matter was set down before me, on 12 June 2014, I dismissed the application with costs and intimated to the parties that the reasons would follow in due course. These are they.

The background of the dispute is as follows.

The applicant has been a lessee of the first respondent since 9 October 1978. The first respondent and Greatermans Stores (Rhodesia) Limited entered into a Notarial Deed of Lease Agreement in 1968, which lease was renewed from time to time. Greatermans Stores (Pvt) Ltd then, by notarial deed, assigned the lease to the applicant, who then became the first respondent's tenant. There has been litigation between the parties before. Suffice it to say that, in terms of an arbitral award dated 18 June 2009, the lease between the parties was to end on 28 February 2014.

On 1 October 2010, one of the applicant's directors wrote to the first respondent indicating that it would not contest the first respondent's right to take back the premises at the expiry of the lease, that is, on 28 February 2014. On 29 January 2014 the applicant's lawyers wrote to the first respondent's lawyers, indicating that the letter of 1 October 2010 did not have the effect of waiving its right to occupation of the premises beyond 28 February 2014. The first respondent responded by informing the applicant that it had always been the understanding between the parties that the premises would be vacated by 28 February 2014 and that the applicant had actually allowed the first respondent's personnel to visit the premises in 2013 to prepare for the restructuring and refurbishment of the premises. The parties could not agree and the applicant stated that it would remain in occupation of the premises as a statutory tenant.

On 3 March 2014, the first respondent issued summons for ejectment out of the High Court and served the summons on a receptionist in the applicant's employ at Jaggers Msasa, along Mutare Road. The receptionist refused to accept service and a copy was left on her desk. The applicant did not defend the matter and default judgment was entered against it on 6 May 2014. The allegation is that there was no proper service on it of the summons and it did not know that it was being sued for eviction. A writ of execution was drawn up and the applicant was evicted by the second respondent on 16 May 2014.

The applicant proceeded to file an application for rescission of judgment under HC4562/14 and filed an urgent chamber application for stay of execution under HC4018/14. The application for stay of execution was dismissed by the High Court and the applicant noted an appeal before this Court under SC255/14. That appeal is yet to be heard.

The applicant has filed this application for stay of execution pending the hearing of that appeal.

The applicant needs to lay a strong case for the grant of the relief sought. The summons was served on one Nancy Mazodze who refused to accept service. The applicant has tried to disown this version of events as detailed by the second respondent.

The law is settled, that, in order to disprove the contents of a return of service prepared by the Sheriff, there is need for positive evidence to rebut the presumption of regularity of a return of service which is in the prescribed format.

In Gundani v Kanyemba 1988 (1) ZLR 226 (S) Gubbay JA…, had this to say…,:

“I am satisfied, therefore, that the Messenger's return, stating as it did that personal service of the summons had been effected on 9 February 1985, cast the onus upon the appellant to prove, by the adduction of clear and satisfactory evidence, that the return was wrong. In other words, it was for the appellant to rebut the presumption of personal service arising from what was contained in the Messenger's return.

It was Mr Rajah's alternative contention that the appellant's bald allegation that the summons was not served upon him was sufficient to discharge the onus or rebut the presumption.

I am unable to agree.

The appellant did not claim to be at his place of employment on the morning of Saturday, 9 February 1985. Nor did he even profess an inability to remember precisely where he was or what he was doing. But, assuming he suffered a lapse of memory (which would be understandable for the summons in question was allegedly served nine months before the civil imprisonment summons), he could nonetheless have given some indication to the court, supported by the affidavit of a third party, of how he normally spends his Saturday mornings. For instance, whether he usually goes shopping, plays sport, visits relatives, or takes the children to the park. No attempt was made to say where he thought he may have been on the morning in question.”

The maxim omnia praesumuntur rite esse acta applies to a return of service effected by the Messenger of the Court; Gundani v Kanyemba 1988 (1) ZLR 226 (S).

The applicant's version is that the summons was never served on it. It said that the receptionist, on whom the second respondent says it served it, was not authorised to accept service of legal process. There is no affidavit from the applicant explaining who was authorized to accept service on behalf of the applicant. In the absence of such an explanation, there is no reasonable explanation to disprove the version of events as stated by the second respondent.

The applicant's explanation for his default is that he was not aware of the date of the set down. The Notice of Set Down was not served upon him. It was served at an address in the United Kingdom at which he did not reside. That address was stated as his last known address in the notice of renunciation of agency which was filed by his legal practitioners when they renounced agency.

That fact does not take away the reasonableness of the explanation for default, which is that the applicant did not see the Notice of Set Down and was not, therefore, aware of the date of the pre-trial conference.

Indeed, even in cases where service was effected at a party's domicilium citandi et executandi the courts have been prepared to accept as reasonable an explanation tendered by the party if he did not see the papers. See Stockil v Griffiths 1992 (1) ZLR 172 (S)…,.

Pursuant to the judgement which MATHONSI J granted to the first respondent under case number HH516-14 (ref HC8415/13), the first respondent did, on 15 October 2014, issue an application out of this court. The application was filed under case number HC9133/14. He cited the applicant, the second, third and fourth respondents.

The first respondent was served with opposing papers at the end of October 2014. He did nothing from the mentioned period to the time that the applicant filed this application. The Rules required him to have filed an answering affidavit or to have set the matter, which related to the application, down for hearing. He should have pursued either of the stated matters within one month which is calculated from the date that the opposing papers were filed with the court…,.

The record shows that:

(a) The applicant filed his opposing papers to the applicant's application on 28 October 2014; and

(b) The second and third respondents' opposing papers to the same were filed with the court on 30 October 2014.

It is evident that the applicant should have complied with Order 32 Rule 236 in early December 2014 or so soon thereafter. He did not do anything at all. He, in fact, remained inactive for the whole of November and December 2014. He only reacted on 28 January 2015 when he filed his notice of opposition to the applicant's application for dismissal of application for want of prosecution.

