Zimbabwe Construction and Development Company and Edmund Campion Takawira Shonhiwa v LLLG Contractors and Engineering Private Limited

The plaintiffs instituted civil proceedings against the defendant. A notice of set down was served upon the defendant at its physical address at No. 2 Ramvilla Court, 3rd Avenue and Fort Street Bulawayo. This occurred despite Messrs Sengweni Legal Practice having assumed agency on behalf of the defendant on 5 October 2016, the same day the defendant's previous legal practitioners (Lunga, Gonese Attorneys) had renounced agency. When the matter came up for hearing on 23 May 2017, Mr Sengweni appeared on behalf of the defendant and sought a postponement on the ground that he had taken over the matter from a colleague who was in South Africa and had been unaware of the court date. He also indicated he needed to contact his client who was not in court. The court granted the postponement to 1 June 2017. On 1 June 2017, Mr Sengweni again appeared without the defendant, claiming he had failed to contact the defendant by telephone despite having both South African and Zimbabwean numbers. He sought removal of the matter from the roll on grounds that the defendant was not properly served, although he acknowledged being aware of the court date and that service had been effected at the defendant's physical address.

• Whether service of the notice of set down at the defendant's physical address constituted proper service
• Whether the defendant's failure to appear at trial after proper service warranted the grant of default judgment
• Whether the matter should be removed from the roll on grounds of improper service

1. Judgment entered in favour of the plaintiffs against the defendant for payment of $8,392.00; 2. Interest on that amount at the prescribed rate of 5% per annum from 3 December 2015 to date of payment; 3. Costs of suit on an ordinary scale.

Where a notice of set down is served at a defendant's known physical address and the defendant's legal representative appears in court with knowledge of the hearing date, this constitutes proper service. A defendant cannot successfully argue improper service when its own legal representative is present in court and aware of the proceedings. When proper service has been effected and a party deliberately fails to attend court, default judgment may be granted against that party. The deliberate avoidance of court proceedings after proper service justifies the grant of default judgment.

The court observed that the defendant's conduct amounted to deliberately avoiding court, noting that "everything humanly possible has been done to bring the defendant to court but it has stayed away." The court characterized the defendant's application to remove the matter from the roll as "totally preposterous" given the circumstances. The court noted that Mr Sengweni, despite representing the defendant and being aware of the alleged change of address, was surprisingly unaware of any new address at which the defendant could be served, which undermined the credibility of the improper service argument.

This case reinforces the principles governing service of process and default judgment in Zimbabwean civil procedure. It demonstrates that where service is effected at a party's known physical address and the party's legal representative is aware of the court date and appears in court, such service will be considered proper and sufficient. The case also illustrates the court's approach to dealing with parties who deliberately avoid court proceedings despite proper notice, and confirms that default judgment is an appropriate remedy in such circumstances. The judgment emphasizes that a legal representative's presence in court, with knowledge of the hearing date, undermines any argument that the client was not properly notified.