Bridget Koroni and Pamela Zvidzai v Desmond Rusere and Callista Nyasha Munengwa and City of Harare and Theresa Chinodakufa

The applicants were granddaughters of the late Zvidzai Moses Koroni who had rights in stand number 34 Chigutsa Road, New Mabvuku. The property was ceded to the applicants. The fourth respondent (Theresa Chinodakufa) purported to be a sister to the late Koroni. In HC 6/06, Bridget purportedly obtained an order in default that the property be sold and proceeds shared equally. In HC 7208/07, Bridget again purportedly approached the court and obtained an order in default that Pamela sign documents to facilitate cession of the property to the first and second respondents. On 11 December 2009, Bridget filed an application alleging fraud by the fourth respondent in obtaining the order in HC 7208/07. Upon examination, the court noted that supplementary affidavits filed in HC 7208/07 were signed by the fourth respondent despite being deponent-ed by Bridget. A forensic report established that the founding affidavit and Power of Attorney allegedly signed by Bridget were forged.

• Whether a judgment obtained through fraud can be set aside under common law
• Whether the application was brought timeously
• Whether there is a distinction between rescission and setting aside of a judgment obtained by fraud
• Whether defective supplementary affidavits material to the granting of an order invalidate the proceedings
• Whether innocent purchasers can rely on title obtained through fraudulent proceedings

1) The judgment granted on 30 April 2008 in case number HC 7208/07 was set aside. 2) The first, second and fourth respondents were ordered to pay costs of the application.

A judgment obtained through fraud is a nullity and can be set aside under common law. Nothing legal can flow from a fraudulent act - it is automatically null and void without need for a court order, though it is convenient to have the court declare it so. Every proceeding founded on a fraudulent act is incurably bad and will collapse. Where material documents essential to the granting of an order contain forgeries or material defects (such as affidavits signed by persons other than the deponent), the order cannot stand and proceedings may be set aside under Rule 449. The forensic evidence of forgery that is not challenged by respondents establishes fraud.

The court observed that the question of whether a judgment should be rescinded or set aside on grounds of fraud is a question of semantics, with both terms being used interchangeably in legal authorities such as Herbstein and Van Winsen's The Civil Practice of the Supreme Court of South Africa. The court noted Lord Denning's dictum that 'you cannot put something on nothing and expect it to stay there. It will collapse.' The court also commented that it would have been convenient but not necessary for the fourth respondent to face criminal charges for the fraud, though this was not a prerequisite for setting aside the judgment in civil proceedings.

This case is significant in Zimbabwean jurisprudence (also highly persuasive in South African law given similar legal principles) for affirming the principle that judgments obtained through fraud are nullities and can be set aside under common law. It reinforces that fraudulent acts cannot create legal rights, even for innocent third parties who rely on orders obtained through fraud. The case also clarifies that material defects in documents fundamental to obtaining an order can invalidate proceedings under the rules of court. It demonstrates the court's willingness to investigate anomalies even after hearing submissions and to set aside transactions built on fraudulent foundations, regardless of claims of innocent purchase.