The first respondent's opposing papers were not in the record when the court dealt with the application on 4 February 2015. The court cannot tell where they were. It, accordingly, granted the order by default. The order is dated 4 February 2015.

On 18 February 2015 the first respondent's legal practitioners addressed a letter to the Registrar of this court. The Registrar received it on the following day, and, with speed, placed it before the court for its attention.

The letter which the legal practitioners wrote read, in part, as follows:

“RE: APPLICATION HC271/15 BY JOSEPH MANDIZHA V CHEN WANG AND OTHERS

We refer to the above in which the Chamber Application by Mr Mandizha was granted by the Judge on the 4^th of February 2015. We understand from you that our Notice of Opposition to that application was not amongst the Judges papers and he therefore granted the order by default.

However, we attach our Notice of Opposition which was filed timeously with the Registrar on 28^th of January 2015 and was served on other respondents. In the circumstances we believe that the default order was erroneously granted and we request the learned judge to set aside the order in terms of Rule 449 of the High Court Rules.”

The first respondent attached to the letter his Notice of Opposition.

The Notice was filed with the Registrar on 28 January 2015. It was, therefore, filed before the default order was granted to the applicant. It is on the mentioned basis that the first respondent submitted that the order was granted in error, and should, therefore, be corrected in terms of Rule 449 of the rules of this court.

Rule 449 confers a discretion and power on the court to correct, rescind or vary any judgement or order that was erroneously sought or erroneously granted in the absence of any party affected by the judgement or order…,. It reads:

“CORRECTION, VARIATION AND RESCISSION OF JUDGEMENTS AND ORDERS

1. The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgement or order -

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.; or

(c)…,.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless it is satisfied that all parties whose interests may be affected have had notice of the order proposed.”…,.

There is no doubt that the order which the court granted to the applicant affected the first respondent's interests in an adverse manner. That order was, however, made with the full knowledge of the first respondent.

The Rule which the first respondent relied upon enjoined him to have filed an application with the court. He addressed a letter to the Registrar.

A letter and an application are two different pieces of paper altogether.

An application falls into the realms of court process and a letter does not fall into that category of papers. It cannot, therefore, be stated that the first respondent complied with the Rule when he wrote the letter as opposed to him having filed, on notice to other parties, an application with the court.

Subrule (2) of Rule 449 prohibits the court from making any order which corrects, rescinds or varies a judgement or order unless it is satisfied that all parties whose interests would be affected by its order have been notified of the proposed order.

The first respondent did not state, in the letter, that other parties who are part and parcel to his case were notified of what he prayed the court to grant him. Admittedly, copies of the letter which he addressed to the court were apparently forwarded to the parties. It is not known if they saw the letter - let alone took the trouble to read its contents. The mere fact that the first respondent showed, underneath the writer's signature, that copies were forwarded to the other parties is not enough. The first respondent should have done more than what he did in his effort to satisfy the court that adequate notice was served on the parties. 

Some form of stamp and signature of the served party, if such was attached to the letter, would have sufficed in the absence of certificates of service.

A company is a person. It is a juristic person, or, in legal parlance, a legal persona, but all the same a person. It has an identity separate from that of its members. It can own property independently of, and separately from, its members. Thus, a company's assets are not the members' assets.

These cardinal principles seem to have been purposefully ignored or inadvertently overlooked in this matter. The result has been prolonged litigation for over five (5) years.

The facts were largely common cause.

The plaintiff was a duly registered private company. At all relevant times, prior to 16 June 2008, its major asset was an immovable property situate Stand 12896 Salisbury Township, measuring 3,066 square metres, held under Deed of Transfer No.39/76 and otherwise known as 98 Churchill Avenue, Gunhill, Harare (hereafter referred to as “the property”). Its principal officer, in the sense of being the majority shareholder and director, was the third defendant (hereafter referred to as “Sandra Muir”).

On 21 May 2008, this court, MTSHIYA J, granted a default judgment in HC1393/08. This followed an application by the first and second defendants herein who therein were the first and second applicants respectively. Hereafter, I shall refer to the first and second defendants as “Mr and Mrs Gurupira” or “the Gurupiras”. The default judgment effectively directed the plaintiff herein, the first respondent therein, to transfer the property to the Gurupiras. Sandra Muir, the second respondent therein, was ordered to sign the necessary papers within 10 days of the order failing which the Sheriff, who is the fourth defendant herein, or the Deputy Sheriff, who is the fifth defendant herein and was also the fifth respondent therein, would sign the transfer papers in place of Sandra Muir. The order by MTSHIYA J read as follows:

“IT IS ORDERED THAT;

1. The 1^st Respondent [the plaintiff herein] is hereby interdicted from transferring the property known as No.98 Churchill Avenue, Harare, also known as a certain piece of land situate in District of Salisbury Township Lands measuring 3,066 square metres under Deed of Transfer 39/76 to anyone except the 1^st and 2^nd Applicants.

2. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd Respondent [Sandra Muir] is directed to sign all the necessary documents to finalise the transfer within 10 days of the Order.

3. Should the 2^nd Respondent fail or refuse to sign the necessary documents to effect transfer the 4^th or 5^th Respondent [Sheriff and Deputy Sheriff respectively] are hereby directed to sign all the necessary documents to effect the transfer by the 3^rd Respondent [Registrar of Deeds] to 1^st and 2^nd Applicants.

4. The 1^st and 2^nd Respondents shall bear all the costs of this application on attorney-client scale jointly and severally one paying the other to be absolved.”

The order was granted in default of appearance by the plaintiff and Sandra Muir.

Through their erstwhile lawyers, Manase and Manase, the Gurupiras said they had served their application in HC1393/08 in a letter-box at the property.

