Amanda Gayle Peters v Macdonald Peters

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                                                                                 HH 453-18
                                                                                HC 6748/18
                                                                            Ref HC 6288/18


AMANDA GAYLE PETERS
versus
MACDONALD PETERS



HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 2 August 2018



CHAMBER APPLICATION - for substituted service


S Kachere, for the plaintiff


       CHIRAWU-MUGOMBA J: Over the years, this court has been inundated with
applications for substituted service in matrimonial matters. In most instances, the plaintiff
will claim that the whereabouts of the defendant are unknown and they thus seek an order to
resort to other means of service of process. The most popular means is publication in a
newspaper circulating within Zimbabwe.
            In this case, the plaintiff issued summons against the defendant on 6 July 2018
seeking:
   a. A decree of divorce
   b. Custody of the minor children and access by the defendant.
   c. That each party bears its own costs
       Service was attempted by the Sheriff at the last known address and the return of
service was endorsed as follows:- ‘Attempted service. The defendant no longer stays at the
given address’.
       On that basis, the plaintiff approached the court seeking an order for substituted
service as follows;-
a. Leave be and is hereby granted to the applicant (plaintiff) to serve summons and any
   other documents on the respondent (defendant) by way of a publication of the notices in
   an issue of the “Herald” newspaper.
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                                                                                         HC 6748/18
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b. Upon failure to respond to the summons, applicant (plaintiff) shall apply for the divorce
   to proceed on unopposed roll (sic) without further notice to respondent (defendant).
Substituted service is provided in terms of Order 46 of the Rules of the High Court as
follows:-
       “46. Substituted service
       (1) Whenever it is necessary to serve any process or document whereby proceedings are
       instituted, on any person within the jurisdiction who cannot be served in any of the
       ways provided in Order 5, the leave of a judge shall be obtained by application made in
       terms of Order 32.

       (2) Such application shall be accompanied by a draft of the process or document proposed to
       be issued and shall set out concisely-

       (a) the facts upon which the cause of action is based;

       (b) the reason why service cannot be effected in any of the ways provided in Order 5;-

       (c) sufficient relevant facts to indicate the best manner in which service may be   affected

       (4) In all cases in which publication is directed, it shall not be necessary to publish the
       document or documents in extenso but the publication of a short form thereof to be
       approved and signed by the registrar shall be deemed to be sufficient compliance with   the
       direction of the judge.”

       Some legal practitioners pay little regard to these requirements and wrongly believe
that an application for substituted service is there for the asking. A matrimonial matter affects
status and that is why it is a legal requirement that such summons and declaration be served
personally. In terms of R272 (1) (a) if the declaration has not been served with the summons,
a plaintiff shall serve the declaration and either simultaneously or subsequently a notice in
accordance with Form No. 30 calling upon the defendant if s/he wishes to defend, to purge
his failure to enter appearance and to plead, answer or except or make a claim in
reconvention within 12 days of the delivery of the notice and informing her or him that in
default thereof judgement will be prayed against her/him.
       Rule 272(1) (b) requires that if the declaration has been served with the summons, the
plaintiff wishing to obtain judgement shall file and deliver the notice after the expiry of the
dies induciae. These notices must also be served personally on the defendant. Even if the
defendant does not enter appearance to defend, R272 (2) (b) requires that notice of set down
for trial be served personally on the defendant and the court shall not proceed to hear the
matter in the absence of proof of personal service. If the defendant enters appearance to
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                                                                                       HH 453-18
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defend and the parties subsequently enter into a consent paper, the defendant must still
depose to an affidavit of waiver which essentially means that she or he waives their right to
be served with a notice of set down.
         An application for substituted service essentially is a departure from these
requirements as it seeks to serve process in another manner. Process is defined in Order 5
Rule 35 as, ‘any document which is required to be served on any person in terms of these
rules’. Given the fact that in the main matter, the plaintiff seeks a decree of divorce, there is
need for caution lest litigants literally ‘snatch judgment’ which not only includes the divorce
but also ancillary relief such as custody and sharing of property. In Khumalo v Khumalo1,
MATHONSI J stated as follows;-

         “In fact this court has, in recent history been inundated with such cases where Zimbabweans
         in the diaspora abuse the procedure for substituted service by claiming they have no
         knowledge of the whereabouts of their spouses in order to avoid service of summons and to
         obtain quick divorces fraudulently. It is despicable”.
         In that case, a litigant well knowing that his wife was resident in the United Kingdom
was granted an order for substituted service. This was after he came back to Zimbabwe from
the United Kingdom on many of his frequent trips and hastily sought and was granted an
order allowing him to serve process by publication in the Chronicle newspaper. He claimed
in his affidavit that he was not aware of the defendant’s whereabouts. Service had been
attempted twice at the address he had supplied as the defendant’s last known address and yet
he knew for a fact that the defendant was thousands of miles away in the UK. He proceeded
with haste and obtained an order for a decree of divorce which included custody of a minor
child. The mother of the child was shocked upon return to Zimbabwe to note that not only
was she a divorcee but that custody of the then three year old had been ‘awarded’ to her ex-
husband. Courts are not as has often been said equipped with crystal balls. This is the reason
why in recent times, in applications for substituted service where there is doubt on the
authenticity of the plaintiff’s claims that the defendant cannot be located, some judges are
directing as an additional layer of protection, that there be a clause in the draft order that
service of all process should be effected on a nearest relative of the defendant whose name
and address will have been supplied by the plaintiff. This is well within the discretion
provided for in Rule 46(3) that, ‘ On such application a judge shall, by his order, give such

