The plaintiff has, apart from the fourth (Emmanuel Zvarevadza) and fifth (Darikai Butsa) defendants, been involved in legal combat with all the other parties in HC2765/05, Misheck Zvarevadza (first defendant), Dadirai Moses (second defendant), Shadreck Zvarevadza (third defendant), Cobra Security (Pvt) Ltd (sixth defendant), Controller of Private Investigations and Security Guards (seventh defendant), Ministry of Home Affairs (eighth defendant), and, Registrar of Companies (ninth defendant).

In HC4096/96 he brought an application for his reinstatement as a director in the sixth defendant against the sixth defendant. He was reinstated. The sixth defendant got its act together and dismissed him as a director on 24 September 1996. He brought another application seeking reinstatement in HC4157/97. It was contested. BARTLETT J dismissed that application with costs on 17 September 1997.

The founding affidavit that launched the present matter is a carbon copy of the application he filed in HC2765/05 that he withdrew in June 2006.

The present matter was set down on the opposed roll for hearing on 25 January 2011 where PATEL J directed as follows:

1. There are disputes of fact which cannot be resolved on the papers.

2. Accordingly, it is ordered that the matter be referred to trial for determination on the basis of viva voce evidence as follows:

(a) The founding papers shall stand as summons commencing action and the opposing papers as notice of appearance to defend by first to sixth defendants;

(b) The applicant/plaintiff is directed to file his declaration on or before 8 February 2011 and the matter shall proceed thereafter in accordance with the Rules of Court.

(c) The costs of this application to date shall be costs in the cause.

The plaintiff merely turned the founding affidavit into a declaration and substituted all reference to the applicant and respondent by the plaintiff and defendant.

The plaintiff's declaration aptly fits into the description made by MAKARAU JP…, in Mwanyisa v Jumbo & Ors HH03-10…, cited with approval by MAWADZE J in Morris v Morris & Anor HH71-11…, as “a dog's breakfast.”

The six defendants' requested for further particulars; some of which were supplied.

On 1 April 2011, the defendants raised special pleas of res judicata and prescription and pleaded over the merits. The matter was referred to trial at the pre-trial conference held on 14 June 2011. The six issues referred to trial were:

1. Whether or not the plaintiff's claim is prescribed;

2. Whether or not the plaintiff's claim was determined by a competent court and is therefore res judicata;

3. If the matter is res judicata, whether the plaintiff is entitled to the relief sought;

4. Whether the second to fifth defendants are legitimate directors of the sixth defendant;

5. Whether the plaintiff is entitled to shares in the sixth defendant, and, if so, how many shares or what fraction or proportion of shares?;

6. Whether CR14 forms filed with the ninth defendant, dated 7 January 2003 and 14 September 2007, signed by the second defendant and fifth defendant respectively, should be nullified.

Only the first three issues arise for determination from the special pleas raised. I deal with the special pleas in the manner that they were argued.

The defendant filed a special plea on 20 October 2008. The following facts constitute the basis of the special plea.

1. The respondent (plaintiff in the main matter, hereinafter called “plaintiff”) issued summons under case number HC190/08 claiming damages arising from a road traffic accident on 14 January 2008.

2. Pleadings were exchanged between the parties leading to a convening of the pre-trial conference before the judge in chambers in terms of Rule 182 of the High Court Rules, 1971 (“the Rules”).

3. The pre-trial conference was set down for 22 April 2008 for the parties to attend with a view to either settle the matter or defining issues to be referred for trial.

4. The plaintiff's legal practitioners or his representatives failed to turn up.

5. The defendant made an oral application for the dismissal of the plaintiff's claim to the judge in chambers and obtained an order dismissing the claim with costs on the same day.

6. Thereafter, the plaintiff issued fresh summons based on the same cause of action claiming the same relief from the same party under case number HC3349/08. This is the present action.

7. The matter has been set down for trial.

The defendant took exception to a fresh process issued by the plaintiff. He argues that the plaintiff ought to have applied for rescission of the default judgment in terms of either Rule 63 or Rule 449 of the Rules. Without having obtained rescission of the judgment, so the defendant contends, the plaintiff's claim stands dismissed with costs. He contends that the plaintiff is barred from instituting fresh action.