Following that default judgment, the property was transferred to the Gurupiras on 16 June 2008 under Deed of Transfer No. 4778/2008. The then Deputy Sheriff for Harare had signed the transfer papers. Manase and Manase had been the conveyancers. After that, Manase and Manase had applied for, and had obtained, ex parte, an order of eviction from the Magistrate's Court.

Meanwhile, the plaintiff had changed hands.

One John Legget had become the majority shareholder. This had followed a series of agreements with Sandra Muir. She, on her part, had by then emigrated to Israel. One Diniwe Chinyani (“Diniwe”) had been staying at the property. She had been Sandra Muir's employee of 10 years and more. With the change of ownership of the plaintiff, Diniwe's continued stay on the property, as an employee of the plaintiff, had been through an arrangement with John Legget. As the Messenger of Court was executing the ex parte order of eviction from the Magistrate's Court Diniwe Chinyani raised alarm. It did not help. She and her family were evicted. After that, the Gurupiras took occupation and moved in.

The plaintiff, through John Legget, filed an urgent chamber application for rescission of judgment. However, the matter was adjudged to be not urgent. The plaintiff then filed an ordinary court application for rescission of judgment. It also sought the reversal of the transfer of the property from the Gurupiras back to the plaintiff. Finally, it also sought the eviction of the Gurupiras. The application was filed under the reference no HC4211/08. The application was said to have been brought in terms of both Order 9 Rule 63 and Order 49 Rule 449.

The Gurupiras, through Manase and Manase, opposed the application.

The matter came before PATEL J…, The learned judge felt that there were serious and irreconcilable disputes of facts. On 24 September 2009 he referred the matter to trial. The application would stand as a summons. The parties would file further pleadings in accordance with the rules of court. That was done.

The trial came before me on 10 February 2014....,.

The plaintiff called seven (7) witnesses. The first was one Paradzayi Matambanadzo, a technician from Net One Cellular, a cellular network provider. His evidence was that without a special device, which Net One Cellular did not have, it was not possible for it to decrypt a short message service (sms) transmitted through its platform by one user to the other. This evidence was led to deal with one of the issues in the matter. That issue was whether or not Sandra Muir had transmitted to the Gurupiras an sms advising them of the Zimbabwean dollar balance due by them to her in respect of the sale of shares. It was in issue whether the purchase price would be paid in Zimbabwean dollars or in foreign currency. These transactions had been entered into before the advent of the multi-currency system adopted by this country in February 2009.

The second witness called by the plaintiff was one Leonard Nhari, a forensic scientist. One of the issues was whether or not Sandra Muir had acknowledged receipt of certain payments made by the Gurupiras. Mr Nhari's evidence was that after he had examined Sandra Muir's purported signatures on the questioned documents it was his conclusion that the signatures were not hers but forgeries or imitations.

The third witness called by the plaintiff was John Legget himself. His evidence was that at the time the Gurupiras had taken transfer of the property, through a court order that they had obtained in default, he had already become the owner of the plaintiff through an initial allotment of 98 of the un-issued shares and a subsequent buy out of the remaining two (2) shares still held by Sandra Muir.

John Legget said that neither he nor the plaintiff had been aware of the court application by the Gurupiras. Until the time of eviction he had never heard of the Gurupiras, let alone of their interest in the property. If their application had been served through the letter box at the property then Diniwe Chinyani ought to have seen it. She stayed permanently on the property. She would bring him all mail that concerned Sandra Muir or the plaintiff. John Legget questioned why Manase and Manase had chosen to serve the court application meant for the plaintiff and Sandra Muir through a letter box when they were, at all relevant times, duly represented by legal practitioners, Thompson Stevenson & Associates. At that time there was already litigation pending between the Gurupiras and Sandra Muir under HC6660/07. That was an application by the Gurupiras to compel Sandra Muir to furnish them with her local Bank account details allegedly to enable them to deposit the balance of the purchase price.

The fourth witness called by the plaintiff was Thompson David Stevenson. He had, at all relevant times, been Sandra Muir's attorney. No application had been served on him. He found it strange that Manase and Manase had not directed that the court application in HC4211/08 be served on him. He was at that time still seized of Sandra Muir's mandate in HC6660/07 in which she was vigorously contesting the Gurupiras' claims. Mr Stevenson also said that nobody had approached him for the original title deed for the property. It was strange that Manase and Manase had resorted to applying for a replacement copy in order to register the transfer of the property to the Gurupiras.

The fifth witness called by the plaintiff was Washington Meda. His firm, Admew Management Services, had provided secretarial services to the plaintiff. It had, among other things, registered the transfer of shares in favour of John Legget and had drawn up the share certificates for him.

The sixth witness for the plaintiff was Diniwe Chinyani. She explained that she checked the mail box everyday. She had seen no application. Although at the particular time the application is alleged to have been served Sandra Muir was now in Mozambique on her way to Israel, her home country, she would remit all her mail or that of the plaintiff to John Legget.

The seventh and last witness for the plaintiff was one Anthony Neil Purkis (“Mr Purkis”). He was a chartered secretary in real estate. His evidence was that it was him that had fixed the sale of shares agreement between Sandra Muir and John Legget. Initially, a Mr Stephen Lennox Attwell had offered to buy Sandra Muir's shareholding in the plaintiff. The agreed price had been around US$220,000. However, Mr Attwell had only paid a deposit of $30,000 and had defaulted afterwards. The sale had been cancelled. Mr Purkis had subsequently closed another deal with John Legget. That agreement had been consummated. Out of the proceeds from John Legget, $30,000 would be kept in trust for Mr Attwell. Mr Purkis said he had not heard of the Gurupiras prior to the agreement with John Legget. It was only much later that he had heard of them from Sandra Muir. He had heard that other than a trifle US$17,000, the Gurupiras had failed to pay the sum required on the plaintiff's shares.

For the defence, only Mr Gurupira gave evidence.