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    HB-97-17
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                                                                                     HH 453-18
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directions in the premises as he deems proper and necessary, having due regard to the place
where the defendant is or is believed to be residing and to the other circumstances of the
case. This has yielded some positive results as indeed some supposedly ‘missing’ defendants
have entered appearance to defend.
            The gravity of fraudulent processes in matrimonial matters was exposed in Vela v
Magolis 2. In that case, a certain woman masqueraded as the plaintiff and together with the
supposed defendant visited a law firm indicating that they wanted a divorce and both had
agreed to the terms. After filling all the necessary papers, a decree of divorce and ancillary
relief was granted. The supposed plaintiff (now applicant) was shocked to learn that she had
been ‘divorced’ and yet she never gave instructions to any law firm. Subsequent
investigations unearthed many anomalies in the handling of the matter leading to be obtaining
of the order. It turned out that there were eight immovable properties not three as listed in the
fraudulent process. Seven of these properties were registered in the name of the respondent
(husband). There was no proof that some of these properties had been registered in the names
of the minor children as had been prayed for in the fraudulent order. The applicant had
petitioned the court in the United Kingdom for a decree of dissolution of the marriage some
three months after the fraudulent order had been obtained in Zimbabwe. She was not aware
that there had been an order already. MAWADZE J had occasion to comment in that case
that he had dealt with a chamber application for substituted service in which he recommended
an investigation as the applicant claimed not to have instituted any divorce proceedings. With
evidence of fraud and potential of fraud in such matters, I reiterate that applications for
substituted service in matrimonial cases are       not   granted as of right and courts must
scrutinise such with a fine tooth comb to avoid prejudicing the rights of innocent parties.
               Legal practitioners also need to be aware that the basis of the application for
substituted service is the summons and declaration. The plaintiff’s declaration in paragraph 3,
avers that, “The plaintiff is a citizen of Zimbabwe and she is domiciled in Zimbabwe hence in
terms of section 3 of the Matrimonial Causes Act [Chapter 5:13], this Honourable Court has
the requisite jurisdiction to entertain this matter. This averment is not in conformity with the
provisions of section 3 which reads as follows:-



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    2013(2)ZLR 611
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                                                                                            HH 453-18
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       “3 Additional jurisdiction
       (1) Without prejudice to any other basis of jurisdiction which the High Court has, the High
       Court shall have jurisdiction to entertain an action for divorce, judicial separation or nullity of
       marriage, where the wife is the plaintiff or applicant—
       (a) if the wife has been deserted by her husband and, immediately before the desertion, the
       husband was domiciled in Zimbabwe, notwithstanding that the husband has changed his
       domicile since the desertion; or
       (b) if the marriage was celebrated in Zimbabwe and the wife has resided in Zimbabwe for a
       period of at least two years immediately before the date of commencement of the action and
       is still so residing, notwithstanding that the husband has never been domiciled in Zimbabwe;
       or
       (c) if at the date of commencement of the action the wife is a citizen of Zimbabwe and,
       immediately before that date, she has been ordinarily resident in Zimbabwe for a period of not
       less than two years and is still so residing.”

       If reliance is to be placed on section 3, the declaration ought to mirror almost word for
word the relevant provision as outlined above and as applicable to the particular
circumstances of the litigant. The plaintiff’s declaration does not therefore establish
jurisdiction and is defective. An application for substituted service can only succeed if the
basis upon which it is made is legally sound. To borrow from the enduring words of Lord
DENNING in McFoy v United Africa Co. Ltd [1961] 3 ALL ER 1169 (PC) at 11721:

       “every proceedings which is founded on it is also bad and incurably bad. You cannot put
       something on nothing and expect it to stay there. It will collapse.”
       The plaintiff has not attached a shortened form of the summons or any other process
that is proposed to be published as required by the rules. In the draft order, there is reference
to “applicant” and “respondent” and yet in the heading it is plaintiff and defendant.
       It is also noted that the plaintiff in the summons and declaration seeks an order that
she be awarded custody and that the defendant has access to the minor children and yet she
states in her affidavit that she is not aware of the defendant’s whereabouts since 2013. The
lingering question is how she envisages that the defendant will exercise access when she has
not seen him since 2013. At the time that she issued summons, the plaintiff was well aware
that she had not seen defendant for that long a period. It is also inconceivable that if the
parties married in 2004 and separated in 2013, the plaintiff will have no knowledge of the
whereabouts of some of the defendant’s relatives.
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                                                                                   HH 453-18
                                                                                  HC 6748/18
                                                                              Ref HC 6288/18


       Legal practitioners must therefore exercise due diligence in applications for
substituted service. The Registrar of the High Court is directed to bring this judgement to the
attention of the Law Society of Zimbabwe for circulation to its members.



       In the result, it is ordered as follows:

   1. The matter be and is hereby struck off the roll with no order as to costs.




Kachere Legal Practitioners –appellant’s legal practitioners