As I understood it, counsel for the defendant is this; since the claim was dismissed in terms of Rule 182(11) the plaintiff cannot, without first obtaining rescission of that judgment, issue fresh process as the dismissal still stands. The only course of action open to a party eager to pursue an action so dismissed is to first to seek rescission in terms of Rule 63 of the Rules.

The plaintiff disputes this contention.

Counsel for the plaintiff figured that Rule 63 was permissive. It gave the plaintiff against whom default judgment was entered two options. The first option was to seek rescission of that default judgment, and, after obtaining it, proceed on the same papers. The second option was to literally abandon those papers and issue fresh ones. So long as the order for costs has been discharged, according to this argument, it is open to the plaintiff to commence fresh action since the dismissal of the action at pre-trial conference stage is akin to absolution from the instance. This interpretation, argued counsel for the plaintiff, accords with the tenor of Rules 59, 59A, 60, 61, 62 and 63.

It seems to me that the defendant's argument should meet with failure for two reasons.

(a) First, the defendant expressly abandoned the special plea of res judicata notwithstanding the fact that the defendant had expressly couched that special plea which he had filed with this court on 20 October 2008 as the basis of the special plea. If this was meant to be just a preliminary objection (which it sounds more like), then the defendant ought to have sought the dismissal of the plaintiff's case as he did, but a stay of proceedings till the plaintiff had paid the costs in terms of the order in HC190/08. See Western Cape Housing Development Board & Another v Parker & Another 2005 (1) SA 462.

(b) Second, the Rules grant the power to the court to enter judgment or make such order as it may think fit depending on the circumstances without hearing evidence. Rules 58, 59, 59A, 60, 61 and 62. It is said in a judgment obtained in this manner amounts to a default judgment.

When the plaintiff had failed to appear in person, or through counsel, for trial or in obedience to the directive, generally an order for dismissal of his claim is entered. Such an order dismissing the plaintiff's claim is, at law, not the judgment for the defendant.

In Munemo v Muswera 1987 (1) ZLR 20 (SC)…, McNALLY JA put the matter this way;

“…,. The judgment relied upon was not the judgment for the plaintiff, nor was it a judgment for the defendant…,. However, the judgment in 1979 was a judgment which read:

'The plaintiff's claim for ejectment is dismissed with costs.'

It is well established that such a judgment is in effect one of absolution from the instance. See Hassan v Billiat SC132-86 (not reported); Bulford v Bob White Service Station (Pvt) Ltd 1972 (2) RLR 224 (AD); Makayiseni v Musarurgwa 1947 SR 160 at 162.

The matter is succinctly put by Hoffman & Zeffertt op cit at p263 in the following words;

'The decree of absolution from the instance (or an order dismissing the plaintiff's claim) is specifically intended to the man the plaintiff to bring another action if he can find a better evidence to support his claim. Absolution can never found a cause for action estoppels.”

The dismissal of the plaintiff's claim, where it is obtained by default, is not as drastic an order as it may sound. In my view, this accords with the rationale of the Rules which is to achieve justice only after each party has had his or her day in court. To hold otherwise would, in my view, subject the procedure to mere technicality without achieving the desired end, which is to do justice between the parties.

It is instructive that in terms of Rule 61 the defendant may obtain an order dismissing the plaintiffs' claims where the plaintiff has been barred from declaring or making a claim. In terms of Rule 62, the defendant may also obtain an order absolving him where the plaintiff makes default of appearance. Both rules use the permissive “may” not the peremptory “shall” to make provision for the options open to the party who has complied with the rules. Similarly, Rule 63 also uses the permissive “may” to confer discretionary power to the court before which the matter is placed. The court is not obliged to give judgment for either party hence in practice the matter is generally dismissed or postponed depending on the force of the application made by the party appearing before it.

Thus, where an order such as the one granted on 22 April 2008, is in issue, it can hardly be said that such an order determined the matter finally. In my view, the plaintiff correctly opted to issue fresh summons, as it was entitled to do, rather than seek rescission of the judgment granted in default.

In the premises, the preliminary issue raised by the defendant is dismissed.

On 23 June 2008, the plaintiff issued summons out of this court against the defendant. After the plaintiff furnished it with the further particulars it requested, the defendant, inter alia, excepted to the summons and declaration on 3 October 2008. The basis of the exception was that the defendant had ceased to exist, both at the time the cause of action arose and at the institution of proceedings.