Basically, his evidence was that following an advert in one of the local newspapers they had learnt that the property was on sale. The property was owned by the plaintiff. They had been advised that in order to get the property they had to buy Sandra Muir's shares in the plaintiff. Although they were not really interested in the plaintiff they had signed an agreement for the purchase of those shares. This was the only way to get the property. The agreed purchase price had been ZW$7 billion payable over 6 months in local currency. They had fully paid the purchase price; partly in foreign currency, partly in local currency, and partly in kind.

Towards the end, when the balance owing was ZW$6 billion, Sandra Muir had started to prevaricate and it was becoming difficult to remit payments to her. In November 2008, which was the deadline for payment in terms of the agreement, they had had to apply to court for an order to compel her to disclose details of her local Bank account to enable them to make the last payment. This had been the application under HC6660/07. However, that application had not been proceed with. Sandra Muir had agreed to accept cash. She had received and had signed for it on 13 November 2008. The date on the acknowledgement of receipt had incorrectly been entered as 14 November. He had altered it in long hand to read 13 November.

Mr Gurupira denied that they had breached the agreement of sale. He confirmed that Manase and Manase had applied on their behalf to compel the plaintiff and Sandra Muir to transfer the property to him and Mrs Gurupira. The actual registration of transfer had been in terms of the court order.

The defence closed its case after the evidence of Mr Gurupira.

Having heard all the evidence and having read the voluminous record I was left in no doubt that Manase and Manase had snatched a judgment for the Gurupiras who, through their new attorneys, Sawyer and Mkushi, were improperly clinging onto it. The words of McNALLY JA in Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) have kept playing in my mind. At p402E the learned judge of appeal made the following terse remarks (KORSAH JA and MUCHECHETERE JA agreeing):

“Here there was a mistake. It was clearly a mistake. Zimbank had no possible reason to allow the claim against it…, to go by default. No-one, and in that term I include My Moyo of Chikumbirike and Associates, who acted for Masendeke, could have reasonably have thought otherwise.”

The facts of Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) were far removed from those of the instant case.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the respondent's suit had been preceded by a letter of demand. The letter had been acknowledged and had been said to have been under consideration. In the present case, apart from HC6660/07 which Sandra Muir was defending to the hilt, there was no prior demand for the transfer of the property prior to the application under HC421/08 being filed.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been served and had been acknowledged on behalf of the applicant. It had been served on the accountant of one of the branches of the applicant. The accountant had referred it to the applicant's Head Office where it had reached the office of the General Manager. In the present matter, the summons had been served in a letter box, notwithstanding that Sandra Muir was, at that time, duly represented by Mr Stevenson. The court application in HC4211/07 had actually cited the earlier application under HC6660/07 as a reference matter.

In one of Mr Gurupiras affidavit in opposition to the application for rescission of judgment it was claimed that it was not competent to have served the application on the legal practitioners in the absence of evidence that they had the mandate to represent Sandra Muir in that particular application.

Without doubt, this was a self-serving subterfuge. If no confirmation had been sought how could it be given?

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been inexplicably filed away. The General Manager had not seen it. Default judgment had been sought without any further communication when no appearance to defend had been entered. The judgment was easily rescinded. The respondent's lawyers, who had unreasonably opposed the application for rescission of judgment, just as in this case, narrowly escaped an order of costs de bonis propriis.

In this matter, it is unbelievable that given the surreptitious manner in which Manase and Manase obtained the default judgment and the order of eviction from the Magistrates Court, ex parte, they had the audacity, not only to seek costs, and not only to seek such costs on the higher scale of attorney and client against the plaintiff and John Legget for having applied for rescission of judgment, but also they sought costs de bonis propriis against the plaintiff's attorneys, then, Matimba and Muchengeti.

In this mater, to allow the default judgment to stand would make justice turn on its head. See Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,.; and Pamire & Ors v Dumbutshena NO & Anor 2001 (1) ZLR 123 (H)…,.

What Manase and Manase were doing offends against all notions of justice even though the return of service by the Deputy Sheriff, on the application to compel transfer, stated that the application had been served through the letter box,

I am sceptical that such a huge bundle of documents, which, from its index, was 56 pages long, could be shoved into a standard letter box and fit. The return did not even say that this had been done after a diligent search for someone responsible to receive the papers. Diniwe Chinyani and her children stayed at the property. None of them saw the papers. This lends credence to John Legget's rejection that any such documents had been placed in the letter box. Manase and Manase deliberately avoided service on Sandra Muir's attorneys. It obviously meant that the application was intended not to be served on the plaintiff or on Sandra Muir....,.

The order by MTSHIYA J directed that the property be transferred to the Gurupiras. Clearly, that relief was sought erroneously. Clearly, it was granted erroneously. Clearly, it was granted in the absence of the plaintiff. There had been no proper service of the papers. Therefore, under Rule 449, the order was liable to be set aside.

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066 square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i) Firstly, whether the judgment by MAFUSIRE J gave Muir leave to defend the matter....,.

In dealing with the first point, it is important to determine whether Muir was served with the court application. There is a Return of Service which was rendered by the Deputy Sheriff which reflects that the court application was served at No. 98 Churchill Avenue, Gunhill, Harare. It was served by placing in a letter-box. The service was on behalf of the first respondent, the company and the second respondent - Muir. In terms of clause 9 of the agreement between Muir and the Gurupiras, Muir chose that address as her domicilium citandi.

It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (10) ZLR 226 (SC).

In casu, Muir has not placed any facts before this court, either in the application for rescission on in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect. All that Mr Stevenson could say was that he wondered why the application was not served on his law firm. The answer is to be found in clause 9 of the agreement. Service of the process other than as stipulated in the agreement would have fallen foul of that clause.

Having been served, and after the expiry of 10 days, Muir was therefore barred. This is provided for in Rule 233(2) of the High Court Rules, 1971. She did not approach the court to seek upliftment of the bar.

