Golden Reef Mining (Private) Limited and Ferbit Investments (Private) Limited v Mnjiya Consulting Engineers (Private) Limited

The first applicant (Golden Reef Mining) had chrome mining claims registered in its name. The second applicant (Ferbit Investments) was its subsidiary. On 11 March 2011, both applicants entered into an agreement with the respondent (Mnjiya Consulting Engineers) whereby the respondent acquired 40% of the Ferbit Chrome Projects for US$400,000. A second Joint Venture Agreement (JVA) was signed on 26 June 2013, confirming the respondent's 40% shareholding based on the $400,000 contribution. The JVA specified the second applicant's domicilium citandi et executandi as 15 Harrow Avenue, Avondale, Harare. The chrome mining business came to a halt when the Government of Zimbabwe issued a directive that chrome could only be exported in refined and beneficiated form. On 11 December 2014, the respondent issued summons claiming US$415,616.66 plus interest and costs. The summons was served at 15 Harrow Avenue by affixing it to the outer gate after unsuccessful diligent search. The applicants did not enter appearance to defend, and default judgment was granted on 2 February 2015. The applicants became aware of the judgment on 27 February 2015 when the Deputy Sheriff seized equipment at their mining site. They applied for rescission of the default judgment.

• Whether there was good and sufficient cause to rescind the default judgment
• Whether service of summons at the domicilium citandi et executandi specified in the JVA constituted proper service
• Whether the applicants provided a reasonable explanation for their default
• Whether the applicants had a bona fide defence on the merits with prospects of success
• Whether the applicants admitted liability for the debt claimed

The application for rescission of the default judgment granted on 2 February 2015 was dismissed with costs.

Service of process at a domicilium citandi et executandi contractually agreed upon by parties constitutes proper and valid service, even if effected by affixing documents to a gate after diligent search, and even if the chosen address is a vacant piece of land. A party seeking to change their contractually specified domicilium must provide written notice as required by the agreement; absent such notice, the original address remains valid for service. For rescission of default judgment, an applicant must establish both a reasonable explanation for the default and a bona fide defence with prospects of success. A written admission of liability in correspondence, even if proposing payment terms, constitutes an acknowledgment of debt that undermines prospects of success in defending a claim, particularly where there is no evidence of revocation of such admission.

The court noted that even service on a vacant piece of land is proper service as long as that address has been chosen as the domicilium citandi et executandi, following the principle established in I'ons v Freeman & Frock 1916 WLD 64. The court also observed that the economic difficulties faced by the applicants, including adverse government policies affecting the chrome industry, while unfortunate, did not negate their liability or provide grounds for rescission of the judgment. The court expressed that it would be unwise to try to sell off assets in a subdued market, echoing the applicants' own concerns expressed in their correspondence, though this was not determinative of the legal issues before the court.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the binding nature of domicilium citandi et executandi clauses in contracts and the requirement for formal written notice of any change of address; (2) the validity of service by affixing documents at a chosen domicilium after diligent search; (3) the strict requirements for rescission of default judgment, particularly the need for both a reasonable explanation for default AND a bona fide defence with prospects of success; and (4) the evidential weight of written admissions of liability in contractual disputes. The judgment demonstrates the court's reluctance to rescind default judgments where parties have contractually agreed to addresses for service and then fail to follow the agreed procedures for changing such addresses.