Marimo v Mpofu (HC 2192 of 2003) [2004] ZWBHC 99 (8 September 2004)

Judgment No. HB 99/2004 Case No. HC 2192/03 CHIPO MARIMO Versus SITHEMBILE MPOFU IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 11 JUNE & 9 SEPTEMBER 2004 R Moyo-Majwabu for applicant T Moyo for respondent Judgment CHEDA J: This is an application for rescission of judgment which was granted in favour of respondent on 6 June 2002 in matter number HC 1142/02. Applicant is the respondent in case number 1142/02. Although both parties are respondents in case number 1243/03, case number 1142/02 is the most relevant in these proceedings. Applicant averred that she only became aware of case number 1142/02 after her legal practitioner of record had been contacted by Janet Moyo who was applicant in case 1243/03, well after respondent had obtained judgment against her. It is her further averrment that on perusal of the court record she discovered that the court application which she did not oppose and which resulted in a default judgment was served on Ishmael Dhlamini at office number 20 Larbourne House, Bulawayo on 10 May 2002 and a default judgment was granted on 6 June 2002. As applicant was not personally served, it stands to reason that service on Ishmael Dhlamini was served on “a responsible person” which service is in fact proper service. HB 99/04 It is applicant’s contention through her legal practitioner Mr Moyo-Majwabu that service at one of her employer’s premises in Bulawayo is not proper service, since she was based in Chivhu at the time of the said service. Mr Moyo for respondent on the other hand contends that this type of service is, no doubt, proper service which entitled respondent to a default judgment in the absence of opposition. The question which falls for determination is whether service on Mr Ishmael Dhlamini described by the Deputy Sheriff as “a responsible person and clerk found present at the place of employment of the respondent Chipo Marimo namely office number 20 Larbourne House, L Takawira Ave, Lobengula St, Bulawayo” is proper or effective service as envisaged in the rules which read – “Order 5 Service of Process 39. Manner of service of process generally (2) Subject to the order, process other than process referred to in sub-rule 1) may be served upon a person in any of the following ways – (a) … (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 whose address for service.” Applicant averred that she indeed is employed by a company carrying on business at 20 Larbourne House, but she was based at the Chivhu Branch. It is for HB 99/04 this reason that she contends that she was not properly served and as such she only became aware of the said judgment through her legal practitioner and thereafter lodged her application for rescission of judgment within 30 days from the date she learnt of the default judgment. In light of that she is of the view that she was not in wilful default. It is a fact which was not challenged, that, although applicant’s employers carry out their business at 20 Larbourne House they also carry out business in Chivhu, which is a place applicant was employed and in other words where she was physically (my emphasis). I do not think that the rules envisaged “a place of employment” as a place other than where applicant was not ordinarily and physically at. In Solomon v Arkon Motors (Pvt) Ltd 1960 (4) GA 329 appellant appealed against the decision of the magistrate for dismissing his application for rescission of judgment made against him as the trial court had found him to have been in wilful default of entry of appearance to defend. The summons was addressed to the defendant as “c/o Printing Dept, c/o Cola Bottling Co. Johannesburg, 8 Owl Street, Braaufontein, Johannesburg.” The messenger of court’s return of service was endorsed – “You are hereby informed that the above mentioned process in this matter could not be served on the defendant on the date hereof as he could not after diligent search be found at the address given. Coca Cola has only one K M Solomon who has no knowledge of this matter.” The contents of the return of service were obviously not satisfactory to plaintiff’s legal practitioner who gave further instructions regarding who to enquire from at the alleged defendant’s place of employment. The messenger of court after service sent a return of service with the following endorsements – HB 99/04 “On the 12/5/1959 at 850a.m the defendant was duly served with the above mentioned process in this case by delivering a copy thereof to the secretary at defendant’s employment …” There was a further return of service which was lodged in court in support of applicant for default judgment and it read “… defendant leaves and returns irregularly at employment informed by receptionist.” STEYN J at page 330H-331A held- “…it does not seem to me that rule 8(3)(iii) can be interpreted to mean that service can be effected upon a defendant by delivering a copy of the summons to the secretary of the company by whom he is employed irrespective of he address at which he is employed. The rule clearly says “at his place of employment” which in my view, means the place where he is employed, and not upon the secretary of the company by whom he is employed, irrespective of the place where he is employed. A company may have various subsidiaries in various parts of the Union and a person may be employed by a company with the registered office in Johannesburg while the person is employed for instance in Cape Town. Service upon the secretary of the company in Johannesburg would not be service “at the place of employment” of the person concerned if he is employed at Cape Town.” See also Smith v Smith 1947(1) SA 474 and Greame v Herritage & Co 1884-1887(4) 358. I totally associate myself with the learned judge’s reasoning in the above case. It is a fact that due to the expansion and wide diversity in both the industrial and commercial sectors, companies do not necessarily carry out their businesses where they were originally operating from or from their registered companies offices. It is for this reason that employees are placed at different places quite often, away from where they were, when they were first engaged. It will be, in my view, not correct to say that a party who although was working in Bulawayo but transferred to Chivhu should still be regarded as employed in Bulawayo for the purpose of the rules of this court. Such a person, strictly speaking can not be said to be working in Bulawayo HB 99/04 as he/she will in fact not be in Bulawayo. Service of court process upon a person who is not ordinarily and physically present at either is residence or employment can not and should not be regarded as proper and effective service as per the rules of this court. In conclusion therefore, I hold that service upon Ishmael Dhlamini a clerk in applicant’s Bulawayo office was defective ab initio and accordingly there was no wilful default on applicant’s part and is therefore entitled to defend respondent’s action. This application accordingly succeeds with costs. Messrs James, Moyo-Majwabu & Nyoni applicant’s legal practitioners Hwalima, Moyo & Associates respondent’s legal practitioners