Fabio Aponte v Antolini Luigi & C.S.P.A (2) Faenex Mining Zimbabwe (Private) Limited (3) Emmanuel Nyanyiwa (4) Rutendo Josephine Nyanyiwa

### Preamble
Judgment No. SC 89/25
Civil Appeal No. SC 552/24
1
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REPORTABLE   (89)

FABIO     APONTE

v

ANTOLINI     LUIGI     &     C.S.P.A     (2)     FAENEX    MINING     ZIMBABWE   (PRIVATE)   LIMITED     (3)     EMMANUEL     NYANYIWA     (4)     RUTENDO     JOSEPHINE     NYANYIWA

SUPREME COURT OF ZIMBABWE

MAVANGIRA JA, CHITAKUNYE JA & MUSAKWA JA

HARARE: 14 FEBRUARY 2025

T.W. Nyamakura, for the appellant

G. R. J. Sithole, for the first respondent

No appearance for the second, third and fourth respondents

CHITAKUNYE JA:		This is an appeal against the whole judgment of the High Court of Zimbabwe, (the court a quo) handed down on 9 September 2024 under case number HCH 2270/24, being judgment number HH 398-24.  In that judgment the court a quo dismissed the appellant’s application for condonation of late filing of an application for rescission of a default judgment and for the rescission of that default judgment.  The application for the rescission of the default judgment was made in terms of r 29 of the High Court Rules, 2021.  At the hearing an ex-tempore judgement, disposing the matter in terms of s 25 of the Supreme Court Act [Chapter 7:13], was issued.  On 14 July 2025 a request for the full reasons was made and these are they.

BACKGROUND FACTS

The appellant is an Italian citizen, currently resident and domiciled in Italy.  The first respondent is Antolini Luigi and C.S.P.A, a company duly incorporated in terms of the laws of Italy. The second respondent is FAENEX Mining Zimbabwe (Pvt) Ltd, a company duly incorporated in terms of the laws of Zimbabwe.  The third and fourth respondents are male and female adult persons, respectively.

The appellant and the third respondent were both at some point the directors of the second respondent.

It is common cause that sometime in 2005, the first respondent approached the appellant with the intention of investing in the purchasing of granite blocks from new quarries in Zimbabwe. With this in mind, the appellant entered into an agreement with the third respondent and incorporated the second respondent for the purpose of venturing into granite extraction.

In 2009, the first respondent entered into an agreement with the second respondent.  The terms of the agreement were, inter alia, that the second respondent would supply granite blocks to the first respondent.  As directors of the second respondent, the appellant and the third respondent signed the agreement on its behalf.

In the court a quo the appellant alleged, inter alia, that the second respondent faced numerous financial and economic challenges leading to the closure of the granite extraction venture and the termination of the agreement between the first and second respondents in 2010.  The appellant averred that with the closure of the venture in 2010, he resigned from being a director of the second respondent and relocated to Italy.  The fourth respondent replaced him as a director in the second respondent. He thereafter had no business dealings with the first respondent.

In February 2016, whilst in Italy, the appellant received a letter of demand dated 16 February 2016 from the first respondent’s legal practitioners in Italy.  In that letter, the first respondent was demanding that the appellant reimburses it a sum of Euro 100 836, 00 being monies advanced to him during the tenancy of their business agreement.  In response thereto, by letter dated 1 March 2016, the appellant denied owing the first respondent the sum demanded.  He did not receive further communication from the first respondent.

Thereafter on 8 April 2024 the appellant received a court order dated 18 July 2022 that had been granted against him in absentia under case number HC 8511/18 by registered post.  In the order, the first respondent had been granted a default judgment against him for the delivery of 1 020, 26 cubic meters of granite blocks or alternatively, payment of the sum of USD 446 322, 31 being the value of the said granite blocks.  He averred that upon making inquiries with the third respondent, he was, on 19 April 2024, furnished with the documents that had culminated in the default judgment being granted against him.  That was when he noted that the first respondent had purported to serve the court process upon him through edictal citation in South Africa by publication in a South African Newspaper called ‘The Citizen’ in November 2018.