In his replication filed by his erstwhile legal practitioners, Scanlen & Holderness, the plaintiff averred that the exception was frivolous and ill-conceived, and persisted with his assertion that the defendant was in existence.

It was directed at the pre-trial conference held on 29 May 2009 that the parties were to file heads of argument on the exception which was to be argued and disposed of at the commencement of trial.

On 24 July 2009, the excipient filed heads of argument and the plaintiff did so on 12 August 2009. It is noteworthy that Messrs Scanlen and Holderness renounced agency on 17 December 2009; and Messrs Muringi Kamdefwere, who took over from them, also renounced agency on 24 June 2010. In argument before me, the plaintiff relied on the heads of argument filed on his behalf by his initial legal practitioners.

The issue raised by the exception is whether or not at the time the cause of action arose, and at the time that summons were issued, the defendant was in existence.

Counsel for the excipient contended that the defendant ceased to exist on 23 March 2000.

The plaintiff, on the other hand, contended that the excipient still exists.

The cause of action arose on 2 September 2007 when the plaintiff was a fare–paying passenger in an Air Zimbabwe aircraft enroute from Singapore to Harare.

I shall now proceed to deal with each of the said reasons given by the defendant for rejecting the plaintiff's claim.

1. Plaintiff's summons was invalid as it had not been signed by a Manager or Accountant of the plaintiff in breach of the facility letter

If the above challenge, which, I must say, was never preceded by an exception, is correct, then there are no proceedings before the court. I shall therefore start by examining that challenge from the defendant. The challenge is based on paragraph 14.1 of the facility letter which provides as follows -

“In the event of the Bank taking any proceedings to recover any amount due to it, the amount due to it shall be determined and proved by a certificate signed by the Manager, Accountant Manager or Accountant of this branch of the Bank and such certificate shall be prima facie proof of the amount due by the Borrower and the onus shall be on the Borrower to disprove the accuracy of such certificate.”

I do not believe that the above is a pre-requisite for the issuance of a summons. The certificate referred to is one of the forms through which the plaintiff can support/prove its case. The plaintiff can prove its case through other forms of evidence but the production of such a certificate would strengthen its case (i.e. prima facie proof). It need not, in my view, be part of the summons. I therefore agree with the plaintiff that no issue arises since that certificate is a matter for the plaintiff.

This is an application for a special plea and exception by the defendant.

At the trial, the defendant moved that the court deals with his special plea which he had filed in terms of Order 21 Rule 137(1)(a) of the Rules of Court in the hope that the matter would be disposed at that stage if the plea in bar succeeded….,.

On or about August 2006, the parties entered into an oral agreement in terms of which the plaintiff sold to the defendant a certain dwelling house commonly known as Number 56 Burnside Road, Bulawayo for the sum of US$60,000= payable as follows:

(a) The sum of US$30,000= to be paid in the Zimbabwean Dollar equivalent; and

(b) The balance of US$30,000= to be paid in the equivalent of the South African Rand.

It was an implied term that the defendant would pay the purchase price within a reasonable time from the date of sale. The defendant paid to the plaintiff the following sums of money i.e. Z$17,500,000= and ZAR6,500= as follows:

(a) October 2006 - Z$2,000,000= [equivalent US$2,000= at time].

(b) April 2007 -  Z$5,500,000= [equivalent US$220= at time].

(c) October 2007 – Z$10,000,000= [equivalent US$50= at time].

(d) July 2007 - ZAR4,000=.

(e) September 2007 – ZAR500=.

(f) November 2007 – ZAR500=.

(g) January 2008 – ZAR500=.

(h) March 2008 – ZAR500=.

(i) May 2008 - ZAR500=.

No further payments were made by the defendant since May 2008 despite demand. In June 2008, the plaintiff cancelled the agreement and informed the defendant and demanded that the defendant vacates the house. The defendant did not vacate resulting in the institution of summons by the plaintiff seeking-

(a) An order declaring the Agreement of Sale cancelled or alternatively an order declaring the agreement to be invalid, void ab initio;

(b) The ejectment of the defendant and all those claiming under him;

(c) Damages in the sum of ZAR4,000= per month calculated from 1 September 2006 to date of judgment together with 10% interest; and

(d) Costs of suit.

