Tshepo Properties (Pvt) Limited v Felix Sengudzwa and Others

The applicant, Tshepo Properties (Pvt) Limited, acquired title to Stand 3704, Lot J, Borrowdale Estate in June 2010. In 2020, the applicant discovered that the first respondent was occupying the property without authorization. The applicant initiated eviction proceedings in the Magistrates' Court, obtaining a default judgment on 21 November 2022. The first respondent filed a rescission application, during which the applicant discovered that a Deed of Transfer existed in favor of the first and second respondents for the same property. The first and second respondents claimed they obtained the stand in 2011 from the third respondent and had developed it into a home. The applicant allegedly failed to inspect or develop the property for over ten years (2010-2020), during which time the respondents constructed a structure on the land. The applicant sought a declaratory order confirming its ownership of the disputed stand.

• Whether there was a valid founding affidavit before the court in the absence of a proper commissioner of oaths stamp
• Whether service of court papers on a minor child aged twelve years constitutes improper service under Rule 15(13)(b) of the High Court Rules 2021
• Whether the court has jurisdiction over the respondents in the absence of proper service

The application was struck off the roll with costs.

Service of court process on a child below the age of sixteen years constitutes improper service under Rule 15(13)(b) of the High Court Rules 2021. Proper service is a jurisdictional prerequisite for a matter to be properly before the court. Where there has been no proper service in accordance with the rules, the court lacks jurisdiction over the respondents, rendering the application fatally defective and liable to be struck off the roll with costs.

The court made observations on the substantive dispute regarding the competing property claims, noting the first respondent's arguments about the applicant's ten-year abandonment of the property, the development undertaken by the respondents, and potential issues of estoppel. The court cited the Prosecutor General v Makarichi case regarding the proper requirements for commissioner of oaths stamps and affidavits, providing guidance on what constitutes a properly commissioned affidavit. However, these substantive issues were not decided as the matter was disposed of on the procedural point of improper service. The court also implicitly recognized the flexibility to accept reasonable explanations for technical defects in document filing, such as scanning issues, when these are rectified promptly and do not prejudice the opposing party.

This case reinforces the strict application of procedural requirements regarding service of process in Zimbabwean civil procedure. It confirms that service on a minor below the age of sixteen years is improper and constitutes a jurisdictional defect that warrants striking the matter off the roll. The case emphasizes that proper service is not merely a procedural formality but a jurisdictional prerequisite without which the court cannot properly exercise its authority over the respondents. The judgment also addresses modern practical issues regarding scanning and filing of court documents, showing judicial flexibility in accepting technical explanations for apparent defects in documentation while maintaining strict adherence to fundamental procedural requirements.