George Neophytos Demetriou and Demetrios Demetriou and Evangelia Komatina v Sipho Phugeni and The Messenger of Court of Zimbabwe

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HB 130/25
HCBC 915/24
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GEORGE NEOPHYTOS DEMETRIOU

And

DEMETRIOS DEMETRIOU

And

EVANGELIA KOMATINA

Versus

STPHO PHUGENI

And

THE MESSENGER OF COURT OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 23 JULY 2025

Court application for a declaratory and consequential relief in terms of Rule 59 (1) of the High Court Rules, 2021 as read with section 14 of the High Court act [Chapter 7:06]

Mr Petica for the applicants

Mr S Nkomo with Mr M Ngwenya for the first respondent

NDUNA J: 	The applicants filed this application for an order in the following terms: -

The whole proceedings at the Magistrates Court under case number CC2062/21 is declared null and void and is ultra vires the Magistrates Court Act [Chapter 7:10]

The Writ of Execution against immovable property issued on the 11th of March 2024 by the Clerk of Court in case number CC2O62/21 was issued ultra vires the Magistrates Court Act [Chapter 7:10] and is ipso facto declared null and void.

The purported sale of Applicants property namely a certain piece of land in extent 2295 square metres being stand 8576 Bulawayo Township of Bulawayo Township Lands situate in the District Bulawayo held by the Applicants under Deed of Transfer Number 35O1/2OO2 must be impugned and the writ of execution is irregular and therefore set aside.

The Respondents be and are hereby interdicted from purporting to use the impugned writ under case number CC2062/21 to dispose of the Applicants property.

The 3rd Respondent shall forthwith cancel the XN Caveat 12/24 placed on the Applicants' title Deed 350L/2O02 by virtue of the impugned writ of execution.

The 1st Respondent shall pay the costs of suit at an attorney Client Scale.

What had happened was that Sipho Phugeni had proceeded in terms of the Magistrates Court Act [Chapter 7:10] and had obtained an order against the respondents for the payment of certain sums of sum in the following terms: -

Payment by the defendants to the plaintiff of the sum of Sterling 15 000 pounds being the refund of the part purchase price paid by the plaintiff pursuant to an agreement entered into on the 29th of November 2017

Interest on the said sum calculated from the date of summons to the date of full and final payment

Costs of suit on an attorney – client scale

It is important to state that the order was a default order.

The applicants herein then proceeded for an order stated above when the applicant had made attachment proceedings. However, at the hearing of the matter, the applicant raised a point in limine to the said claim. Mr Petica raised his preliminary point in the following terms: -

I want to raise a preliminary point which can actually dispose of this matter. That is what did the first respondent do to found or confirm jurisdiction since the applicants or first respondent carry on business and are not resident in Zimbabwe. In other words what did the first respondent do to comply with section 13 of the Magistrates Court Act to found jurisdiction since the parties were out of the country. The reason why this is so because the Magistrate Court Act states that the court shall have jurisdiction in respect of persons who resides or carry on business or is employed within the province. That is the point in limine. The applicants were not even aware of the default judgment. That is why section 13 of the Magistrates Court Act exists so as to found or confirm jurisdiction.

In his response the defendant is basically arguing that the applicants must approach the court of the Magistrate and prays for an order rescinding the default judgment. He therefore holds the position that the approach to this court in the circumstances is improper and unlawful.

Basically, the question here is whether the Magistrates Court had jurisdiction to act in the manner it did. If the magistrates court had jurisdiction, then it is proper that the applicant should have proceeded there at and made its application there. But when the magistrates court had no jurisdiction as it were then it was proper for the applicant to have approached this court in the manner it did.

The respondents in this matter are outside the jurisdiction of the Magistrates Court. The agreement to sell the house was done outside the jurisdiction of this court. Therefore, there is nothing in the matter which expressly makes it a local case. In Mkhize v Swemmor and Others 1967 (1) SA 186 where it was stated at 197C-D that,

“judicial decisions will ordinarily stand until set aside by way of appeal or review, but to that rule there are exceptions, one of them being that, where a decision is given without jurisdiction, it may be disregarded without the necessity of a formal order setting it aside.”

See also a Zimbabwe case Manning v Manning 1986(2) ZLR I at 3D-F where a village court acted without jurisdiction.

Therefore, clearly the magistrates court had no jurisdiction to have entertained the matter and should not have done so had all the facts been placed adequately before it. The respondent argues that the applicants should have approached the magistrates court and request it to set aside its judgment. The question that an unlawful order has been made by that court empowers this court to entertain the case. You cannot hold a case involving foreign based parties without fully complying with the service of process upon them. It is illegal to have done so and the application must be successful.

It is accordingly ordered as follows: -

1.	The whole proceedings at the Magistrates Court under case number CC2062/21 is declared null and void and is ultra vires the Magistrates Court Act [Chapter 7:10]

2.	The Writ of Execution against immovable property issued on the 11th of March 2024 by the Clerk of Court in case number CC2O62/21 was issued ultra vires the Magistrates Court Act [Chapter 7:10] and is ipso facto declared null and void.

3.	The purported sale of Applicants property namely a certain piece of land in extent 2295 square metres being stand 8576 Bulawayo Township of Bulawayo Township Lands situate in the District Bulawayo held by the Applicants under Deed of Transfer Number 35O1/2OO2 must be impugned and the writ of execution is irregular and therefore set aside.

4.	The Respondents be and are hereby interdicted from purporting to use the impugned writ under case number CC2062/21 to dispose of the Applicants property.

5.	The 3rd Respondent shall forthwith cancel the XN Caveat 12/24 placed on the Applicants' title Deed 350L/2O02 by virtue of the impugned writ of execution.

6.	The 1st Respondent shall pay the costs of suit at an attorney Client Scale.

Nkomo and Sibanda Legal Practitioners, applicants’ legal practitioners

M.R. Petkar Law Firm, respondent’s legal practitioners