Iqbal Ealisa Karbanee v Makhosini Hlongwane and Gotect Marketing (Private) Limited and Registrar of Deeds, Bulawayo N.O.

The Applicant, a non-resident of Zimbabwe, sought the services of Ms Katso to find a buyer for his property. The Applicant contended that he never gave Ms Katso a power of attorney or authority to sell the house on his behalf, and that he was to sign the agreement of sale himself. The 1st Respondent filed a court application to compel transfer of the property and served the application on Ms Katso, despite knowing that the Applicant was challenging Ms Katso's authority as agent and that the Applicant was non-resident. The 1st Respondent obtained a default judgment. The Applicant then brought an application for rescission of judgment in 2008, which was opposed by the 1st Respondent. The 1st Respondent's legal practitioners eventually consented to the rescission order, leaving only the question of costs to be determined.

• Whether rescission of judgment should be granted where service was effected on a disputed agent without proof of authority to receive court process
• Whether costs should be awarded on an attorney and client scale where the opposition to rescission was unreasonable and not in good faith
• Whether service of court process on an agent without a power of attorney is proper service, particularly where the principal is non-resident

The court ordered that the 1st Respondent pay costs of the rescission application on an attorney and client scale.

Service of court process on a purported agent without proof of a power of attorney authorizing the agent to receive such process is improper, particularly where the principal is non-resident and has disputed the agent's authority. Where a party unreasonably opposes a rescission application knowing that judgment was obtained through defective service on a disputed agent without proper authority, and maintains this opposition not in good faith, costs on an attorney and client (punitive) scale are appropriate.

The court observed that even if the 1st Respondent believed that Ms Katso had authority to sell the property, it would be 'far fetched' to assume that the same agent was empowered to receive court process on behalf of a non-resident principal in the absence of a power of attorney. The court characterized the 1st Respondent's conduct as 'snatching a judgment' and noted that the Respondent 'clung to the judgment for nearly six years' despite being aware of the challenges to the agent's authority, conduct which the court described as 'clearly not in good faith.'

This case establishes important principles regarding service of court process on agents and the circumstances justifying punitive cost orders. It emphasizes that where a party is non-resident and there is a dispute about an agent's authority, service of court process on that agent without a power of attorney is improper. The case also reinforces that unreasonable opposition to rescission applications, particularly where a party has obtained judgment through questionable service and maintains that position despite knowing of challenges to the agent's authority, can result in punitive costs awards on an attorney and client scale. It serves as a warning against parties clinging to judgments obtained through defective service and opposing rescission applications in bad faith.