Baishun Mining Company Private Limited v Chinda Resources Private Limited and Others

The parties had a contractual business relationship beginning on 11 October 2021. In April 2022, the 1st respondent issued a court application (HC 2439/22) against the applicant. The application was served by the Sheriff at 15 Drew Road, Chisipite, Harare on 14 April 2022 at 1228 hours. This address was the applicant's registered office/principal place of business as recorded in its CR5 form. The Sheriff's Return of Service indicated that service was accepted by 'Obvious', a self-identified caretaker at the premises. No Notice of Opposition was filed, and a default judgment was granted. On 8 June 2022, one of the applicant's directors (Chen Baoguo) learned of the default judgment. On 14 June 2022, the applicant filed an application for rescission of the default judgment, arguing that service was invalid and that 'Obvious' was unknown to them. The applicant initially claimed the address was not its domicilium citandi or registered address, and later supplemented this by stating that even if service was at the correct address, 'Obvious' never brought the papers to the directors' attention, and the directors were in Mozambique at the time. There were contradictions between the founding affidavit (stating the director travelled to Mozambique 5 May to 7 June 2022) and supplementary affidavit (stating directors were in Mozambique when service was effected on 14 April 2022).

• Whether the default judgment was erroneously sought or erroneously granted in the absence of the applicant under Rule 29(1)(a) of the High Court Rules, 2021
• Whether service of process at the company's registered office on a person identifying himself as a caretaker was valid and effective service
• Whether the applicant was in wilful default
• Whether the applicant established good and sufficient cause for rescission of the default judgment
• The evidential weight of a Sheriff's Return of Service and whether it was rebutted

The application for rescission was dismissed with costs.

The binding legal principles established are: (1) Service at a company's registered office or principal place of business as recorded in official company records (CR5 form) is valid service on the company, even if not specified as domicilium citandi in a contract between parties. (2) A Sheriff's Return of Service carries prima facie proof of its contents, which if not genuinely disputed, graduates to proven fact. (3) To rebut a Sheriff's Return of Service, a party must provide more than mere denial - credible contradictory facts must be presented. (4) For rescission under Rule 29(1)(a), the applicant must establish that the judgment was erroneously sought or erroneously granted; proper service negates any claim of erroneous grant. (5) Material contradictions in affidavits and dishonesty will defeat an application for rescission. (6) A company is a separate legal persona from its directors, and service on the company at its registered office is primary, not service on individual directors.

The court made the following non-binding observations: (1) Courts should discourage material non-disclosures, mala fides or dishonesty in applications (citing Anabas Services case). (2) Rule 29 rescission powers are an exception to the general principle that a court becomes functus officio and cannot revisit its own judgment, and must be sparingly applied in the interests of justice. (3) In determining whether to rescind, the court must 'turn back the clock of time' and ask whether it would have granted the judgment had it known the facts currently being explained. (4) The fact that a director resided at a different address (Borrowdale Brook) is 'neither here nor there' when service was properly effected on the company. (5) An affidavit from 'Obvious' stating he did not bring the application to the directors' attention would 'in all probability have altered the conclusion' of the application.

This case is significant in Zimbabwean civil procedure law (though not a South African case as initially suggested by the parameters, this is a Zimbabwean High Court judgment). It clarifies important principles regarding: (1) the validity of service of process on a company at its registered office/principal place of business; (2) the evidential weight of a Sheriff's Return of Service and the high threshold required to rebut it; (3) the requirement for credible and consistent explanations in rescission applications; (4) the principle that a company is a separate legal persona and service should primarily be on the company rather than individual directors; (5) the court's approach to material contradictions and dishonesty in affidavits; and (6) the restrictive application of Rule 29(1)(a) rescission powers, which are an exception to the functus officio principle.