The appellant further averred that though the default judgement had been granted in July 2022, he only became aware of it in April 2024.  Thereafter he promptly took action and filed the application in question.  He also averred that his application had prospects of success as the first respondent had, inter alia, fraudulently purported to serve him through edictal citation in South Africa when it knew that he now resided in Italy.

The first respondent opposed the application for condonation and for rescission of judgment in the court a quo.  It contended that the appellant, as director of the second respondent, had carried on the business recklessly and with an intention to defraud the first respondent.  The first respondent denied knowing that the appellant had relocated to Italy.  It contended that it relied on the address given by the appellant to the Registrar of Companies when he was still a director of the second respondent at its incorporation, which address was 33 Middle Road, Morningside, Sandton, Johannesburg, South Africa.  Further, the first respondent stated that not only was the appellant a former director of the second respondent but he was still a shareholder in the second respondent.   It also contended that the appellant ought to have approached the court by way of r 27 instead of r 29 of the High Court Rules, 2021.

In its determination the court a quo held, inter alia, that the appellant’s delay in instituting the applications was not inordinate as he had only become aware of the default judgment on 8 April 2024.  It held that a delay of two weeks was reasonable in the circumstances of the case.  The court a quo concluded that the appellant’s explanation for the delay in commencing the proceedings in the court a quo was reasonable considering that he had been in Italy when the order was granted against him.

On prospects of success the court a quo held that under r 29 (1) prospects of success must be in relation to the impugned order on the basis that it was erroneously granted whilst under r 27 (1), there must be prospects of success in the defence on the merits of the claim in the summons.  In the circumstances it held that the appellant had failed to show that he had prospects of success under r 29 (1) of the High Court Rules.  The court a quo reasoned that the default judgement was not erroneously granted as it had been granted after the service of summons through edictal citation and that the order for edictal citation was valid by virtue of the fact that it had not been set aside or varied.  In the circumstances, the court did not err when it granted a default judgment against the appellant.  In the absence of prospects of success, the court a quo dismissed the application for condonation with costs on a legal practitioner and client scale.

Aggrieved, the appellant appealed to this Court on five grounds of appeal to wit:

GROUNDS OF APPEAL

The High Court erred in finding that the order dated 18 July 2022 in HCH 8511/18 was procured by the first respondent in consequence of valid service of summons commencing action upon the appellant.

The High Court erred in failing to find as it should have, that the first respondent misled it by withholding the existence of the letter dated 16 February 2016 when it sought the order dated 3 September 2018 in HC 7538/18. In erring as it did, it permitted the first respondent to enjoy the proceeds of fraud perpetrated on the Court.

The court a quo seriously misdirected itself in fact in finding as it did or as it is taken to have done that the appellant did not address the prospects of success in the composite application for condonation and extension of time as well as the application for rescission when same were addressed in the composite founding affidavit.

A fortiori, once the appellant proved that the first respondent deliberately failed to disclose his correct residence for purposes of service in the case under HC 7538/18, which it knew, it followed that the prospects of success in the application for rescission were pleaded and proved.

Consequently, the court a quo erred in failing to find that the appellant was properly before it in accordance with rule 29 (1) of the High Court Rules, 2021 (Statutory Instrument 202 of 2021).

The relief sought was, inter alia, for the granting of condonation for late filing of the application for rescission, the rescission of the default judgment and granting the appellant leave to enter appearance to defend, file its plea or other answer to the summons and, thereafter, the matter to proceed in terms of the rules.

ISSUES FOR DETERMINATION

The ultimate relief sought in the court a quo and in this court was to enable the appellant to enter appearance to defend, file his plea or other answer to the summons and, thereafter, proceed in terms of the rules.  It is, however, clear that the genesis of the real issue relates to the order for edictal citation.  The fate of subsequent processes depended on the validity of that order. The court a quo avoided that issue and, instead, took the view that as that order was extant, the service of summons in terms of that order was valid despite the alleged irregularities.  It is, however, the court’s view that the irregularities afflicting the order for edictal citation cannot be ignored, lest deceitful conduct, if established, be rewarded. The invalidity of the originating process would make the relief sought incompetent. The irregularities noted would necessitate the invocation of the court’s review powers in terms of section 25 of the Supreme Court Act {chapter 7:13} in disposing of the matter.

