Beatrice Makanyara (Nee Tasara) v Tapiwa Wamambo and Others

The applicant and first respondent are married but both currently reside outside Zimbabwe. The applicant has sued for divorce under case HC 2517/22, which is pending. On 6 June 2022, the applicant approached the court urgently seeking an interdict preventing the first respondent from disposing of or encumbering various immovable properties in Zimbabwe and the United Kingdom pending the outcome of the divorce proceedings where the applicant is claiming a share. The applicant's legal practitioners attempted to serve the urgent application on the first respondent through his brother, Fanuel Wamambo, at his residence in Goromonzi. Fanuel Wamambo appeared in court and objected, stating that the first respondent had never resided at his address, that he had no authority to receive documents on his brother's behalf, that he did not know his brother's whereabouts (the parties had left Zimbabwe for the UK in 2007), and that he did not wish to be involved in the dispute. The Sheriff had effected service by affixing the application on the sliding gate at Fanuel Wamambo's residence. The applicant relied on a previous order for substituted service in the divorce case (HC 2517/22) and Rule 15(13)(b) of the High Court Rules 2021.

• Whether service of the urgent application was properly effected on the first respondent
• Whether an order for substituted service in one matter (the divorce case) applies to related but separate proceedings (the urgent application)
• Whether service effected at the residence of a third party who is not an agent and has not consented to receive service constitutes proper service
• Whether proceeding without proper service would breach the constitutional right to be heard under section 69 of the Constitution of Zimbabwe

The matter was struck off the roll. The applicant was ordered to pay the costs of Fanuel Wamambo.

Service of process is central to the realization and enjoyment of the constitutional right to be heard under section 69 of the Constitution of Zimbabwe. An order for substituted service granted in one matter is specific to that matter and cannot be applied to related but separate proceedings. Service effected at the residence of a third party who is not an agent of the party to be served, who has not consented to receive service, and whose address is not the chosen address for service, does not constitute proper service. Courts have a duty to ensure that a litigant's attention has been properly drawn to proceedings before commencing a hearing, particularly where the relief sought materially affects the litigant's rights and the matter does not fall within the exclusionary rule under Rule 60(3) of the High Court Rules 2021.

The court made important obiter observations criticizing the practice of applying to serve divorce papers on relatives of parties where the relative is not cited and is not served with the application for substituted service. The court stated that this practice is undesirable and cannot be in accordance with real and substantial justice because it drags third parties into proceedings without making them aware of the proceedings or giving them an opportunity to be heard. The court noted that such practice places legal obligations on third parties at their own expense to contact relatives, irrespective of whether they are on good terms or know their whereabouts, and that it is not legally correct to place such obligations on persons who are neither parties nor interested parties without giving them an opportunity to be heard. The court stated: 'It simply cannot be fair nor can it be legally correct.'

This case is significant for establishing procedural safeguards regarding service of process in Zimbabwean law. It reinforces the fundamental importance of proper service as a prerequisite to the constitutional right to be heard under section 69 of the Constitution of Zimbabwe. The judgment clarifies that orders for substituted service are matter-specific and cannot be applied to related but separate proceedings. It also provides important guidance on the limits of substituted service, particularly criticizing the practice of compelling relatives to receive service on behalf of parties without giving those relatives an opportunity to be heard or consent to such arrangement. The case emphasizes that courts must ensure proper service has been effected before entertaining applications, particularly where the relief sought materially affects a party's rights (such as proprietary rights in this instance).