Mordecai Pedzi v Least Katsande Savanhu

The respondent issued summons against the applicant for ejectment from No. 10 Knightsbridge Road, Highlands Harare and holding over damages at USD$750 per month. The applicant filed appearance to defend on 10 September 2021 after summons were served on 6 September 2021. The applicant failed to file a plea within the prescribed time limit and a notice of intention to bar was served at the property. Default judgment was granted against the applicant for failure to plead. The applicant applied for rescission of the default judgment under rule 27 of the High Court Rules, arguing improper service and that he was a director of Mord Micmax Business Consultancy Services (Pvt) Ltd, the lease holder, and therefore should be treated separately from the company. The respondent opposed the application, asserting proper service and that the applicant was in willful default. Evidence suggested the applicant had attempted to instruct a developer to construct flats on the property without the respondent's knowledge or authority as registered owner.

• Whether proper service of court process was effected on the applicant
• Whether the applicant could be separated from the purported lease holder company for purposes of service and liability
• Whether the applicant was in willful default
• Whether the applicant had prospects of success in the main matter
• Whether the corporate veil should be pierced to attribute liability to the applicant personally

The application for rescission of judgment was dismissed with no order as to costs.

A court may pierce the corporate veil and disregard separate legal personality where fraud, dishonesty or improper conduct is present, particularly where a party uses a company to frustrate service of process and the company does not exist as a functional entity outside the individual. In rescission applications, willful default occurs where a party deliberately ignores court process with full knowledge of service, and courts will refuse rescission where the applicant has designed a strategy to frustrate service, has no bona fide defense, and has no prospects of success in the main matter. Service effected in terms of rule 15(13)(i) by leaving process at the premises where the defendant prevents service or cannot be found after diligent search constitutes proper service.

The court observed that "individuals should learn to leave with grace" and that "the law should protect those who abide by the law and the rules." The court also noted that the three Songoro factors (willful default, bona fide defense, and prospects of success) are neither exhaustive nor decisive, and must be considered not only individually but in conjunction with one another and with the application as a whole, with the court retaining wide discretion. The court remarked that the applicant appeared to be "harboring evil intention" regarding the property by attempting to instruct developers to construct flats without the registered owner's knowledge or authority.

This case is significant in Zimbabwean civil procedure for its application of the principles governing rescission of default judgments and the circumstances in which courts will pierce the corporate veil. It demonstrates that courts will not allow parties to abuse the principle of separate corporate personality to frustrate service of process or delay enforcement of legitimate property rights. The case reinforces that rescission applications will be refused where there is willful default designed to frustrate the administration of justice, even where courts generally favor allowing parties their day in court. It also illustrates the application of the alternate service provisions in the High Court Rules and the court's willingness to look at substance over form where improper conduct is established.