George Neophytos Demetriou and Others v Sipho Phugeni and Others

The first respondent, Sipho Phugeni, obtained a default judgment in the Magistrates Court (case number CC2062/21) against the applicants (George Neophytos Demetriou, Demetrios Demetriou, and Evangelia Komatina) for payment of Sterling £15,000 being a refund of part purchase price pursuant to an agreement entered into on 29 November 2017, plus interest and costs on an attorney-client scale. A writ of execution against immovable property was issued on 11 March 2024 by the Clerk of Court, and attachment proceedings were commenced against the applicants' property, being stand 8576 Bulawayo Township held under Deed of Transfer Number 3501/2002. The applicants were not resident in Zimbabwe and did not carry on business there. The applicants were not aware of the default judgment. The agreement to sell the house was concluded outside Zimbabwe. The applicants approached the High Court seeking declaratory relief that the Magistrates Court proceedings were null and void for lack of jurisdiction.

• Whether the Magistrates Court had jurisdiction to entertain the matter where the parties were not resident in Zimbabwe and did not carry on business within the province
• Whether proper service of process was effected on the applicants who were foreign-based parties
• Whether compliance with section 13 of the Magistrates Court Act was necessary to found jurisdiction
• Whether the High Court was the proper forum to challenge a decision made by a Magistrates Court without jurisdiction, or whether the applicants should have approached the Magistrates Court for rescission of the default judgment
• Whether a decision given without jurisdiction may be disregarded without the necessity of a formal order setting it aside

1. The whole proceedings at the Magistrates Court under case number CC2062/21 declared null and void and ultra vires the Magistrates Court Act [Chapter 7:10]. 2. The Writ of Execution against immovable property issued on 11 March 2024 by the Clerk of Court in case number CC2062/21 declared ultra vires the Magistrates Court Act [Chapter 7:10] and ipso facto null and void. 3. The purported sale of applicants' property (stand 8576 Bulawayo Township held under Deed of Transfer Number 3501/2002) impugned and the writ of execution set aside as irregular. 4. The respondents interdicted from purporting to use the impugned writ under case number CC2062/21 to dispose of the applicants' property. 5. The 3rd Respondent (Messenger of Court) ordered to forthwith cancel the XN Caveat 12/24 placed on the applicants' title Deed 3501/2002 by virtue of the impugned writ of execution. 6. The 1st Respondent ordered to pay the costs of suit at an attorney-client scale.

Where a Magistrates Court exercises jurisdiction over parties who are not resident within its province, do not carry on business there, and are not employed there, without proper compliance with section 13 of the Magistrates Court Act to found jurisdiction, the court acts without jurisdiction and its proceedings are null and void and ultra vires the Magistrates Court Act. A decision given without jurisdiction may be disregarded and declared null and void by the High Court without the necessity of proceeding by way of appeal or review in the court that lacked jurisdiction. It is illegal to proceed against foreign-based parties without fully complying with the service of process upon them.

The Court observed that had all the facts been placed adequately before the Magistrates Court, it should not have entertained the matter. The Court also noted that the applicants were not even aware of the default judgment, which underscored the importance of proper service of process and compliance with jurisdictional requirements under section 13 of the Magistrates Court Act.

This case is significant in Zimbabwean civil procedure law as it confirms that a Magistrates Court lacks jurisdiction to entertain matters where defendants are not resident within the province, do not carry on business there, and are not employed there, unless proper compliance with section 13 of the Magistrates Court Act is demonstrated. The case reinforces the principle that decisions made without jurisdiction are nullities that can be disregarded without formal appeal or review proceedings. It emphasizes the importance of proper service of process on foreign-based parties and the requirement to found jurisdiction properly before proceeding against non-resident defendants. The case also clarifies that the High Court is the proper forum to challenge Magistrates Court decisions made without jurisdiction, rather than requiring parties to seek rescission from the same court that lacked jurisdiction in the first place.