The respondent, a UK resident, advanced two loans to the applicant through her legal practitioner: US$45,000 on 3 July 2020 and a second loan (disputed as either US$20,000 or US$14,323) in July/October 2020. A loan restructuring agreement was executed on 8 October 2020 reflecting a total debt (disputed as either US$65,463 or US$59,323) with 10% monthly interest, payable over six months, secured by a mortgage bond over the applicant's property. The applicant paid only two instalments totaling US$13,092 and defaulted. The respondent issued summons on 6 May 2021 for US$85,000 (capital plus interest). Service was allegedly effected at the applicant's domicilium citandi (19 St Malo Villas, Greendale) by placing documents in a letterbox after finding someone who did not know the applicant. Default judgment was granted on 30 June 2021. A writ of execution was served on 1 September 2021 at a different address (58A Beverly West, Msasa), where the applicant actually resided. The applicant then brought this rescission application in December 2021.
1. The application for rescission of judgment succeeds. 2. The default judgment granted on 30 June 2021 in case HC 2038/21 is hereby rescinded. 3. Each party to pay its own costs.
1. Service at a chosen domicilium citandi must still comply with the requirement of service on a 'responsible person' under Rule 15(13) of the High Court Rules; the common law position that service at a chosen address is always valid has been modified by Zimbabwean procedural rules. 2. Alternative service by affixation under Rule 15(13)(i) requires proof of diligent search and evidence that the person to be served is preventing or frustrating service; affixation inside a letterbox does not constitute placement in a 'conspicuous place'. 3. A party who serves process at an address different from the domicilium citandi thereby demonstrates knowledge of a change of address and cannot rely on the doctrine of privity of contract to enforce the originally chosen address. 4. For rescission of judgment, prospects of success need not be certain; the existence of triable issues, particularly involving statutory interpretation supported by Supreme Court authority, suffices to establish reasonable prospects of success.
The court observed that the return of service by the Sheriff constitutes prima facie proof of service, but this can be rebutted by examining the content of the return itself. The court noted that while the applicant failed to notify the respondent of his change of address as required by Rule 15(24), this did not cure the defective service. The court expressly declined to interpret section 20(5) of the Money Lending and Rate of Interest Act in conjunction with section 2, stating this would usurp the function of the trial court and that proper submissions on canons of interpretation should be made at trial. The court commented on the distinction between 'affixing' (which denotes pasting, pinning or securing) and merely 'placing' documents.
This case is significant in Zimbabwean civil procedure for reinforcing the stricter requirements for service of process under Zimbabwean law compared to common law and South African positions. It clarifies that service at a domicilium citandi must still comply with the requirement of service on a 'responsible person' and that alternative service by affixation requires evidence of diligent search and must be in a conspicuous place. The case also demonstrates the principle against vacillation where a party acts inconsistently regarding knowledge of address changes. The judgment preserves important questions about the territorial application of the Money Lending and Rate of Interest Act to offshore lending transactions for determination at trial, avoiding premature statutory interpretation in rescission proceedings.