Tendai Bonde v National Foods Limited (2) Sheriff of High Court N.O.

### Preamble
Judgment No. SC 72/25
1
Chamber Application No. SCB 88/25
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REPORTABLE	(72)

TENDAI     BONDE

v

NATIONAL     FOODS     LIMITED    (2)     SHERIFF     OF     HIGH     COURT N.O.

SUPREME COURT OF ZIMBABWE

HARARE: 1 & 17 JULY 2025

The applicant in person

Ms V. Chagonda, for the first respondent

No appearance for the second respondent

IN CHAMBERS

MAVANGIRA JA:

This is a matter in which I struck the applicant’s application off the roll with costs on                        17 July, 2025.  I pronounced my reasons therefor.  Written reasons have now been requested.  They follow hereunder.

On 26 June, 2025, the applicant filed an urgent chamber application which was set down for hearing on 1 July 2025.  At the onset of proceedings, Ms Chagonda, for the first respondent, raised a preliminary point to the effect that the first respondent had not been served with the application, hence the non-filing of a notice of assumption of agency on her part or of a notice of opposition and opposing papers.  She submitted that such non-service ought to result either in the matter being postponed to enable the applicant to physically serve the first respondent with the application or in it being struck off the roll.

The applicant’s response was that he served both respondents by sending emails to both of them simultaneously.  Thereafter, he was alerted by the second respondent that his email had no attachment to it.  He thus, again, simultaneously sent emails to both respondents, to which he attached the urgent chamber application.  The second respondent responded to him that it was “well received”, which to him meant that the attachment in the form of a copy of the urgent chamber application had finally been received.  It was thus inconceivable to him that the first respondent did not receive the same papers that he had attached to the email sent simultaneously to the second respondent as well and which had been well received by the second respondent.

In view of the parties’ opposing positions, the court asked the parties what the proof of service filed by the applicant showed.  It turned out that on 30 June 2025, the applicant filed with the Registrar of this Court an affidavit of service in which he stated, inter alia, that:

“On 27th day of June 2025 at 0900 hrs I served chamber application for stay of execution pending appeal on first & second respondents electronically as fully appears on the pages herein attached.

I affirm that the manner of service is according to law.”

Attached to the affidavit is a copy of an email dated 26 June 2025 emanating from the applicant and addressed to the first respondent’s above named counsel and also to the second respondent.  It states:

“Subject:  APPEAL_signed.pdf

Kindly receive urgent chamber application served electronically to your respective        e mails”

There is no other page or attachment to the affidavit of service.

As to which rule governs the issue regarding proof of service, Ms Chagonda for the first respondent, pointed to rule r 14 (2) (d) of the Supreme Court Rules, 2025 (SI 47/2025).  The rule provides as follows:

“Service, e-filing and related matters.

14. (1) Subject to rule 18, any document required by these rules or by direction of the court or any judge to be served on any person shall be served as follows-

(2) Proof of service in terms of sub rule (1) shall be effected –

….

(d) where service is effected by electronic mail, by production of a copy of     the mail and the document so sent together with an affidavit from the sender that the document sent is the one to which the email relates;”

As to whether the proof of service that he had filed with the court was in accordance with the rules, the applicant’s position was that the manner in which he had served the application was the manner in which he had always done in many other matters.  He insisted that the proof of service that he filed complied with the rules, that it proved that the first respondent had been properly served and that the application must be dealt with as unopposed; the respondents not having filed any opposing papers.

Due to the parties’ diametrically opposed positions and particularly the applicant’s evident bewilderment and lack of appreciation of the requirements of the rules, the court asked the parties to file heads of argument “on the question whether the proof of service filed by the applicant complies with r 14 (2) (d) of the Supreme Court Rules, 2025.”  The matter could have been postponed to an earlier date but had to be postponed to 17 July 2025 as the applicant indicated that he was unavailable before then as he was otherwise occupied by earlier commitments.

Ms Chagonda filed her heads of argument on 2 July 2025 in accordance with her commitment.  The applicant indicated at the hearing of 1 July 2025 that he could only file his heads of argument on 14 July 2025.  However, on 7 July 2025, he filed what he termed an answering affidavit.  Before the end of the day on the same date he filed his heads of argument.  The answering affidavit was irregularly filed and the applicant conceded as much at the hearing of 17 July 2025.  He indicated that he was withdrawing it.  It was thus expunged from the record and no further regard was paid to it.

In his heads of argument, the applicant contends that the first respondent was properly served and he persists that the application stands unopposed and must therefore succeed.

A reading of r 14 (2) (d) of the Supreme Court Rules, 2025, shows that where service is effected by electronic mail, proof of service is established by production of the documents stated hereafter.  Firstly, a copy of the mail.  Secondly, the document so sent.  Thirdly and finally, an affidavit from the sender that the document sent is the one to which the email relates.  The proof of service filed by the applicant comprises a copy of the email and an affidavit but not the copy of the document sent to the respondents.  Should it be that he meant to attach it when he stated “as fully appears on the pages herein attached” the reality however, is that he attached a page and not pages and that a copy of the document purportedly sent with the email was not attached.

For completeness, I mention that in a curious twist, and almost as if scoring an own goal, as the proceedings were drawing to an end, the applicant contended that Ms Chagonda did not have the necessary authority to represent the first respondent.  After so contending, he was thereafter unable to deny that if that was the case, it followed that the first respondent had not been served at all as he had not made any effort to serve the respondent directly but had only sent email communication to the said Ms Chagonda whose authority he was now challenging. Clearly, the applicant could not thus be allowed to approbate and reprobate on the propriety of service on the first respondent.

In conclusion, in my view, the proof of service that the applicant relies on as proving that the first respondent was served with the urgent chamber application does not comply with the rules and therefore cannot be accepted as proof thereof.  The preliminary point raised by             Ms Chagonda is thus upheld.  The first respondent was not served with the application.  In the circumstances, the court disposed of the matter as reflected in para 1 of this judgment.

Calderwood, Bryce Hendrie & Partners, 1st respondent’s legal practitioners