On 1 November 2003, the applicant (seller) and 1st respondent (buyer) entered into a written agreement of sale for stand 9035 Bulawayo Township. The 1st respondent claimed to have paid the full purchase price, which the applicant denied. On 30 June 2005, the 1st respondent issued summons against the applicant. The applicant filed appearance to defend on 2 December 2005. A Notice of Intention to Bar was filed, and on 7 June 2007 the bar was purportedly effected. On 4 October 2012, default judgment was entered against the applicant ordering transfer of the property to the 1st respondent. The property was transferred to the 1st respondent on 21 November 2017. The applicant only became aware of the default judgment on 17 January 2018 when his legal practitioners received a letter from the 1st respondent's lawyers. The applicant applied for rescission of the default judgment. A significant issue arose regarding the 1st respondent's legal practitioners (Messrs Webb, Low and Barry) who had previously represented both parties and had advised in November 2004 that they were conflicted and could not act for either party, yet subsequently represented the 1st respondent against the applicant.
The default judgment granted under case number HC 1166/05 on 4 October 2012 was set aside. The applicant was directed to file his plea or other answer to the 1st respondent's claim within 5 days. The registration of stand 9035 Bulawayo Township under Deed of Transfer Number 1726/17 dated 21 November 2017 from the applicant's names into the 1st respondent's names was cancelled, with the property reverting to the deed immediately preceding (Deed of Transfer Number 1475/79 dated 20 June 1979). The Registrar of Deeds was ordered to give effect to the cancellation by making appropriate endorsements. Each party was ordered to bear its own costs.
A default judgment obtained without proper compliance with the barring procedure under Order 12 Rule 81 of the High Court Rules is erroneously granted and constitutes a nullity. Specifically, where no certificate of service is filed with the Registrar and the notice of intention to bar is not properly endorsed and filed as required by Rule 81, the defendant is not properly barred and default judgment should not be granted. For rescission under Rule 449, once the three requirements are satisfied (judgment erroneously sought or granted, judgment granted in absence of applicant, and applicant's rights affected), the applicant is entitled to succeed without the court inquiring into the merits to find good cause. While there is no specific time limit for applications under Rule 449, they must be brought within a reasonable time without undue delay, which is a question of fact determined by the explanation for delay and the circumstances of each case.
The court made strong observations regarding the ethical conduct of legal practitioners and conflicts of interest. Makonese J noted that legal practitioners owe their clients a duty of loyalty and must devote their energy, intelligence, skill and personal commitment to furthering the client's interests. A legal practitioner who represents the adversary of his own client would clearly violate the duty of loyalty and common rules against conflicts of interest. The court expressed the view that the conduct of the 1st respondent's legal practitioners in this case was unacceptable and did not measure up to laid down principles regarding attorney-client privilege, particularly given their earlier admission that they were conflicted. The court emphasized that it has a duty to regulate the conduct of legal practitioners and ensure they comply with high ethical standards expected of them, citing Robinson v Van Hulsteyn and others 1925 AD 12 for the principle that a solicitor is an officer of the court and must display a very high standard of conduct towards the court and clients.
This case reinforces the strict procedural requirements for barring defendants under Order 12 Rule 81 of the High Court Rules and the consequences of non-compliance. It affirms that failure to file a certificate of service and properly complete the barring procedure renders a subsequent default judgment a nullity. The judgment also provides important guidance on applications for rescission under Rule 449, confirming that there is no specific time limit but applications must be brought within a reasonable time without undue delay, assessed on the facts of each case. The case further highlights the high ethical standards expected of legal practitioners regarding conflicts of interest and the duty of loyalty to clients, though it illustrates the court's approach where no specific relief is sought on this ground. It demonstrates the court's inherent jurisdiction to regulate the conduct of legal practitioners and uphold professional standards.