Fabio Aponte v Antolini Luigi & C.S.P.A and Others

The appellant, an Italian citizen resident in Italy, was a former director of the second respondent (a Zimbabwean granite extraction company) along with the third respondent. In 2009, the first respondent (an Italian company) entered into an agreement with the second respondent for the supply of granite blocks. The venture closed in 2010 and the appellant resigned as director and relocated to Italy, being replaced by the fourth respondent. In February 2016, while in Italy, the appellant received a letter of demand from the first respondent's Italian lawyers demanding Euro 100,836.00. The appellant responded on 1 March 2016 denying the debt. In April 2024, the appellant received a default judgment dated 18 July 2022 granted against him under case HC 8511/18 for delivery of granite blocks or payment of USD 446,322.31. The judgment had been obtained after the first respondent secured an order for edictal citation to serve the appellant by publication in a South African newspaper (The Citizen) in November 2018, despite knowing the appellant was resident in Italy. The first respondent had told the court the appellant's last known address was in South Africa (33 Middle Road, Morningside, Sandton) and failed to disclose its 2016 correspondence with the appellant in Italy. The appellant applied for condonation of late filing and rescission of the default judgment under Rule 29 of the High Court Rules, 2021. The High Court dismissed the application, finding no prospects of success as the default judgment was not erroneously granted since the order for edictal citation had not been set aside.

• Whether the order for edictal citation was validly obtained in light of the first respondent's failure to disclose material facts
• Whether the first respondent's non-disclosure of the appellant's known Italian address amounted to fraud on the court
• Whether service of summons by edictal citation in South Africa was valid when the first respondent knew the appellant was resident in Italy
• Whether the default judgment was a nullity due to invalid service of process
• Whether the High Court erred in finding that the default judgment was not erroneously granted
• Whether the Supreme Court should exercise its review powers under section 25 of the Supreme Court Act

1. The matter was struck off the roll. 2. In exercise of the court's review powers under section 25 of the Supreme Court Act: (a) the proceedings in HC 7538/18 and HCH 2270/24 were set aside; (b) the proceedings in HC 8511/18 as against the appellant were set aside. 3. The first respondent was ordered to pay the appellant's costs. A corrigendum was issued on 24 September 2025 to correct patent errors and ambiguity in the original order.

1. In ex parte applications for edictal citation, applicants must make full disclosure of all material facts that might affect the granting of the order, in utmost good faith. 2. Deliberate concealment of a defendant's known address and prior successful communication with that defendant constitutes fraud on the court. 3. An order for edictal citation obtained through fraudulent non-disclosure of material facts is a nullity. 4. Service of process pursuant to an invalid order for edictal citation is itself invalid and of no force. 5. A default judgment obtained following invalid service of process is a nullity. 6. A nullity cannot beget a valid process - all proceedings flowing from a nullity are themselves void. 7. Valid service of process is essential to safeguard the constitutional rights to administrative justice and fair hearing. 8. According to common law, judgments are void where there has been no proper service, no proper mandate, or the court lacks jurisdiction.

The court noted that generally one does not need to seek the setting aside of a nullity, suggesting that the rescission application may not have been strictly necessary had the irregularities been properly considered. The court also observed that the first respondent's conduct in subsequently seeking recognition and enforcement of the Zimbabwean judgment in Italy (where it knew the appellant resided) further confirmed its knowledge of the appellant's true whereabouts, demonstrating the deliberate nature of the deception. The court emphasized that allowing such fraudulent conduct would bring the administration of justice into disrepute. The judgment reinforces that courts will take a very serious view of non-disclosures in ex parte applications, as stated in J.W. Jagger & Co (Rhodesia)(Wholesaling)(Pvt)Ltd v Mubita 1972 (4) SA 100 (R).

This case is significant in Zimbabwean civil procedure law as it reinforces the strict duty of utmost good faith and full disclosure required in ex parte applications, particularly for orders for edictal citation under Rule 17 of the High Court Rules, 2021. It confirms that deliberate concealment of material facts, especially regarding a defendant's known whereabouts, constitutes fraud on the court and renders all subsequent proceedings a nullity. The judgment emphasizes the fundamental importance of valid service of process to protect constitutional rights to administrative justice and fair hearing under sections 68, 69 and 165(1)(a) of the Constitution. It demonstrates the Supreme Court's willingness to exercise its review powers under section 25 of the Supreme Court Act to correct fundamental irregularities even where not specifically raised. The case serves as a warning that courts will not reward cunning or deceptive litigation conduct and that a nullity requires no formal setting aside - it is simply void ab initio.