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1. WHAT ARE THE REQUIREMENTS FOR SUBSTITUTED SERVICE

1.1. An application for substituted service is a ‘departure’ from the service of any process
or document in terms of the High Court Rules, 2021 to serve process in another way.
See Peters v Peters HH 453-18

1.2. In terms of Rule 15 Sub-Rule 1 of the High Court Rules, 2021 ‘process’ refers to any
document that is required to be served on any person in terms of the rules.
Therefore, any service of court process should be effected in terms of the High Court
Rules, 2021. Once service of process is defective then the process is of no force or
effect. See Featherstonehaugh v Suttie 1913 TPS 171; Van Nekerk v Barket 1922
OPD 164

1.3. Rule 19 of the High Court Rules, 2021 which regulates the issue of substituted
service in the High Court is reserved for persons who are within the jurisdiction of
the court, who cannot be served by ordinary means prescribed in Rule 15 of the
High Court Rules, 2021. See Munyikwa v Jiri HH 338-15

1.3.1. Put differently, an application for substituted service is made where an applicant has
no knowledge of the whereabouts of a Defendant, it is common in divorce cases. See
Khumalo v Khumalo HB 97-17

1.4. An application for substituted is made in the form of a Chamber Application. In an

application for substituted service, the applicant must set out the nature and the
extent of the claim and the grounds upon which it is based, the reason why service
cannot be effected in any of the ways provided in Rule 15 of the High Court Rules,
2021 and include in the Founding Affidavit, sufficient relevant facts to indicate the
best manner in which service may be effected, for instance in terms of a notice in a
 local newspaper circulating daily in Zimbabwe. Such an application, should be
accompanied by a draft of the process or the document to be issued. Rule 19 Sub-
Rule 2 of the High Court Rules, 2021.
1.5. In terms of Rule 19 Sub-Rule 3 of the High Court Rules, 2021 a judge has a discretion
to give directions which he or she deems proper and necessary, having due regard to
the place where a Defendant is or is believed to be residing and to the other
circumstances of the case. See Peters v Peterssupra.

1.6. Furthermore, in all cases in which publication is directed, it is not necessary to

publish the document(s) in an extensive form, as such publication can be made in a
short form approved and signed by the Registrar of the High Court. See Rule 19 Sub-
Rule 4 of the High Court Rules, 2021.

1.7. Finally, the process or document to be served, should be served in the manner and
subject to any conditions as a judge in each particular case directs. See Rule 19 Sub-
Rule 5 of the High Court Rules, 2021.

2. HOW DO YOU SERVICE SUMMONS OR APPLICATION IN THE REPUBLIC OF SOUTH

AFRICA, NAMIBIA, LESOTHO, SWAZILAND OR BOTSWANA?

2.1. In order to have cause a summons or an application to be issued in Botswana,

Eswatini (formerly known as Swaziland), Lesotho, Namibia or South Africa, an
applicant is required to file an application for leave to effect service of a summons or
application by way of a Chamber Application in terms of Rule 18 Sub-Rule 3 of the
High Court Rules, 2021.

2.2. Botswana, Eswatini, Lesotho, Namibia and South Africa are Roman-Dutch Law
jurisdictions. Rule 18 of the High Court Rules, 2021 deals with the service of
summons or applications on a reciprocal basis in the above countries. Thus, where it
is necessary to serve any process on any person in any province of the above
countries, leave of the court has to be obtained. See Westhood v Westhood 1997 (1)
ZLR 295 (H).
2.3. In an application for leave to effect service outside of Zimbabwe, the Chamber
Application should be accompanied by a draft of the summons or the application
proposed to be issued, and a sworn statement setting out concisely the matters
included in Rule 16 Sub-Rule 2 of the High Court Rules, 2021.

2.4. A judge has discretion to make such order as to the manner of service as to him or
her seems proper and necessary. See Rule 19 Sub-Rule 4 of the High Court Rules,
2021.

2.5. Where an application for leave to effect service outside of Zimbabwe has been
granted by the High Court, such service of the process will be effected by the Sheriff,
Deputy Sheriff or Under Sheriff of that province of country. See Rule 18 Sub-Rule 1
of the High Court Rules, 2021.

2.6. The service will be effected at a specified address, this also includes a chosen
domicilium citandi et executandi. See Pretoria Hypotheck Maastschappi v
Groenwald 1915 TPD 170; Stetsios & Others v Theophilopoulos 1974 (4) SA 645
(W).

2.7. Upon effecting service, the Sheriff, Deputy Sheriff or Under Sheriff of that province
or country, will sign a Return of Service and place an official seal to signify service.
The signature and seal of the Sheriff, Deputy Sheriff or Under Sheriff is regarded as
sufficient authentication of the service, and payment of necessary fees for the
service of the process in that province or country. See Rule 18 Sub-Rule 2 of the
High Court Rules, 2021.

Question 3

What is edictal citation and what are its requirements?

Answer
In the case of Westhood v Westhood 1997(1) ZLR 295 the court clearly set out the import of
and application of Rule 17, that is to say, edictal citationwhere it was held that if an address
of the defendant is not known, then service must be effected by way of a publication in a
newspaper circulating in that area. Held further in Munyikwa v Jiri HC 2296/11, the court
held further that “where a party as in the case of the respondent’s brother is the UK, and his
address is not known, then certainly the publication must be in a newspaper in the UK. It
cannot suffice as an argument that substituted service locally will suffice since as a result of
technology, local newspapers are available on line and can be accessed anywhere in the
world.” Put simply, edictal citation is ordered when a defendant is believed to be outside
Zimbabwe and the exact whereabouts of the defendant are unknown.

