CROCO PROPERTIES (PVT) LTD v SWIFT DEBT COLLECTORS (PVT) LTD 2013 (2) ZLR 79 (H)

Flynote

Practice and procedure — process — service — proof of — return of service prima facie evidence of matters stated therein — return of service challenged — need for deputy sheriff to assist court to determine truthfulness of return

Headnote

In an application for rescission of a default judgment, the applicant averred that it was not in wilful default because it had not been served with the summons initiating the action and so had no knowledge of the claim. According to the deputy sheriff's return of service, the summons was served on a named receptionist who accepted service on behalf of the applicant at the latter's place of business. Apart from the affidavit of a director of the applicant that the company had no employee by the name mentioned in the return, an affidavit from the company's receptionist was submitted. She stated that she was at the reception desk on the date of alleged service but was never served with the summons or any court process. In answer, an affidavit from the assistant deputy sheriff repeated, almost word for word, the impugned return of service.

Held, that while in terms of s 20(3) of the High Court Act [Chapter 7:06], the deputy sheriff's return of service is prima facie evidence of the matters stated therein, once the return has been challenged, the deputy sheriff must do more than just refer to the return. He must assist the court to determine the truthfulness of the return of service. His explanation was unhelpful as it merely repeated what was in the return of service. After the return of service was impugned, the erstwhile assistant needed to do more than that. For instance, more details of the location of the applicant's address, the appearance of the reception where the summons was served and a description of the recipient would have enhanced his credibility. A Rescission would therefore be granted.