This is an exception by the defendant to the plaintiff's particulars of claim on the ground that they disclose no cause of action in law.

For the purpose of determining the exception, its basis is the following:

“Submissions in brief

It is submitted that the parties entered into an instalment sale of land, and that if the defendant breached the agreement, as alleged by the plaintiff, by not paying the balance of the purchase price within a reasonable time, then the plaintiff failed to comply with the Contractual Penalties Act, therefore has no actionable right against the defendant.

Submissions in detail

1. Section 7 of the Contractual Penalties Act [Chapter 8:04] states as follows…,.

2. In terms of paragraph 3 of the plaintiff's declaration, there is no dispute that an oral agreement for the sale of land was entered into…,.

3. From paragraph 5 of the plaintiff's declaration it is clear that payment towards the purchase price was made in more than three instalments.

4. Section 8, sub-section (1) of the Contractual Penalties Act, aforementioned, reads as follows…,.

5. ….,.

6. It is clear that in the present matter, the plaintiff did not give the requisite notice in terms of section 8 of the Contractual Penalties Act, and, as such, the plaintiff's purported cancellation of the agreement is null and void, and of no force or effect.

7. See also the case of Preston vs Charuma Blasting & Earthmoving Services (Pvt) Ltd and Anor 1999 (2) ZLR 201 (S) especially at page 203 where SANDURA JA stated as follows:

“In the circumstances, before terminating the sale agreement the appellant was obliged to comply with the provisions of subsections (1) and (2) of section 8 of the Act. In terms of those provisions, he was obliged to call upon the respondent to pay the instalment within thirty days, and would have been entitled to terminate the agreement only if the respondent failed to pay the instalment within that period.”

8. For the foregoing reasons, it is submitted that the plaintiff's action is without merit and it is prayed that it be dismissed with costs and judgment entered in favour of the defendant, declaring the plaintiff's purported cancellation of the agreement between the parties to be invalid and unactionable.”

If there was no alternative claim which seeks to have the agreement declared null and void, I would have upheld the exception on the above-mentioned grounds stated by the excipient i.e. failure to comply with the provisions of section 8(1) of the Contractual Penalties Act [Chapter 8:04] and section 8(2) of the Contractual Penalties Act [Chapter 8:04]).

In casu, the alternative claim gives the matter an entirely different complexion. In the alternative claim, the plaintiff, in his declaration, alleges that the alleged Agreement of Sale does not exist. He pleads as follows -

“The parties' purported agreement of sale is invalid, void ab initio, and therefore of non-effect….,.”

For the Contractual Penalties Act [Chapter 8:04] to be said to apply, there must be proved, at the first instance, that there is a valid agreement. The plaintiff, in its declaration, puts to issue the very existence of such an agreement.

When service was effected on the second defendant, on 23 July 2010, prescription had not begun to run. The service was accordingly valid.

But was he vicariously liable for the accident caused by the negligence of the first defendant?

The second defendant was employed by Martin Senda. He was an employee just like the first defendant - albeit at higher level of manager. One employee cannot be vicariously liable for the delicts of another employee. It is only an employer who is vicariously liable for the delicts of his employee committed during the scope of his employment.

The second defendant was, in the result, wrongly cited.

The exception and special plea in bar succeeds.

It is accordingly ordered that the applicant's claim be and is hereby dismissed with costs on the ordinary scale.

In response to the summons and declaration, the defendants filed a special plea and an exception. The special plea was based on the citation of the first defendant, The Standard, which is the name given to the publication in which the article complained of was published. 

Counsel for the excepient urged that in the event that the exception is upheld the court must strike down the declaration and dismiss the plaintiff's claim on the ground that the case turns upon an interpretation of the article complained of.

The plaintiff did not ask for leave to amend his declaration in the event of the exception being upheld.

The correct procedure where an exception is upheld is not to dismiss the plaintiff's claim as prayed by the defendants, but to grant the plaintiff leave to amend his pleadings if he is so advised. See RM Insurance Co (Pvt) Ltd v GCM (Pvt) Ltd 1993 (2) ZLR 407(S)….,; Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H)….,; Taylor & Anor v Chavunduka & Ors 1995 (2) ZLR 22 (H)…,.

1.….,.

The respondent also submitted that the issue of res judicata had been improperly raised by the applicant as it was only raised in the answering affidavit.

