Unopposed
Application
NDOU
J: The
issue here is whether the plaintiff complied with Order 35 Rule
272(1) of the High Court Rules, 1971.
The salient facts are the
following:
The plaintiff issued out, at
this court, summons incorporating a declaration on 10 June 2011. The
summons, together with plaintiff's declaration were served on the
defendant personally by the Deputy Sheriff of Bulawayo on 10 June
2011.
The defendant did not contest
the summons.
After
the expiry of the dies
induciae,
the plaintiff set the matter down for 28 July 2011. The notice of
service of set down was served on the defendant personally on 14 July
2011.
The defendant was not in
attendance on 28 July 2011.
It
is common cause that the plaintiff did not serve the defendant with a
notice described in Rule 272(1) supra.
Rule 272(1) provides:
“(1)
In an action for restitution of conjugal rights, divorce, judicial
separation or nullity of marriage where the defendant has failed to
enter appearance –
(a)
If the declaration has not been served with the summons
the plaintiff wishing to obtain judgment shall file and deliver his
declaration and either simultaneously or subsequently a notice in
accordance with Form No. 30 calling upon the defendant if he wishes
to defend, to purge his failure to enter appearance to plead, answer
or except or make claim in reconvention within twelve days of the
date of delivery of the notice and informing him that in default
thereof judgment will be prayed against him;
(b)
If the declaration has been served with the summons, the plaintiff
wishing to obtain judgment shall file and deliver the aforesaid
notice to the defendant
after the expiry of the dies
induciae,
as calculated in the proviso to Rule 119.
(2) Thereafter the plaintiff
may –
(a) in the case of an action
for conjugal rights set the case down for trial without notice to the
defendant.
(b) in the case of a claim for
a final order of divorce, for judicial separation or for nullity of
marriage, set the case down for trial but shall serve personal notice
of set down upon the defendant, and in such case the court shall not
proceed to trial unless it is satisfied that the personal notice of
the defendant has been drawn to the fact that the matter has been set
down for trial or that for good and sufficient reason the giving of
personal notice is impracticable.” (Emphasis added)
Reading
Rule 272(1)(b) supra,
in isolation, the plaintiff is not entitled to the order prayed for
because she did not file and deliver to the defendant the notice
defined in Rule 272(1)(a), supra.
But when Rule 272(1) is read
with Rule 269A a different picture emerges.
Rule 269A reads –
“The
summons commencing an action mentioned in this Order may, at the
option of the plaintiff, be issued in Form No. 30A, to which a copy
of the plaintiff's declaration shall be annexed, in which case the
provisions
of Rule 272 shall not apply to such an action.”
(Emphasis added)
The summons in this case was
issued in Form 30A and a copy of plaintiff's declaration was
annexed thereto. Both the summons and declaration were served on
defendant.
In the circumstances the
provisions of Rule 272 do not apply. There is no need for the
plaintiff to file and deliver the notice prescribed in Rule 272(1).
This
construction does not, however, dispense with the requirement for the
personal service of the notice of set down as discussed in Strydom
v Strydom
2003 (1) ZLR 379 (H).
The requirement that there be
personal service is not only premised on the provisions of Rule 272.
It is also based on the salutary rule of practice. As stated by
TREDGOLD CJ in Butler v Butler 1951 SR 122 –
“It
has always been the practice in this court that where the divorce is
sought on the grounds of desertion the restitution order must come to
the personal
knowledge of the defendant:
in other words although he has knowledge of the proceedings and has
authorized attorneys to act on his behalf the court has always
insisted that in its final stages he should be given personal notice
of the proceedings in order that he might reconsider his position.
It
seems illogical that in other cases where a divorce reaches its final
point it should be allowed to proceed without any notice to the
defendant …
So this seems to me to be a
salutary rule of practice.” (Emphasis added)
See
also Africa
v Africa
1944 CPD 78; Le
Roux
v Le
Roux
1957 R & N 831 (SR) and Barkehuizen
v Kruger
1959 (3) SA 506 (O).
This salutary rule is informed
by the irreparable harm that may result in a final decree of divorce.
Divorce results in a finality in the change of status of the
parties.
Accordingly, because the
plaintiff filed and served the summons in Form 30A together with a
declaration, there is no need for her to serve the notice prescribed
in Rule 272.
It is for these reasons that I
granted the divorce as prayed for.
Calderwood,
Bryce Hendrie & Partners,
plaintiff's legal practitioners