The fact that the company successfully sought rescission of the judgment does not assist her.

MAFUSIRE J was clear in his order. He gave the company leave to file its opposing papers. He did not relate to the position of Muir as she had not made an application for the order to be set aside. She cannot therefore cling to the judgment made in favour of the company and allege that it paved the way for her to file her papers in opposition. 

MAFUSIRE J could not grant what had not been prayed for.

This is an appeal against a judgment of the High Court handed down on 18 May 2016.

BACKGROUND FACTS

The facts which gave rise to this appeal are somewhat convoluted. Earthmoving & Construction Company (Private) Limited, the second appellant (hereinafter referred to as “the Company”), is a private limited company duly registered as such under the laws of Zimbabwe.

The Company had, at the time of incorporation, an authorized share capital of $32, divided into 32,000 ordinary shares with a nominal value of $0.001 each. Of those shares, only two had been issued. and were, at the time that these events evolved, owned by one Sandra Maureen Muir (“Mrs Muir”). This, in effect, gave 100 percent ownership of the issued shares to Mrs Muir.

In turn, the Company is the registered owner of an immovable piece of land, situate in Harare, identified as a certain piece of land situate in the district of SALISBURY TOWN LANDS measuring 3,066 square metres (also known as 98 Churchill Avenue, Gunhill, Harare). This property is the sole asset of the company.

On 27 May 2007, Mrs Muir concluded a written agreement of sale with Mr and Mrs Gurupira, in terms of which Mrs Muir sold to them the two shares in the Company. In terms of the agreement between the parties, the shares purchased by the Gurupiras' would entitle them to the “exclusive right of use and occupation” of the immovable property owned by the company. The purchase price for the shares was recorded as ZW$7,000,000,000= (seven billion dollars), payable as to a deposit of ZW$3,300,000= which was acknowledged as having been paid at the time of signing of the agreement. The balance of ZW$3,370,000,000= was to be paid within six (6) months from the date of the agreement. The rate at which the outstanding balance was to be paid as well as the frequency thereof were left to the discretion of the parties.

Although the purchase price was quoted in the local currency, it is common cause that the Gurupiras made sporadic payments sometimes in fuel, sometimes in US Dollars, and sometimes in Zimbabwe Dollars.

Up until the end of June 2007, the Gurupiras had made payment on eight occasions, with payment being made as described above. The total amount paid to Mrs Muir under this arrangement is in dispute between the parties.

On 4 August 2007, the Gurupiras addressed a letter to Mrs Muir indicating that they were encountering challenges raising the balance of the purchase price and sought an extension of the time to make payment but did not specify an exact date of expected payment. The last date for payment under the agreement was 25 November 2007.

A dispute ensued on the manner of payment, the currency of payment, and the place at which payment should be effected.

The Gurupiras alleged that at some point Mrs Muir started refusing payment in the local currency and demanded that the balance be paid in foreign currency. Mr Gurupira advised Mrs Muir that he could only pay foreign currency if he was able to access it and that he was not always in a position to obtain it. On 12 November 2007, Mr Gurupira instructed his legal practitioners to write to Mrs Muir to provide an account into which payment of the outstanding balance of the purchase price could be deposited. There was no response.

On 23 November 2007, the Gurupiras filed an application in the High Court seeking an order for Mrs Muir to provide a Bank account into which payment of the outstanding balance of the purchase price could be paid. In addition, they sought an order for specific performance by Mrs Muir for the transfer of shares in the company to themselves against a tender of payment of the balance of the purchase price.

This application never saw the light of day having been withdrawn before it could be set down.

The record shows that on 6 September 2007, the Gurupiras made a payment through wire transfer directly to Israel where Mrs Muir was now residing. Also on record is a cheque payment, in February 2008, into a Standard Chartered Bank account bearing Mrs Muir's name.

It is common cause that during the period following the filing of the above mentioned application Mrs Muir concluded a series of agreements with the first appellant, (“Leggett”).

On 11 December 2007, Mrs Muir and Leggett concluded an agreement in terms of which the latter would subscribe to 98 ordinary shares in the company. Subsequently, on 27 May 2008, Leggett concluded an agreement with Mrs Muir in terms of which the former purchased the entire shareholding in the company from Mrs Muir. Just as in the case of the Gurupiras, the purchase entitled him to “exclusive use and occupation” of the immovable property which is the subject matter of this appeal.

Subsequent to the conclusion of the first agreement, the Gurupiras became aware that Mrs Muir had placed advertisements for the sale of the immovable property. As a consequence, on 7 March 2008, under Case No. HC1393/08, the Gurupiras filed an application with the High Court in which they sought, variously, as against the company, interlocutory relief prohibiting the transfer of the immovable property, and, as against Mrs Muir, an order for specific performance in respect of the immovable property. The Registrar of Deeds, the Sheriff for Zimbabwe and his Deputy were also cited as third, fourth and fifth respondents respectively.

On 21 May 2018, the High Court granted an order in favour of the Gurupiras, in default of appearance from Mrs Muir and the company, as claimed in the draft order.

On 16 June 2008 the property was transferred to the Gurupiras under Deed of Transfer No. 4778/08. They proceeded to evict the occupant, one Diniwe Chinyani. She informed Leggett.

An urgent application for rescission of the default judgment was filed on behalf of the company. It was adjudged not urgent and was finally set down for hearing as an opposed matter. However, the matter was referred to trial on the premise that there existed material disputes of fact.

Pending the determination of the application for rescission, the company filed a counter application in which it sought an order for the eviction of the Gurupiras on the premise that it was the owner of the property in question.

On 19 March 2014, after a full trial, the High Court gave an order in terms of which the default judgment was set aside with leave being granted for “the respondent” in the main application to file opposing papers.

