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, 5th
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 5th 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.
3. The costs of this application shall be costs
in the main application.
