The applicants were principals of Two Giants Mining Syndicate operating at reserve number 1731DB1 Tatagura Cluster Mbedzi Farm. The respondent, also a registered mining syndicate, obtained a spoliation order against the applicants in default on 16 November 2020 under HC6577/20. The applicants claimed they were not served with the urgent chamber application or notice of set down, and only became aware of the order when they were ejected from the mining site on 2 December 2020. A certificate of service showed service was effected on persons named "Taku" and "Boaz" at the mining location on 11 November 2020. The Sheriff's return of service for the notice of set down indicated service on "Boaz" on 13 November 2020. The applicants denied having employees by these names, and filed an affidavit from Takudzwa Muchemwa (whose name allegedly resembled "Taku") denying service. The applicants held a special grant certificate issued on 17 December 2019, while the respondent's certificate was issued on 13 August 2020.
The application was struck off the roll. The applicants were ordered to pay the respondent's costs of suit on the ordinary scale.
An alleged defective service does not constitute an error for purposes of Rule 449(1)(a) where the court properly relied on a certificate of service and Sheriff's return of service that were before it. A court can only make an error based on what appears before it at the time of granting judgment. Where service appears regular on the face of the documents before the court, and no additional evidence demonstrates fraud, collusion, or that the persons served did not exist, the proper remedy for challenging a default judgment is an application under Rule 63, not Rule 449(1)(a). Rule 449(1)(a) is reserved for errors apparent on the face of the record or circumstances where additional evidence clearly demonstrates the court was misled in a manner that would have changed its decision.
The court observed that accepting the applicants' argument would require courts to interview persons who effected service to verify proper service before granting orders, which would be impractical. The court also noted the coincidence that the Sheriff (an official of the court) served the notice of set down on the same person ("Boaz") who had been served with earlier documents, and observed that only collusion between the Sheriff and respondent could explain this if "Boaz" did not exist—for which there was no evidence. The court suggested that the applicants likely avoided Rule 63 because they knew their application would be out of time and would require condonation with an explanation for delay.
This case provides important guidance on the proper application of Rule 449(1)(a) versus Rule 63 of the High Court Rules, 1971 in Zimbabwean law. It clarifies the narrow circumstances under which a court will find that a judgment was "erroneously granted" for purposes of Rule 449(1)(a), particularly in relation to alleged defective service. The judgment emphasizes that courts can only act on errors apparent from the material before them, and that disputes about the adequacy or truthfulness of service (absent evidence of fraud or collusion) should be addressed through Rule 63 applications for rescission of default judgments, not Rule 449 applications. The case reinforces the importance of selecting the correct procedural remedy and the principle that parties cannot circumvent time limits and procedural requirements by choosing an inappropriate rule.