It was from the above consideration that the court asked counsel for the parties to address the issue of the validity of the order for edictal citation and whether or not the court a quo erred in finding that the summons, served in terms of the order for edictal citation granted in HC 7538/18, was properly and validly served on the appellant under case number HC 8511/18.

The issue, as is evident from the pleadings, relates to the manner in which the first respondent purported to serve court processes on the appellant and its failure to disclose some material facts in obtaining the order for edictal citation.  The appellant alleged that the first respondent’s conduct was fraudulent in that, with the full knowledge of his current address in Italy, it approached the court a quo, feigning ignorance of the fact that the appellant was now in Italy and that it had effectively communicated with him in that country.

Mr Nyamakura, for the appellant, submitted that the failure by the first respondent to disclose the truth pertaining to the appellant’s whereabouts and the fact that it had in fact communicated with him in Italy was deceitful conduct meant to hoodwink the court a quo into issuing orders that were not deserved.  In this regard he referred to the letter of demand dated 16 February 2016 which the first respondent addressed to the appellant in Italy.  He also referred to the appellant’s reply to the letter of demand by letter dated 1 March 2016 confirming that the appellant was in Italy and was prepared to defend himself.  The appellant, in fact, dared the first respondent to proceed with the action which he would defend and raise a counter claim.

Counsel further submitted that after surreptitiously obtaining the default judgment the first respondent directed the court order to Italy and not to South Africa, again confirming that it knew where effective service could be effected as it was now seeking recognition and enforcement of the court order where it knew the appellant was resident.  Counsel also submitted that this was clearly a deliberate attempt by the first respondent to avoid serving the appellant.

Counsel thus argued that had the court that granted the order for edictal citation been aware of the two letters exchanged between the parties which confirmed the first respondent’s knowledge that the appellant was now resident in Italy, it would not have granted the order for service of process in South Africa by publication.  Equally had the court that granted the default judgment been alerted of the deceitful circumstances under which the order for edictal citation was obtained, it would have realised that there was no valid service of the court process and it could not have granted the default judgment.  The court orders having been obtained fraudulently were thus a nullity.

Per contra, Mr Sithole, for the first respondent, commenced his submissions by seeking to defend the court a quo’s decision and raising frivolous preliminary points.  His efforts in that regard were to no avail as he later conceded that the irregularities noted in the manner in which the first respondent sought and was granted the order for edictal citation and the eventual default judgment were indefensible.  As the irregularities starkly stared him in the face, he could only capitulate and concede that the process was tainted with irregularities and it could not stand. The irregularities included the fact that the first respondent had not been truthful in seeking an order for edictal citation and the default judgment.  The first respondent had deliberately and intentionally not disclosed material facts that went to the root of the validity of the orders he sought and obtained.  In the circumstances the concession was properly made.

APPLICATION OF THE LAW TO THE FACTS.

Rule 17 of the High Court Rules, 2021, on edictal citation, provides that:

Save by leave of the court in terms of this rule or as provided for in rule 18 or in any Act, no process or document whereby proceedings are instituted shall be served outside Zimbabwe.

Any person desiring to obtain leave shall make application to the court or a judge setting out concisely—

the nature and extent of his or her claim;

the grounds upon which the claim is based;

the grounds upon which the court has jurisdiction to entertain the claim;

the manner of service which the court or judge is asked to authorise; and

if such manner of service be other than personal service, the last known whereabouts of the person to be served and the inquiries made to ascertain his or her present whereabouts. (My emphasis)

Upon such application the court or judge may make such order as to the manner of service as to the court or judge seems fit and shall further order the time within which notice of intention to defend is to be given or any other step that is to be taken by the person to be served.

