George Bhudhe and Emely Chinhanga v Sakhile Dube and Sensene Investments (Pvt) Ltd and Pinnacle Property Holdings and Udicorp and The Messenger of Court N.O

The first respondent (Sakhile Dube) issued summons in the Magistrates' Court seeking eviction of the first appellant (George Bhudhe) from Stand 9898 Stoneridge Township, Harare. The first appellant entered appearance and filed a plea claiming the property belonged to his mother, the second appellant (Emely Chinhanga). A joinder application resulted in the second appellant and other parties being joined as defendants. The second appellant was allegedly served with summons through the Messenger of Court, with the return of service indicating service on "a cousin, Chipo Chinhanga" at 2781 Glen Norah B on 29 July 2024. The second appellant denied this was her address, stating her address for service was her legal practitioners at L.T. Muringani Law Practice. Significantly, the first respondent's own legal practitioners wrote to the Messenger of Court on 7 August 2024, noting that earlier service had been improperly effected and directing re-service. Despite this, a default judgment was granted ordering the eviction of the second appellant. The appellants only became aware of the default judgment in January 2025 when the Messenger of Court served a notice of removal. The appellants applied for rescission, which was dismissed by the Magistrates' Court. They appealed to the High Court.

• Whether proper service of summons was effected upon the second appellant
• Whether a return of service can be rebutted by contradictory evidence
• Whether a default judgment granted without proper service is void or voidable
• Whether the court a quo erred in treating the matter as an ordinary rescission application rather than as a nullity
• Whether the Magistrates' Court had jurisdiction over the second appellant in the absence of proper service

1. The appeal succeeds. 2. The judgment of the court a quo dismissing the appellants' application for rescission of default judgment is set aside. 3. The default judgment granted under case number HREC-CG 2115/23 is set aside in its entirety. 4. The matter is remitted to the Magistrates' Court, Harare, for hearing of the main action on the merits before a different magistrate. 5. The 1st respondent shall serve the summons on the second respondent at her given address for service, number 12 Hackney Road, Cranborne, Harare within five days from the date of this judgment. 6. The first respondent shall bear the appellants' costs of appeal.

1. Proper service of summons is a jurisdictional prerequisite for a court to exercise power over a defendant. A judgment granted without proper service is void, not merely voidable. 2. A return of service constitutes only prima facie, not conclusive, proof of service and may be rebutted by clear, incontrovertible and satisfactory evidence. 3. Where it is established that no proper service was effected, the default judgment is a nullity and must be set aside, without the need to satisfy the ordinary requirements for rescission (reasonable explanation for default and bona fide defence with prospects of success). 4. The assessment of "wilful default" and application of rescission criteria under Order 30 only arises after it has been established that the defendant was obliged in law to act because she had been properly served. 5. A party's own contemporaneous correspondence acknowledging defective service constitutes compelling evidence rebutting the presumption arising from a return of service.

The court noted in passing that the appellants had raised concerns that the default order granted relief beyond what was sought in the summons and that the magistrate treated the second appellant as if she had been a party from inception when the pleadings did not support that. The court observed that there was substance in these complaints, as a court is generally bound by the pleadings and may not grant relief that has not been sought. However, the court stated it was unnecessary to deal exhaustively with these issues as the decisive point was the absence of jurisdiction over the second appellant due to lack of proper service. The court also observed that the appeal was not about the merits of whether the first respondent ultimately has a stronger claim to the property than the appellants, nor whether the appellants' defence will succeed—these substantive issues would be determined when the matter proceeds on the merits.

This case reinforces fundamental principles of natural justice and procedural fairness in Zimbabwean civil procedure. It establishes that proper service of process is a jurisdictional prerequisite, not a mere procedural formality. The judgment emphasizes that a return of service, while prima facie proof, can be rebutted by clear contradictory evidence, including the respondent's own contemporaneous correspondence acknowledging defective service. The case clarifies that where service is never properly effected, the default judgment is void ab initio (a nullity), and the court should not apply the ordinary rescission criteria (explanation for default and prospects of success) but should instead set aside the judgment for want of jurisdiction. This protects defendants' fundamental right to be heard before orders affecting their person and property are made.