Puwayi Chiutsi v The Sheriff of Zimbabwe and Barriade Investments (Pvt) Ltd and Elliot Rodgers

The applicant, Puwayi Chiutsi, a legal practitioner, owned property (the remainder of Subdivision C of Lot 6 of Lots 190-195 Highlands Estate of Welmoed in Harare). The 3rd respondent, Elliot Rodgers, obtained judgment against the applicant in case HC 3331/14 for payment of moneys. The 1st respondent (Sheriff of Zimbabwe) attached the applicant's property pursuant to a writ of execution. The property was sold in a judicial sale on 18 September 2017 to the 2nd respondent, Barriade Investments (Pvt) Ltd. The applicant challenged the sale under case HC 11349/17, seeking to set aside the Sheriff's confirmation of the sale. The 3rd respondent applied under HC 2650/18 for transfer of the property. Both applications were consolidated and heard by Mathonsi J, who dismissed both applications under judgment HH 604/18 on 30 October 2018. The applicant then brought the current application under Rule 449(1)(b) and (c) to set aside Mathonsi J's judgment, alleging it was granted in error because the Sheriff misled the court by presenting the 2nd respondent as having participated in the auction when the applicant discovered they did not. The 2nd and 3rd respondents opposed. After various procedural applications including recusal (dismissed 27 May 2021) and postponements, the matter was set down for hearing on 20 July 2021 by consent. On that date, counsel for the 2nd and 3rd respondents failed to appear without explanation or notice.

• Whether default judgment should be granted when counsel fails to appear at a hearing set down by consent without explanation or notice to the court or opposing party
• Whether the conduct of legal practitioners in failing to appear without communication constitutes contempt or abuse of court process
• The proper approach of the court when dealing with unexplained absence by counsel who are officers of the court

1. Judgment granted for the applicant as prayed for in the draft order as amended. 2. The judgment by Honourable Mathonsi J (as he then was) in case No HC 11349/17 is set aside. 3. The 2nd and 3rd respondents shall bear the costs of the application on the legal practitioner and client scale.

Legal practitioners, as officers of the court, have a duty to appear at hearings scheduled by consent or to communicate with the court and opposing parties if they are unable to attend. Failure to appear without explanation or communication at a hearing set down by consent constitutes knowing default justifying default judgment. Such conduct by counsel is unacceptable, unprofessional, and constitutes disrespect to the court that risks undermining judicial authority. The court has inherent authority to impose sanctions, including costs orders and default judgments, against parties whose counsel engage in such conduct.

Chitapi J observed that unexplained failure by counsel to appear at court could result in the court ordering legal practitioners to pay costs de bonis propriis (from their own pocket). However, the court declined to make such an order in this case because counsel had not been given an opportunity to address the issue. The court also noted that it is not usual for a judge to write a full judgment in an application for default judgment, but that a judgment is appropriate when the court considers it necessary to express its displeasure with the conduct of parties and counsel, as "the court speaks through its judgment." The court emphasized that administratively, all parties involved in litigation have a right to be furnished with reasons for every decision made by the court or tribunal hearing their case.

This case is significant for establishing standards of professional conduct and ethical obligations of legal practitioners as officers of the court in Zimbabwe (and by analogy South African law given similar professional obligations). It emphasizes that counsel cannot simply absent themselves from court hearings, particularly those set down by consent, without communication or explanation. The judgment reinforces the court's authority to discipline legal practitioners who show disrespect to the court through unprofessional conduct. It also demonstrates the court's willingness to grant default judgment in circumstances of knowing default by legal practitioners. The case serves as a warning to the legal profession about the consequences of failing to meet professional obligations to the court and opposing parties.