Rule 17(6) outlines that any person wishing to obtain leave to effect service outside
Zimbabwe of any document other than one through which proceedings are instituted, may
either make an application before a court or judge setting out concisely the following:

-the nature and extent of his or her claim.

-the grounds upon which the claim is based.

-the grounds upon which the court has jurisdiction to entertain the claim.

-the manner of service which the court or judge is asked to authorise

-if the manner of service be other than personal service, the last known whereabouts of the
person to be served and the inquiries made to ascertain his or her present whereabouts.

The court or judge may make such order as to the manner of service and the time frame to
file notice of intention to defend. If publication is directed, only a short form will be
published upon approval and signature by the registrar.

Question 4

Who and how is service effected against the State?

Answer
Rule 16 provides for the service of process in proceedings against the State This rule applies
to claims for money arising out of breach of a contract, delict or otherwise. It may be failure
on the delivery of or release of any goods. The claims may be instituted against the State or
the President or Vice President or Minister or Deputy Minister or any employee of the State
in his or her official capacity. In terms of section 5 of the State Liabilities Act, it is also
necessary to give a detailed notice to the State of claims not less than 60 days before
instituting proceedings. A copy of the notice shall be attached to the process to bring the
proceedings. Nevertheless, the process should be issued by the registrar at the seat of the
court where proceedings concerned are to be heard.

Question 5

How is the service of court process, summons, pleadings, judgements, writs of execution
served on the other party?

Answer

In terms of the High Court Rules, rule 15(4) service of a summons ,all notices of set
down,writ,warrant or court orders hall be effected by the sheriff,

The import of this rule is a peremptory stipulation that the proper and due service of such
documents in when they are served by a sheriff and not by one party to another. Any direct
service by one party to the other will constitute an invalid service except where authority
has been granted by a judge for the other party to serve directly in relation to a notice of set
down or a court order

Rule 15(6) of the High Court Rules, stipulates the procedure for service and states that the
party wishing to serve the particular process shall deliver to the sheriff a copy of the
document and enough copies for the party or parties to be served.

The time for service of court process shall be restricted to the hours between 7am and 9pm
on any day which is not a Sunday except for process for the arrest of any person and process
served by post telegraph, facsimile, email or courier which shall be validly served at any
time.
Rule 15(12) provides that processes in relation to a claim for an order affecting the liberty
of a person or his status shall be served by delivery of a copy thereof to that person
personally.

Question 6

Who is empowered to serve court processes?

The sheriff is empowered to serve court process with the exception of circumstances where
the court or a judge may, in deserving cases authorise service of a notice of set down or
court order to be effected by a party or his or her representatives. R15 (4)

The sheriff or the party concerned or his legal practitioner or his agent may effect the
service of any process other than a summons, notice of set down, writ, warrant or order of
court. R15 (5)

Question 7

How service is generally effected of court process and judgements

In terms of Rule 15(13) of the High Court Rules notwithstanding the specific exceptions
stipulated under sub rule (4) service of any process may generally be effected through

a) Delivering a copy directly to a party or via their designated agent or legal

representative of choice.
b) By delivering to an apparent responsible authority I at the place of residence or
business or employment of the person to be served. Such person should be above
the age of 16.
c) Delivering a copy to an agent who is authorised in writing to accept service on behalf
of the person upon whom service is to be effected.
d) Where the party to be served has chosen an address to be served for legal purposes
service can be effected by leaving a copy at that address.
e) In the case of a body corporate (juristic person) service can be effected by delivering
a copy to responsible employee at its registered office or its principal place of
business within the court’s jurisdiction. Where employees refuse to accept such
service, service may be effected by affixing a copy to the main door at such office or
place of business. Service may also be effected by direct delivery of a copy to the
director or secretary or public officer of the juristic person.
f) If service it to be effected upon a local authority or statutory body a copy shall be
delivered to the town clerk or mayor of such local authority.
g) Where two or three persons are sued in their joint capacity as trustees, liquidators,
executors, administrators, curators or guardians service shall be effected upon each
of them except for married couples who are not under judicial separation.
h) Where the person to be served with any process initiating proceedings is already
represented by a legal practitioner of record such process may be served upon such
legal practitioner by the party initiating proceedings.
i) Any process except a process in relation to a claim for an order affecting the liberty
of a person or his or her status may be served by registered post or electronic mail
upon the registrar’s approval.
j) Where the party to be served is domiciled outside Zimbabwe service shall be
effected by edictal citation in terms of Rule 17 of the High Court Rules 2021.
k) In terms of rule 19 of the High COURT RULES 2021 in certain circumstances service
may be effected by substituted service.
Question 8

When service is generally effected of court processes and judgements?

Service of process shall be effected as near as possible between 07OO hrs and 210o hrs on
any day which is not a Sunday except for the arrest of any person and process served by
post ,telegraph, facsimile, email, or courier which shall be validly served at any time. R 15(7)

Service is also effected within the time limits provided for by the court at the different
stages of the matter in question.
PROGRAM : CIVIL PROCEDURE

LECTURER : MR MATSIKIDZE

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