The main application was heard by the High Court on 21 May and 18 June 2015. By this time, pursuant to an application by the Gurupiras, Leggett had been joined as sixth respondent by order of the court. An issue arose as to whether Mrs Muir was before the court. The Gurupiras argued that she had not applied for the rescission of the default judgment in the sense that only the company had sought such rescission. It also transpired that Mr Stevenson, who purported to represent her on the day of the hearing, had not filed papers on her behalf nor did he appear to have the mandate to represent her.

On 18 May 2016 the High Court handed down its judgment and issued an order:

1. Declaring that the Gurupiras to be the lawful shareholders of the entire shareholding in the first respondent (the company) and that any purported transfer or appointment of directors by the sixth respondent (Leggett) be deemed to be null and void. (sic)

2. Directing the second respondent to sign all necessary documents to effect transfer of the above-mentioned shares. (sic)

3. That should the second respondent fail to sign the necessary documents to effect transfer of the shares, the Sheriff of the High Court be directed to sign all necessary documents to effect transfer of the shares to the Gurupiras.

4. The first and sixth respondents shall bear the costs of this application on an attorney and client scale jointly and severally each causing the other to be absolved. (sic)

5. Dismissing the sixth respondent's counter-application.

It is this decision that Leggett has brought on appeal...,.

ISSUES FOR DETERMINATION ON APPEAL

Although the Gurupiras obtained an order for specific performance against Mrs Muir, which is the main issue in contention in this appeal, the starting point revolves around the issue of rescission of the default judgment of 21 May 2018.

1. In this appeal, the court has to determine the effect of the order for rescission given by MAFUSIRE J.

2. Consequent thereto is the issue as to whether Mrs Muir, following upon the rescission of the default judgment, was before the court a quo for the determination of the main application.

3. Additionally, there should be a determination as to whether the court a quo was correct in finding that the Gurupiras were entitled to specific performance. For the proper determination of this aspect on the merits, it stands to reason that Leggett and the company could only appeal if Mrs Muir was a party to the proceedings. Her absence militates against their contentions in that regard.

4. Lastly, the court had to decide whether Leggett was entitled to relief in respect of the shareholding transferred to him by Mrs Muir.

Given the issues raised in the rather extensive grounds, I have decided to deal with each ground of appeal separately ad seriatim.

AD GROUNDS 1 and 2 - WHETHER THE COURT A QUO ERRED IN FINDING THAT MUIR HAD BEEN PROPERLY SERVED, THAT, AS A CONSEQUENCE, MUIR WAS NOT BEFORE THE COURT AND HAD FAILED TO OPPOSE THE APPLICATION FOR SPECIFIC PERFORMANCE

These two grounds are interlinked as they are concerned with the same issue.

The application for the rescission of the default judgment was the sine qua non for any party seeking to oppose relief being claimed by the Gurupiras to have the leave of court to appear in opposition to such application.

As regards this issue, it was contended that the High Court had said that the issue was whether or not Mrs Muir was before the court. It was contended that due to the findings of fact made by MAFUSIRE J the court had to find that the judgment had been rescinded, thus affording her a right to oppose the relief sought by the Gurupiras.

Per contra, counsel for the respondents submitted that Mrs Muir had not appealed against the finding that she was not before the High Court. As a consequence, there was no opposition filed by her to the order sought by the Gurupiras.

The court a quo made the following critical findings;

It found that Mrs Muir had been properly served with the application. Further to that, it found that due to her failure to have the judgment granted in default rescinded as against her, she was not before the court.

The application for rescission was, on the order of the High Court, converted to a trial given the seeming myriad material disputes of fact on the papers. The witnesses called included Leggett, one Diniwe Chinyanga, L. T Nhari, a forensic documents examiner, and Thomas David Stevenson.

The last witness was appearing in his capacity as the legal practitioner of record for Mrs Muir.

Mrs Muir, however, did not launch an application for the rescission of the order made against her nor was she one of the witnesses who gave evidence before the High Court in support of the application for rescission of the default judgment.

Counsel for the appellants, Leggett and the company, submitted that the court a quo should have had regard to the evidence given to the court during the trial wherein the rescission of the default judgment was being considered.

It is pertinent to note that when the matter was heard by MAFUSIRE J, on 10 and 11 February 2014, there was only one party referred to as the plaintiff - and that was the company. Mrs Muir was cited as the third respondent in that matter. This is because the company had made the application for rescission. It cited Mrs Muir as a respondent. She did not file any papers. The judgment reflects that there was no appearance by Mrs Muir. The learned judge found that there had been no proper service of the application to compel specific performance as against Mrs Muir. He found, as a consequence, that there had not been proper service on Mrs Muir.

The critical question that begs an answer is what was before his Lordship. In other words, was Mrs Muir before his Lordship in an application for the setting aside of a judgment granted in default?

Such an application is governed by Rule 63 of the Rules of the High Court, 1971. Rule 63 is couched as follows:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of sub-rule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action on such terms as to costs and otherwise as the court considers just.

(3) Unless an applicant for the setting aside of a judgment in terms of this Rule proves to the contrary, he shall be presumed to have had knowledge of the judgment within two days after the date thereof.”

In my view, it was incumbent upon Mrs Muir, in the pursuit of the protection of her rights under the agreement with the Gurupiras, to apply, in terms of Rule 63, to have the judgment against her rescinded or set aside.

Even the order issued by MAFUSIRE J is of no assistance to her cause. It orders that “the plaintiff shall file its notice of opposition within ten days of the date of the order” - and it is common cause that the plaintiff in those proceedings was the company.

Notwithstanding his remarks on service, there is no order granting leave to Mrs Muir to file opposing papers. This is due to her absence from the proceedings from the beginning.

