Mugari (Nee Tapfuma) v Mugari (689 of 2022) [2022] ZWHHC 689 (12 October 2022)

1 HH 689-22 HC 4666/22 SHARON MUGARI (NEE TAPFUMA) versus CLIFFORD MUGARI HIGH COURT OF ZIMBABWE MAXWELL J HARARE, 27 September 2022, & 12 October 2022 Chamber Application - Substituted Service MAXWELL J: On 18 November 2020, the parties in this matter signed a Consent Paper in which Respondent agreed that he would pay the applicant USD1200 within 12 months of the grant of a divorce order. The money was proceeds of the sale of applicant’s vehicle which respondent admitted to have disposed of. On 10 December 2020 a decree of divorce was granted incorporating the consent paper. It is alleged that the respondent has refused or neglected to comply with the order. A writ of execution was issued following which the sheriff issued a nulla bona return. Summons for civil imprisonment were issued. Attempts were made to serve the respondent at his work place. The return of service indicated that Air Force of Zimbabwe Officers in the Registry at K. G.6 advised that it is difficult to locate the respondent without specifying his work department. On 14 July 2022 applicant filed this application for substituted service in terms of r 19 as read with r 60 (2) of the High Court Rules, 2021. The grounds for the application are stated as: “1. The applicant has issued summons for civil imprisonment under case no. HC 3604/22. 2. The respondent has on numerous occasions advised that he leaves his home early in morning (sic) before 6 am for work and returns late at night. 3. Unsuccessful attempts have been made to personally serve the summons for civil imprisonment on the Respondent at his place of employment.” The deponent to the affidavit attached to the application states that the parties are engaged in another matter in which respondent is represented by Messrs Pundu & Company. She seeks an order allowing service on a responsible person at respondent’s place of work and at the offices of Messrs Pundu & Company. HH 689-22 HC 4666/22 The record of this matter was referred to me in chambers on 28 July, 2022. I commented that service at the workplace is not effective without the required details and also that Messrs Pundu & Company have not assumed agency in this matter and therefore cannot be served. My comments were referred to the applicant’s Legal Practitioners. Their response is couched in the following terms: “1. The defendant’s work department is unknown. All that is known of the defendant is that he is employed at the stated address of service. It is for that reason that we have requested leave to serve the Summons on a responsible person at the said address. 2. As stated in paragraph 4 of the Founding Affidavit Pundu & Associates have not assumed agency in this matter but are acting on behalf of the Defendant in another matter between the parties. It is our firm belief that they are in constant communication with Defendant or know how to reach him. As such if papers are served on them it can safely be assumed that the papers would find their way to the Defendant. Service of the Summons on the Defendant through service of the papers on a responsible person at his place of employment and his lawyers is meant to ensure that the Summons are brought to the attention of the Defendant.” Even though the response referred to the Founding Affidavit, the affidavit on record is not stated as such. It is simply titled “Affidavit of…”. Service where the liberty of a person is at stake ought to be personal. Rule 15 (12) of the High Court Rules, 2021 provides that: “(12) Process in relation to a claim for an order affecting the liberty of a person or his or her status shall be served by delivery of a copy thereof to that person personally.” In my view, compliance with r 15 (12) is mandatory. Where there is likelihood that the liberty of a person may be restricted, r 15 (12) should be strictly complied with. The rational for requiring personal service in a case where a person’s liberty is likely to be affected arises from the realization that an order for imprisonment is harsh and has drastic consequences. See Chamunorwa Mutyambizi v Jose Maselino Goncalves and Anor and the Sheriff of Zimbabwe HH 345/13. I appreciate that r 19 of the same rules provides a remedy where service of any process cannot be effected in any of the ways provided for in r 15. In National Insurance Company of Zimbabwe v Dhlamini 1999(2) ZLR 196 (HC), it was stated that: “Civil imprisonment for a debt, it goes without saying, (is) a drastic remedy. Personal service of a civil Imprisonment summons is (in the absence of unusual circumstances) a necessity.” The question is whether or not unusual circumstances exist in this case. The answer is in the negative. The second ground given for this application is that “Respondent has on numerous occasions advised that he leaves home early…” That statement is evidence of communication HH 689-22 HC 4666/22 between the parties. In addition there is an indication that the parties are involved in litigation for a different matter. Applicant therefore has opportunities of gathering information to ensure personal service on respondent. In Scheelite King Mining Company (Pvt) Ltd v Mahachi 1998(1) ZLR 173(HC) the court dealt with an application affecting the liberty of a person in which process had been served on the respondent’s attorneys and the respondent had defaulted. The court refused to grant the order as there had been no personal service. For that reason service on Messrs Pundu & Company cannot be proper service in the circumstances. Moreso since they have no instructions from the respondent to handle the matter. Rule 19 is not meant to be utilized where there is a possibility of personal service being effected. In my view, applicant can obtain information to effect personal service in this matter if she puts more effort. I am not persuaded that substituted service is justified in the circumstances. Accordingly the application is dismissed. Honey & Blanckenberg, applicant’s legal practitioners