Where service by publication is directed, it shall not be necessary to publish the document or documents in an extensive form but in a short form thereof to be approved and signed by the registrar.

Any process or document in such case shall be served in such a manner and subject to such conditions as the court or judge in each particular case directs.

Any person wishing to obtain leave to effect service outside Zimbabwe of any document other than one through which proceedings are instituted, may either make application for such leave in terms of subrule (2) or request such leave at any hearing at which the court or judge is dealing with the matter, in which latter event no papers need to be filed in support of such request, and the court or judge may act upon such information as may be given from the bar or in chambers or given in such other manner as the court or judge may require, and may make such order as it, he or she considers fit.

Rule 18 provides for service of court process in some specified neighbouring countries, including South Africa, by the sheriff or deputy sheriff of the area concerned after obtaining the necessary leave wherein the applicant would have disclosed the reasons for seeking such service.

As such applications are ex parte the law demands that there must be full disclosure of all the material facts that might influence the decision to grant or deny the application.  The applicant must be candid.

In Beverly Building Society v Rgwafa 2005 (1) ZLR 108 (S) at pp 111G-112B the court aptly noted that:

“As the application was ex parte, Godfrey should have made a full disclosure of all the relevant information which was within his knowledge and which might have affected the granting of the order sought. In this regard, the learned authors of Herbstein & Van Winsen: The Civil Practice of the Supreme Court of South Africa 4 ed state as follows at p 367:

‘Although, generally, an applicant is entitled to embody in his supporting affidavits only allegations relevant to the establishment of his right, when he is bringing an ex parte application in which relief is claimed against another party he must make full disclosure of all material facts that might affect the granting or otherwise of an order ex parte. The utmost good faith must be observed by litigants making ex parte applications in placing material facts before the court, so much so that if an order has been made upon an ex parte application and it appears that material facts have been kept back, whether wilfully and mala fide or negligently, which might have influenced the decision of the court whether to make an order or not, the court has a discretion to set the order aside with costs on the ground of non-disclosure.’”

In J.W.  Jagger & Co (Rhodesia)(Wholesaling) (Pvt)Ltd v Mubita 1972 (4) SA 100 (R) at 102B, BEADLE CJ reiterated that in ex parte applications applicants must be very careful not to conceal vital facts from the Court.  The court will take a serious view of non-disclosures. Clearly, therefore, any deliberate intent to mislead the court by non-disclosure of material facts is to be viewed in very serious light.

In casu, it is common cause that at the issuance of the summons leading to the default judgment in question, the appellant was, to the knowledge of the first respondent, not in Zimbabwe but in Italy.  In seeking to serve the process outside this jurisdiction, the first respondent obtained an order for edictal citation by publication in a newspaper in circulation in South Africa. It is common cause that in obtaining leave to serve by edictal citation, the first respondent deliberately did not disclose that it had successfully served a letter of demand on the appellant at an address in Italy and that the appellant had responded to that letter of demand.

In seeking service in South Africa, the first respondent alleged that the appellant’s last known address was in South Africa, namely 33 Middle Road, Morningside, Sandton, South Africa when it knew that this was not true as the last known address at which it had effectively communicated with him was in Italy.  It is interesting to note that even in seeking to serve in South Africa, it did not seek service by the sheriff or deputy sheriff at the physical address it had alleged was the appellant’s last known address, it instead sought leave to serve by publication in a Newspaper.  The first respondent was cunningly avoiding effective service on the appellant hence the concealment of the correct address for effective service.

The need for effective service cannot be overemphasised. In CBZ Bank Ltd v Ziyambi & Ors HH 74/17 at p 6, the court alluded to the importance of effective service of process in these words:

“The purpose of the rules on service and why the rules must be adhered to is meant to safeguard the rights of persons who will not have been served with process and therefore being in the dark that a claim has been made against them from having default judgments granted against them. Save as the law may specify by way of limitation or denial of such right, the audi alteram partem rule or doctrine must always be followed. If courts grant orders against persons without giving them an opportunity to defend themselves which opportunity a person can only utilize or elect not to utilize after service of process, the administration of justice will fall into disrepute. A court allowing this would be breaching the rights of such defendant to administrative justice and a fair hearing as provided for in the operative or relevant provisions of ss 68 and 69 and 165 (1) (a) of the Constitution.”