The court a quo found that, despite the presence of Mr Stevenson, who purported to act on her behalf, Mrs Muir was not before it. The court said:

“It is trite that where the Notice of Opposition or affidavit is to be signed by a person other than the respondent, that person must show that he is authorised to do so. The authors Herbestein & Van Winsen - The Civil Practice of the High Courts of South Africa, 5th Ed, p437 put it this way;

'Where an application is made by an agent on behalf of a principal, an averment of the agent's authority is essential, unless it appears from the affidavits filed in the application that the principal is aware of and ratified the proceedings. A statement that the applicant is acting in the capacity of agent for the principal in question is a sufficient allegation of authority to make the application.'”

In casu, Mr Stevenson filed an affidavit. It is not clear whether it is an opposing or supporting affidavit. In it he avers that he renounced agency after being asked by Mrs Muir to hand over her files to some other legal practitioners. In paragraph 7 he asserts;

“I have been prevailed upon by interested parties to the instant matter to act on behalf of the second respondent in the absence…,.

It is a telling assertion.

He filed the 'affidavit' without a mandate from Mrs Muir but did so due to some pressure from 'interested parties.'”

In the light of these facts, as emanating from the record, the finding that Mrs Muir was not before the court a quo is beyond impeachment.

Counsel for the appellants proceeded to argue that the finding by MAFUSIRE J, that there had in fact not been proper service of the application, was pertinent in this regard.

He contended that it could not be argued that the company and Mrs Muir could be said to have been in default, and, therefore, no order could be made against either of them.

These comments are made against the finding by the court a quo that Mrs Muir did not file an application for rescission, which finding has not been appealed against. The court stated:

“In casu, Muir has not placed any facts before this Court, either in the application for rescission or in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect.”

According to the learned authors, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts of South Africa, 5ed…, Rule 31(2)(b) of the Uniform Rules of the High Courts of South Africa provides that a defendant may, within twenty days after gaining knowledge of a default judgment granted against him, apply to court upon notice to the plaintiff to set aside the judgment.

I must say that I much prefer the wording in that rule to the one in our Rule 63.

The former is clear and admits of no doubt as to who should make the application. It is the defendant.

On p715, the learned authors state the following:

“An applicant for the rescission of a default judgment must show good cause and prove that at no time did he renounce his defence, and has a serious intention of proceeding with the case. In order to show good cause, an applicant must give a reasonable explanation for the default, the application must be made bona fide and must show that a bona fide defence to the plaintiff's claim (exists).”

The contentions by counsel for the appellants, that Mrs Muir was not in default and was so found by MAFUSIRE J must, therefore, be considered in the light of the provisions of Rule 63 above.

The judgment of the learned judge in the court a quo is clear. As a consequence, when MAFUSIRE J found that the plaintiff had not been in wilful default such finding could only have related to the company. Mrs Muir never made an application for the rescission of the default judgment entered against her, and, as a consequence of such failure, the judgment, as it related to an order aimed at her personally, was not set aside. As a consequence, the setting aside of the order did not mean that she had purged her default. She had not sought an order permitting her to oppose the application filed against her.

According to the agreement of sale, the domicilium citandi et executandi was 98 Churchill Avenue. The return of service by the Deputy Sheriff stated that service had been effected at the domicilium citandi et executandi. The court a quo found that service had been effected because that is the address for service chosen by Mrs Muir in the agreement. The court stated:

“It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (1) ZLR 226 (SC).”

It is on record that she left Zimbabwe in September 2008. The documents were served in March 2008. She needed to explain why the return of service was not correct and why she had not seen the documents. There was no explanation from her. The return must therefore be accepted as correct.

In the absence of an application for rescission challenging such manner of service, a court hearing an application for rescission of a default judgment does not have the jurisdictional base to proceed and make conclusions touching on that process. It can only do so once good and sufficient cause has been established for the setting aside of the judgment. In this case there was none as related to Mrs Muir.

In the final analysis, the finding by the court a quo that the judgment against Mrs Muir was not set aside is unassailable. Grounds 1 and 2 of the appeal accordingly are without merit and must be dismissed.

The applicant was employed by the first respondent. As part of his employment benefits, the applicant was allocated House Number 36 School Avenue, Noelvale, Zvishavane. Between 11 and 20 March 2011 the applicant deserted from work and was dismissed, after due process, on 27 March 2011. The applicant did not appeal against the dismissal which still stands to date. The first respondent considered the contract of employment effectively terminated thereby stripping the applicant of all rights that had accrued to him as a consequence of the employment relationship.

The applicant remained in occupation of the first respondent's property prompting the latter to issue summons for eviction on 23 August 2016. The applicant entered appearance to defend and filed his plea on 28 September 2016. On or about 31 August 2017, the first respondent filed an application for summary judgment under case number HC1101/17. A default judgment was subsequently granted against the applicant.

The first respondent obtained a warrant of ejectment and served it on the applicant's sister on 12 January 2018. The applicant then filed this application for stay of execution arguing that neither his legal practitioners nor his corresponding lawyers received the application for summary judgment. The relief he seeks is as follows;

“That pending the determination of this matter, the applicant is granted the following relief:

1. The warrant of ejectment issued on 12^th day of January 2018 be and is hereby stayed pending the determination and finalization of the application for rescission of summary judgment which will be filed within 5 days.

2. In the event that the applicant and all those claiming right through him have been evicted be restored possession of House Number 36 School Avenue, Noevale, Zvishavane pending the determination and finalization of the application for rescission of summary judgment.”

The applicant contended that the matter is urgent because he was facing ejectment in a matter of hours.

He claimed that the balance of convenience favours the granting of this application in that if the application for rescission is not granted, the first respondent will still be entitled to reclaim its house while if he is evicted before the determination of his application for rescission he will not be able to have possession of the house, because the first respondent intends to allocate it to a new tenant. Further, the applicant submitted that he will suffer irreparable harm if this application is not granted in that the first respondent owed him US$23,000= being salary arrears, and, if execution is not stayed, he will not have any recourse to the law because the first respondent is “immune to lawsuits” by virtue of the provisions of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:24].

