Woolchart Properties (Pvt) Ltd and Woolbula Properties (Pvt) Ltd v Idem Trading (Pvt) Ltd t/a Eurotex and The Deputy Sheriff Harare N.O

The first respondent issued summons against the applicants under HC 6363/11 in July 2011 for payment of US$5,000,000.00. The summons were served by the second respondent at 27 Watts Road, New Ardbennie, Harare on a receptionist called Vanessa Petro of Glens Removals. The applicants did not enter an appearance to defend the action, and consequently the first respondent obtained a default judgment. The first respondent then caused a writ of execution to be issued. When the second respondent attended at 27 Watts Road to effect execution, it was discovered that the property was owned by Quest Motor Corporation, not either of the applicants. The applicants became aware of the writ and filed an urgent chamber application for interim relief staying execution pending determination of an application for rescission of judgment. The applicants contended that they were never aware of the summons until they were alerted to the writ of execution, and that 27 Watts Road was neither their registered office nor their place of business.

• Whether there was proper service of summons on the applicants in accordance with Order 5 Rule 39(2)(d)
• Whether the applicants were entitled to interim relief staying execution pending determination of their application for rescission of judgment
• Whether the applicants' prospects of success in their application for rescission were sufficient to warrant the granting of interim relief

Interim relief was granted as prayed for in the provisional order by the applicants, staying execution of the writ pending determination of the application for rescission of judgment. There was no order as to costs.

Service of process on a body corporate must comply strictly with Order 5 Rule 39(2)(d). Service by delivery to a receptionist at premises that are neither the registered office nor the place of business of the body corporate, where the receptionist is not a director, secretary, or public officer of the corporate entity, does not constitute proper service of process. Where there has been no proper service of process, the party against whom default judgment has been entered cannot be said to be in wilful default, and has good prospects of success in an application for rescission of judgment, warranting the granting of interim relief staying execution pending determination of the rescission application.

The court noted that the balance of convenience favoured the grant of interim relief because failure to grant such relief would imperil the rights of Quest Motor Corporation, a third party who was not party to the proceedings but owned the property against which execution was being sought. This observation underscores the court's concern for protecting the rights of innocent third parties in execution proceedings. The court also implicitly observed that the first respondent's conduct in seeking to execute against property at the same address where defective service had occurred raised questions about the propriety of the execution proceedings.

This case is significant as it reinforces the strict requirements for proper service of process on corporate entities. It establishes that service on a receptionist at premises that are neither the registered office nor the place of business of a body corporate does not constitute valid service under the applicable procedural rules. The judgment emphasizes the importance of compliance with procedural requirements in civil litigation and protects parties from default judgments where there has been no proper notice of proceedings. It also demonstrates the court's willingness to protect third-party rights where execution is sought against property owned by non-parties to the dispute.