Prescription goes to the root of a claim or defence.

In order to bring an exception within Rule 223(3) for set down on the opposed roll, the matter must be opposed. Rule 223(2) provides:

“Set down of other matters on notice

(1) …,.

(2) Subject to subrr (3), (4), (5) and r238, exceptions, applications to strike out and other applications which are opposed shall be set down for hearing –

(a) …,.”…,.

The Rule uses the words “which are opposed”. This can only be known to the Registrar and the other party if intimation of such opposition has been given. These words also suggest that matters which are not opposed are set down in terms of a different Rule altogether. My view is that the drafters of the Rules could not have intended that every exception be set down in terms of Rule 138 as an opposed matter. This would lead to an absurdity which would adversely interfere with the administration of justice. The Rules have provided for an avenue or mechanism to speedily allow matters that are unopposed to be dealt with. Such matters can be set down in terms of Rule 223(1) on unopposed applications.

The respondents were therefore correct in setting the matter down on the unopposed roll.

It must be appreciated that rules are practical ones for the proper administration of the courts and a court must never be a slave of its own rules. See Scottish Rhodesian Ltd v Honiball 1973 (2) SA 747 (R) where BECK J…, said….,.:

“The Rules of court are not laws of the Medes and Persian and in suitable cases the court will not suffer sensible arrangements between the parties to be sacrificed on the alter of slavish obedience to the letter of Rules.”

See also Nxasana v Minister of Justice & Anor 1976 (3) SA 74 S (D)…., where DIDCOTT J stated:

“The rules, after all, are the court's tools, fashioned for its own use. They are more flexible, and more easily adapted to meet particular needs, than a statute can ever be.”

Sentiments to the same effect were expressed by WINSEN AJA…., in Federated Trust Ltd v Botha 1978 (3) SA 645 A…, when he said:

“The court does not encourage formalism in the application of the rules. These rules are not an end in themselves to be observed for their own sake. They are provided to secure the inexpensive and expeditious completion of litigation before the courts.”

In their plea, filed of record on 13 October 2011, the defendants raised a plea in bar against the second plaintiff; that it was not a locally registered company, it was a peregrine and needed to found jurisdiction in Zimbabwe by providing security for costs….,.

At the hearing of the matter, a Certificate of Incorporation, number 27838/2008, tendered on behalf of the second plaintiff, disposed of the first issue for determination at trial.

The first defendant is a peregrinus whose address is given in the summons as Bracken Gardens Alrode, Johannesburg, South Africa. The said company does not have property located within the Zimbabwean jurisdiction but has haulage trucks which ply Zimbabwean routes on commercial deliveries in Zambia. On 30 April 2009, the plaintiff instituted summons action out of this court against the first defendant and the second defendant which is also a peregrinus of South Africa origins.

The plaintiff claimed the replacement of its Toyota Hilux motor vehicle and a trailer damaged as a result of a collision with the first defendant's haulage truck on 18 August 2007. He also claimed certain damages which arose as a result of the same accident.

At the time the summons was issued, the plaintiff had not obtained a court order for attachment of the first defendant's property to confirm or found jurisdiction against the peregrine defendants. It was not until the 9th June 2009, almost 11/2 months after the summons was issued, that the plaintiff filed an application in this court seeking an order for attachment of property to found jurisdiction and it was not until the 30th June 2009, exactly 2 months after the summons had been issued, that the order of attachment of property was granted by NDOU J under case no. HC879/09. The said order reads, in part, as follows:

''IT IS ORDERED:

1. That the Deputy Sheriff be and is hereby authorised and directed to impound any of the 1^st respondent's vehicles crossing the border into Zimbabwe, or already in Zimbabwe, in order to found jurisdiction.

2. That the Deputy Sheriff shall retain the vehicle so impounded until litigation in the matter no. HC672/09 is finalised.

3. That 1^st and 2^nd respondents pay the storage charges for the vehicle jointly and severally the one paying the other to be absolved.

4. That 1^st and 2^nd respondents pay the costs of this application on an ordinary scale jointly and severally the one paying the other to be absolved.”

The Deputy Sheriff for Beitbridge effected service of the summons on the first defendant's driver at Beitbridge Border Post on 12 July 2009, and in pursuance of the order for attachment, he attached an International Truck registration number LRP 232 GP and a trailer registration number TXL 411 GP belonging to the first defendant.