The applicant also argued that he will suffer heavy prejudice if the warrant for ejectment is not stayed in that he has no alternative accommodation for his family that includes children who are attending school in Zvishavane.

He said he was surprised by the warrant of eviction because he had not been served with the application for summary judgment.

While admitting that according to the certificate of service filed by the first respondent, the application for summary judgment was served on one Edwin Mafa in the employ of his corresponding legal practitioners, he insisted that his lawyers told him that Edwin Mafa denied being served with the application. In this regard, he filed a supporting affidavit from his legal representative confirming that Edwin Mafa denied ever receiving the application for summary judgment. Surprisingly, the applicant omitted to file an affidavit from Edwin Mafa himself.

During argument, it was conceded that the applicant lost his right to continue to enjoy benefits after the termination of the contract of employment. It was nevertheless argued that his defence in the application for rescission would be that he is owed salary arrears by the first respondent who was served with this claim. He lamented the difficulty of suing the first respondent due to its status.

The first respondent opposed the application on the following grounds;

“(a) There is no accompanying urgency as to warrant the relief sought;

(b) There is no fear of an imminent harm and or fear of an injustice being done should the relief sought be denied.

(c) The applicant has not established that he has a clear or prima facie right that would entitle him to get the relief of stay of execution against an order for his eviction from a company house that he is occupying following termination of his employment contract on March 2011.

(d) Applicant has not shown that the balance of convenience is in favour of granting the remedy.”

As indicated above, the applicant has approached this court for a stay of execution pending the filing and determination for rescission of the default judgment granted under HC1101/17.

The principles that a court must have regard to in an application for stay of execution are akin to those considered when deciding whether or not to grant leave to execute pending appeal – see Nzara v Tsanyau and Others 2014 (1) ZLR 674 (H); Old Mutual Life Assurance Company (Pvt) Ltd v Makgatho HH39-07. They are:

“1. An appellant has an absolute right to appeal and test the correctness of the decision of the lower court before he or she is called upon to satisfy the judgment appealed against.

2. Execution of the judgment of the lower court, before the determination of the appeal, will regate the absolute right that the appellant has and is generally not permissible.

3. Where, however, the appellant brings the appeal with no bona fide intention of testing the correctness of the decision of the lower court, but is motivated by a desire to either buy time or harass the successful party, the court, in its discretion, may allow the successful party to execute the judgment notwithstanding the absolute right to appeal resting in the appellant.

4. In exercising its discretion, the court has regard to the considerations suggested by CORBETT JA in South Cape Corporations (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545.

5. Where the judgment sounds in money and the successful party offers security de restituendo and the appellant has no prospects of success on appeal, the court may exercise its discretion against the appellant's absolute right to appeal.

6. An application for leave to execute pending appeal cannot be determined solely on the basis that the appellant has no prospects of success on appeal, especially where the whole object of the appeal is defeated if execution were to proceed. See Woodnov Edwards and Another 1966 RLR 335.”

What must be interrogated in this matter are the applicant's bona fides in bringing an application for rescission of a default judgment.

In order to show good and sufficient cause under Rule 63 of the High Court Rules 1971, for rescission, an applicant has to give a reasonable explanation for the default, the bona fides of the application for rescission of judgment and the prospects of success on the merits. These factors are considered cumulatively and not individually. See Earth Moving and Construction Company (Pvt) Ltd v Gurupira and Others 2014 (1) ZLR 304 (H); Roland and Another v McDonnell 1986 (2) ZLR 216 (S); Stockil v Griffs 1992 (1) ZLR 172 (S); Sibanda v Ntini 2002 (1) ZLR 264 (S).

Let me deal first with the reasonableness of the applicant's explanation for the default.

It is noteworthy that he has given two conflicting explanations;

(a) Firstly, he contended that “as such neither my legal practitioner nor any corresponding lawyers received the application for summary judgment.” See paragraph 17 of the applicant's founding affidavit.

(b) Secondly, it was argued that Edwin Mafu was served with the application, but, instead of sending it to the applicant's lawyers, he simply sat on it.

This was despite the applicant's lawyers having been furnished with a copy of the certificate of service with a stamp from Sansole and Senda, the corresponding legal practitioners showing that the application for summary judgment had been served on one Edwin Mafu on 20 April 2017. The applicant did not bother to file Edwin Mafu's affidavit with this application. Also, the applicant did not bother to peruse the file or contact the Assistant Registrar between August 2017 and January 2018. In the absence of a supporting affidavit from Edwin Mafu, this court is left to speculate on what happened between Mutendi, Mudisi and Partners and Sansole and Senda.

In the result, the explanation remains somewhat murky and unreasonable....,.

I associate myself with the comments by DUMBUTHSENA J…, in S v Mcnal 1986 (2) ZLR 280 where he said, while considering whether a party should be punished for the negligence of his legal practitioners;

“In my view, clients should, in such cases, suffer for the negligence of their legal practitioners. I share the view expressed by STEYN CJ in Salogee and Another v Minister of Community DVT supra at 141 C- E when he said;

'There is a limit beyond which a litigant cannot escape the result of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this court. In fact, this court has lately been burdened with an undue and increasing number of applications for condonation on which the failure to comply with the Rules of this court was due to neglect on the part of the legal practitioners. The attorney, after all, is the representative whom the litigant has chosen for himself and there is little or no reason why, in return for condonation of a failure to comply with a Rule of court, the litigant should be absolved from the normal consequences of such a relationship no matter what the circumstances of the failure are.'”

In the present case, the applicant's legal practitioners negligently failed to comply with a peremptory provision of the Rules. In my view, it is not an acceptable explanation for a legal practitioner to come to court, nine months after the dies induciae has elapsed, and simply say that they did not see the court application for summary judgment contrary to hard evidence showing service and receipt of such an application. Such an explanation is an insult to the intelligence of the court, making it more difficult for this court to be satisfied of the applicant's good faith.