See also CABS v Chirocherwa 2001(2) ZLR 452(H).

It is axiomatic that the validity of service affects the validity of proceedings.  Where there is no valid service the process and the proceedings are a nullity.

In Todt v Ipser 1993 (3) SA 577(A) at 589C the court noted that:

“According to our common-law authorities judgments are void in only three types of cases, where there has been no proper service, where there is no proper mandate or where the court lacks jurisdiction.” (My emphasis)

In Featherstonehaugh v Suttie 1913 TPD 171 at 178 the court alluded to the fact that:

“If there has been any defect in the service, the summons is of no force; and everything following thereupon is invalid as if the summons had been totally absent.”

This is the scenario obtaining in casu.  The irregularities committed by the first respondent render the entire process a nullity.  Anything birthed by the fraudulently obtained order for edictal citation cannot stand as that order was a nullity.  The summons issued under HC 8511/18 were therefore not properly and validly served on the appellant as they were a product of an invalid process. The invalidity of the summons as it applies to the appellant entails that there is nothing for him to defend. This Court cannot reward the first respondent for his cunning conduct in obtaining the order for edictal citation and subsequent orders by allowing the appellant to enter appearance to defend such invalid processes.  It is only proper that all the proceedings in HC 7538/18, HC 8511/18 and HCH 2270/24 as they relate to the appellant be set aside.

In light of the irregularities in obtaining the order for edictal citation observed by the court, which order tainted the summons issued under HC 8511/18 to which the first respondent’s counsel conceded, the court exercised its review powers in terms of s 25 of the Supreme Court Act [Chapter 7:13] in disposing the matter.

DISPOSITION

It is common cause that in seeking an order for edictal citation the first respondent deliberately concealed material facts regarding its communication with the appellant which showed that the appellant was in Italy and not in South Africa.  Upon obtaining a default judgment, birthed by the order for edictal citation, the first respondent sought the recognition and enforcement of that judgment in Italy, thus further confirming its knowledge of the fact that the appellant was in Italy.  The first respondent’s conduct in concealing the material facts was repugnant and cannot be countenanced.  The order for edictal citation was a nullity and so was the service of summons in furtherance thereof.  Further, the default judgment being a product of a nullity cannot stand.  Had the court a quo applied its judicial mind to the irregularities in question it would have come to the conclusion that the applications before it were not necessary as the prior proceedings were all a nullity.  It is trite that a nullity cannot beget a valid process, hence, all the processes were a nullity and generally one does not need to seek the setting aside of a nullity. This inevitably affects the validity of the proceedings before this Court as they were a product of invalid proceedings.

There is no reason why the first respondent should not be made to bear the appellant’s costs.

Upon a consideration of the order granted the court noted some patent error and ambiguity that needed correction to ensure the order correctly and accurately reflects the court’s disposition.  In this regard a notice was issued to the parties in terms of r 81 of the Supreme Court Rules 2025 as read with r 29(3) of the High Court Rules 2021 indicating the court’s intention to correct the order in terms of r 29(1)(b) of the High Court Rules.  As a result, a corrigendum was issued on 24 September 2025 as follows:

The matter be and is hereby struck off the roll.

In the exercise of the court’s review powers in terms of s 25 of the Supreme Court Act [Chapter 7:13]:

(a) the proceedings in HC 7538/18 and HCH 2270/24 be and are hereby set aside.

(b) the proceedings in HC 8511/18 as against the appellant be and are hereby set  aside.

The first respondent shall pay the appellant’s costs.

MAVANGIRA JA	: 	I agree

MUSAKWA JA	: 	I agree

Kantor & Immerman, appellant’s legal practitioners.

Sibanda & Partners, first respondent’s legal practitioners.