Tendai Bonde v National Foods Limited & Another

The applicant filed an urgent chamber application on 26 June 2025, set down for hearing on 1 July 2025. The applicant attempted to serve both respondents by email, sending emails simultaneously to both respondents. The second respondent alerted the applicant that the first email had no attachment, after which the applicant sent a second email with the urgent chamber application attached. The second respondent confirmed receipt stating it was "well received", but the first respondent's counsel raised a preliminary objection that the first respondent had not been properly served. The applicant filed an affidavit of service on 30 June 2025 attaching only a copy of the email dated 26 June 2025, but did not attach a copy of the actual document sent. At the hearing, the court directed parties to file heads of argument on whether the proof of service complied with rule 14(2)(d) of the Supreme Court Rules, 2025. The applicant also irregularly filed an answering affidavit which he later withdrew.

• Whether the proof of service filed by the applicant complied with rule 14(2)(d) of the Supreme Court Rules, 2025
• Whether service by electronic mail had been properly effected on the first respondent
• What constitutes proper proof of service when service is effected by electronic mail

The application was struck off the roll with costs on 17 July 2025. The preliminary point raised by the first respondent was upheld. The court found that the first respondent was not served with the application.

For proof of service by electronic mail to be valid under rule 14(2)(d) of the Supreme Court Rules, 2025, all three requirements must be satisfied: (1) production of a copy of the email; (2) production of the document actually sent; and (3) an affidavit from the sender confirming that the document sent is the one to which the email relates. Failure to produce the actual document sent renders the proof of service non-compliant with the rules and therefore cannot be accepted as proof of service. A party cannot approbate and reprobate on the same issue - if a party challenges the authority of counsel to represent a respondent, that party cannot simultaneously rely on service effected through that same counsel.

The court noted that the applicant stated he had always served documents in the same manner in many other matters, suggesting a lack of understanding of the requirements of the rules. The court also observed that the applicant filed an answering affidavit irregularly, which he later withdrew and which was expunged from the record. The court commented on the applicant's "evident bewilderment and lack of appreciation of the requirements of the rules." The court also made a curious observation about the applicant "scoring an own goal" by challenging Ms Chagonda's authority to represent the first respondent after having relied on service to her email address.

This case clarifies the strict requirements for proof of service by electronic mail under the Supreme Court Rules, 2025 (SI 47/2025) in Zimbabwe. It establishes that all three elements prescribed in rule 14(2)(d) must be satisfied: production of a copy of the email, the actual document sent, and an affidavit confirming the document sent corresponds to the email. The judgment emphasizes the importance of strict compliance with procedural rules regarding service of process and demonstrates that failure to attach the actual document sent will render proof of service defective. It also illustrates the principle that a party cannot approbate and reprobate regarding the same issue.