Gilbert Zhou v Cosmas Nyoni and The Sheriff of the High Court of Zimbabwe N.O.

The applicant entered into a development partnership agreement with the late Lydia Ncube to develop a 100-hectare farm (Plot number 11 of Black Waters Farm). The 1st respondent, as heir and successor to the late Lydia Ncube's estate, sought to cancel the agreement and eject the applicant from the farm. On 6 September 2021, the 1st respondent's lawyers gave applicant notice to vacate by 1 December 2021. Summons for ejectment were issued on 27 October 2021 and initially served at an incorrect address on 4 November 2021. Applicant's lawyers advised on 11 November 2021 that the address was incorrect and requested service at the correct address. The summons were subsequently served at the correct address by affixing. A default judgment was obtained, and on 11 April 2022, applicant was served with a notice of ejectment. Applicant claimed he was never properly served with the summons and brought this urgent application to suspend the ejectment and seek restoration of possession.

• Whether the matter was urgent given the history and applicant's awareness of pending litigation
• Whether service of summons by affixing constituted proper service for purposes of determining urgency
• Whether the applicant was in wilful default for failing to defend the action
• Whether the applicant had prospects of success in a pending rescission application
• Whether notification to a legal practitioner of intended service amounts to actual service in terms of court rules

The application was granted in terms of the draft provisional order, which directed: (1) the 1st and 2nd respondents not to proceed with removal and eviction of applicant from Plot number 11 of Black Waters Farm; (2) the notice of removal served on 11 April 2022 be suspended; and (3) in the event that applicant had already been ejected, applicant and those claiming occupation through him be restored to possession of the plot.

1. Notification to a legal practitioner of an intention to serve summons does not amount to service in terms of court rules - summons must be served by the Sheriff in accordance with the rules. 2. Service by affixing, while an acceptable mode of service, presents inherent difficulty in establishing that a litigant was actually aware of the service and chose to ignore it. 3. Wilful default requires more than negligence or carelessness - it implies intentional transgression, meaning conscious disregard of an obligation. Where summons are served only by affixing and not personally, it cannot be held affirmatively that the litigant received and intentionally ignored the summons, thus wilful default cannot be established. 4. Where there is a background agreement between parties, potential claims for unjust enrichment, and issues of legality and enforceability requiring full trial, a court should not deny a litigant the opportunity to present their case at the interlocutory stage when prospects of success are being considered.

The court made observations about the "numerous problems attendant to the service of court process by affixing" and noted that while acceptable as a mode of service, it creates practical difficulties in determining whether a litigant was aware of proceedings. The court also commented that the case was one where substantive issues including the legality of the agreement, whether applicant should be paid for unjust enrichment, and other matters needed to be "canvassed in a full trial with all the interested parties being heard and the matter dealt with to the bottom of the real dispute between the parties." The judge emphasized the importance of allowing litigants access to justice to present their side of the story where there may be prejudice, stating "I cannot slam the door shut on a litigant who is seeking to be heard in a matter where the background does show that there may be some prejudice to him if he is not given an opportunity to present his side of the story."

This case is significant in Zimbabwean civil procedure for clarifying the limitations of service by affixing when determining urgency and wilful default. It establishes important principles about the distinction between notification of intended service and actual service in terms of court rules, and reinforces that courts should be cautious in finding wilful default where service was by affixing only. The judgment also demonstrates the court's approach to access to justice, holding that where there are substantive issues requiring full ventilation including potential claims and issues of legality, a litigant should not be denied the opportunity to present their case at the interlocutory stage.