VEHICLE DELIVERY SERVICES (ZIMBABWE) (PVT) LTD v GALAUN HOLDINGS LTD 2003 (2) ZLR 329 (H)

Flynote

c Conflict of laws ” foreign judgment ” enforcement of ” Zimbabwean defendant entering appearance to defend in foreign court ” service of process effected according to the lex fori ” foreign court having jurisdiction

Practice and procedure ” judgment ” foreign judgment ” enforcement of ” Zimbabwean defendant entering appearance to defend in foreign court ” must be taken to have consented to jurisdiction of that court ” not then necessary that summons be served in Zimbabwe in terms of the Civil Matters (Mutual Assistance) Act [Chapter 8:02] ” judgment enforceable in Zimbabwe under Act

Headnote

The respondent had obtained a civil judgment sounding in money against the applicant in the High Court of Zambia, for damages arising out of a vehicle accident that occurred in Zambia, and had obtained an order registering that judgment in Zimbabwe in terms of the Civil Matters (Mutual Assistance) Act [Chapter 8:02]. The applicant sought to set aside that order. It argued that the fact that the applicant entered an appearance to defend in Zambia was not sufficient on its own to confer jurisdiction on the Zambian High Court without an unequivocal consent by the applicant to the jurisdiction or an attachment of the applicant's property to found or confirm jurisdiction. The Act requires that any process issued by a foreign court be endorsed by a magistrate for service in terms of our law, if he is satisfied that such process was lawfully issued by that foreign court. Since the summons issued by the High Court of Zambia was not so endorsed by the magistrate for service or served in terms of s 13 of the Act, then such process was a nullity; and since the judgment was secured in terms of this nullity, there was no judgment to speak of.

Held, that s 13 is complementary to other methods available to parties for the service of foreign process. It does not preclude service in some other manner allowed by law. The fact that the respondent did not choose to adopt this available method of service of process was not fatal.

Held, further, that in matters of procedure the court applies the lex fori. The Zambian court had jurisdiction over the matter on the basis that the cause of action arose within its jurisdiction, so it was entitled to look to its own law of procedure with regard to service and, if it was satisfied that service was effected, to assume jurisdiction. Service was effected on the applicant and the applicant reacted by entering appearance to defend through its Zambian legal representatives.

Held, further, that to hold that correct service was effected would enhance the efficacy of the rules of court. It is in any case within the court's discretion to condone the failure to comply with a directory provision of the Act.

Application dismissed with costs.