This was for purposes of founding jurisdiction when the summons in the matter had already been issued out.

The attachment of the vehicle and trailer forced the first defendant to file an urgent chamber application (HC1169/09) on 24 July 2009 seeking an order for the release of the vehicle. The matter was later amicably resolved and an order granted by consent on 31 July 2009 for the release of the truck and trailer against a payment of $3,000= to the plaintiff's legal practitioners in order to confirm jurisdiction.

On 17 November 2009, the first defendant excepted to the Summons and Declaration on the following grounds:

''1. The Plaintiff's Summons and Declaration, under case no. HC672/2009, is an invalid process and therefore null and void in that the summons was issued and sent for service against the first Defendant, who is a peregrinus before the Plaintiff had obtained an order of attachment to found or confirm jurisdiction.

2. It is submitted that the order of attachment granted by the Honuorable Mr Justice Ndou on 30^th June 2009 to found jurisdiction did not serve to validate the summons and Declaration issued earlier on under case no. HC672/2009 as the granting of the attachment order is a condition precedent to the issue of process.

3. Further, and in any event, the order for attachment granted by the Hounourable Mr Justice Ndou as abovestated is invalid as it ordered the attachment of First Defendant's property which was not within the jurisdiction of the courts of Zimbabwe at the time that the order was granted.''

The first defendant, as excipient, prays that the summons be struck down by reason of invalidity and that the money paid to the plaintiff's legal practitioners for security be refunded.

In response to the exception, the plaintiff stated that the exception is without merit by reason that:

1. The cause of action arose within the jurisdiction of this court;

2. The summons could not be served on the first respondent because it and its assets are located outside the jurisdiction of this court;

3. An application for attachment was made to facilitate service of summons which attachment ''found and confirmed'' jurisdiction and therefore the order for attachment was not validating the summons which was already valid.

Counsel for the excepient has argued that to the extent that the summons was issued before an order for attachment was sought and obtained such summons is invalid and of no legal effect. He has cited the persuasive authority of the learned authors HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts of South Africa, the 3^rd Edition (1979) of which reads….,:

“An attachment ad fundandam jurisdictionem is an attachment of the person or property of one who is domiciled and resident in a foreign country in order to make him amenable to the jurisdiction of the court. His person or property can only be attached while he or it is within the jurisdiction of the court out of which the attachment order is issued, and the effect of the attachment order is either to confirm the jurisdiction which the court already has in the suit between the parties, or in certain cases, to afford it a jurisdiction in the matter which it would not other wise have had.''

At 788 the learned authors state:

''Where an incola wishes to sue a peregrinus and none of the usual grounds upon which the court might have jurisdiction is present, attachment is a condition precedent to the action for it is upon the attachment that the court's jurisdiction is founded.''

They go on at 789:

''In addition to the grounds mentioned by De VILLIERS CJ, quoted above, a court will have jurisdiction to try a suit arising out of a delict committed within the area of its jurisdiction, whether the suit be between an incola and a peregrinus or between two peregrini. But in this case, too, attachment is a condition precedent to an action. But in an action ex delicto, a peregrinus cannot obtain an attachment where none of the ordinary grounds of jurisdiction exists.''….,.

Counsel for the plaintiff has argued that these authorities should be ignored as they are archaic and that the position of our law is governed by section 15 of the High Court Act [Chapter 7:06].

I agree with counsel for the plaintiff that the position in regard to attachment to found or confirm jurisdiction in Zimbabwe is now clearly governed by statute. I, however, disagree that the issue of summons must precede the authority to be granted by the court to sue a peregrinus either by edict or by attachment. Section 15 of the High Court Act [Chapter 7:06], relied upon by counsel for the plaintiff, provides:

''In any case in which the High Court may exercise jurisdiction founded on or confirmed by the arrest of any person or the attachment of any property, the High Court may permit or direct the issue of process, within such period as the court may specify, for service either in or outside Zimbabwe without ordering such arrest or attachment if the High Court is satisfied that the person or property concerned is within Zimbabwe and is capable of being arrested or attached and the jurisdiction of the High Court in this matter shall be founded or confirmed as the case may be, by the issue of such process.''…,.

