Pelladillo Investments (Pvt) Ltd v Rwaindepi Madongorere and Deputy Sheriff Gweru N.O.

A default judgment was entered against the applicant (Pelladillo Investments) on 14 January 2016. The first respondent (Madongorere) obtained a writ of execution and attached several of the applicant's properties on 23 February 2016. The summons and declaration had been served at "Bayhorse Road, Hanz Cross Farm Chakari" by affixing to the outer principal gate after a male employee refused to accept service. The applicant operated a gold milling site at No. 34 Chakari, which was opposite Hanz Cross Farm. Upon being served with the inventory and a copy of the default judgment, the applicant filed an application for rescission of the default judgment. The applicant then filed this urgent application on 29 February 2016 for stay of execution pending the rescission application, as removal of property was set for anytime after 26 February 2016. The underlying claim related to damages for fire burns (US$4,000) and mercury poisoning (US$20,000) allegedly suffered by the first respondent while he was employed as mine manager.

• Whether the application for stay of execution was urgent
• Whether the applicant had prospects of success in the rescission application
• Whether there was good and sufficient cause to rescind the default judgment
• Whether service of the summons was properly effected on the applicant
• Whether the applicant was in willful default when it failed to enter appearance to defend

The court granted the stay of execution. It ordered that: (1) execution of the judgment issued on 14 January 2016 be stayed; and (2) if the second respondent (Deputy Sheriff) has removed any of the applicant's property pursuant to execution, he is ordered and directed to release the removed property upon service of the order. The stay was to remain in effect pending the return date for the rescission application.

Where service of process is challenged, the Sheriff must provide precise and detailed information about the location where service was effected, including what was written on gates or premises and why the Sheriff believed that was the correct address for the party. A brief return of service that lacks such details will not suffice to establish proper service when disputed. Improper service of summons, particularly where it is served at an address that is not the party's actual location, can constitute good and sufficient cause for rescission of a default judgment and warrants a stay of execution pending determination of the rescission application. A party cannot be said to be in willful default when it had no actual notice of proceedings due to service at an incorrect address.

The court made reference to the case of Croco Properties v Swift HH-20-13 as authority for the proposition that a Sheriff's report must provide sufficient detail to assist the court in deciding key issues relating to service. The court also noted that the Deputy Sheriff's denial in his report of what appeared on his own return of service was troubling and 'boggles the mind'. While not necessary for the decision, the court noted the applicant's arguments on the merits of the underlying claim regarding voluntary assumption of risk for the fire burns and the first respondent's responsibility as mine manager for procuring safety equipment, though these were not fully determined as they related to the rescission application rather than the stay application.

This case is significant in Zimbabwean civil procedure law as it reinforces the duty of Sheriffs to provide precise and detailed information when effecting service of process, particularly when such service is challenged. The judgment emphasizes that where service is disputed, a Sheriff's return must contain sufficient detail about the physical location, what was observed at the premises, and the basis for believing that service was effected at the correct address. It demonstrates the court's protective approach toward parties who may not have had actual notice of proceedings due to defective service, and confirms that such defects can constitute good and sufficient cause for rescission of default judgments. The case also illustrates the proper application of the principles governing urgent applications for stay of execution pending rescission applications.