That provision did not discharge the plaintiff from the burden of having to satisfy the court, before the issue of process, that the peregrinus was present within Zimbabwe for arrest or had property within the country capable of attachment. Monarch Steel (1991) (Pvt) Ltd v Fourway Haulage (Pty) Ltd 1997 (2) ZLR 342…, and ClanTransport Co. (Pvt) Ltd  v Govt of the Republic of Mozambique 1993 (3) SA 795 (Z)…,.

In Stanmarker Mining (Pvt) Ltd v Metallon Corp Ltd & Others 2003 (1) ZLR 389…, CHINHENGO J stated:

“It must be clear from the above remarks that s15 of the High Court Act does not dispense with the need to show that the court has jurisdiction which may be founded or confirmed by the attachment of property or the arrest of the defendant. That is the single issue which the applicant had to deal with before he could obtain other associated relief.''

At the time the summons was issued, on 30 April 2009, neither the first defendant nor its property were located in Zimbabwe. In addition, no authority or permission had been obtained from the court to issue the process. Perhaps it was upon a realisation of that glaring omission that counsel for the plaintiff desperately tried to stretch the meaning of the word ''court'' as used in section 15 of the High Court Act [Chapter 7:06] to include the Registrar of the High Court, who issues the process, and sought to argue that by issuing the process the Registrar had permitted and directed its issue without an order for attachment.

There is no way the word ''court'' in that section can be interpreted to include the Registrar. There is no way a summons can be lawfully sued out against a peregrine defendant without the leave of the court. Where such summons is issued, it is clearly invalid and of no legal effect.

I now turn to deal with the effect of the attachment order issued by NDOU J on 30 June 2009.

In his application for an attachment order, the applicant disclosed that he had issued summons against the defendants, under case no. HC672/09, for damages and that he wanted ''an order for the impoundment of 1^st respondent's truck when it comes into Zimbabwe to found jurisdiction.'' The court was persuaded by the application and granted the order cited….,.  Clearly, that order was granted in error as the plaintiff (applicant in HC879/09) had not discharged the onus that either the first defendant or its property was present within the territorial jurisdiction of Zimbabwe and therefore capable of attachment or arrest. In addition, no permission had been sought and granted as provided for in section 15 of the High Court Act [Chapter 7:06] to issue summons; the said summons having been issued without leave.

It is significant that NDOU J's order of 30 June 2009 did not grant such permission, even in retrospect, which could not be done, as attachment or the existence of the defendant or his property within Zimbabwe is a condition precedent to the issue of process.

In the absence of the defendant and/or its property within Zimbabwe, the order made on 30 June 2010 was a nullity. In Ngani v Mbanje & Anor 1987 (2) ZLR 111 (S), the Supreme Court, per KORSAH JA, pronounced categorically that if legal process is instituted based on a cause of action which has not yet accrued it is a nullity and a default judgment granted on the non-existent cause of action is void and of no effect . At 114 G-H and 115A the learned Judge of Appeal said:

''If at the time action was instituted, a right of action had not accrued to the plaintiff or applicant, as the case may be, then no cause of action is established by the initiating process. Put another way, the plaintiff or applicant should at or before filing the initiating process, have a complete cause of action against the defendant or respondent.''

The court went on, at 115 D-F, to state:

''This objection in limine is, in my view, not a mere technical point affecting some provision of adjectival law; it strikes at the very root of the action. It is so fundamental as to render the initiating process a nullity. If there is no cause of action then a judgment pronouncing that a non-existent cause exists is void and of no effect. As LORD DENNING observed in Macfoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 11721;

'If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there.  It will collapse. So will this judgment collapse if the statement of claim was a nullity.'''

See also Heating Elements Engineering (Pvt) Ltd v Eastern & Southern Africa Trade & Development Bank 2002 (Z) (I) ZLR 351 (S)…,.

In light of the fact that there was no property belonging to the peregrini defendant located in Zimbabwe at the time the order for attachment was made that order was a nullity. To that extent, everything which flowed from it including, the service of the summons and the purported attachment of the first defendant's property, was a nullity. To the extent that the settlement of the parties, confirmed by order of CHEDA J, dated 31 July 2009, was predicated on a nullity, it was also a nullity and no legal rights arose from that adventure.

I therefore intend to set aside that order in terms of Rule 449(1) of the High Court Rules. In the result, I make the following order to wit that: