Thenjiwe Ndlovu v Vision Sithole and Others

The first respondent (Vision Sithole) issued summons on 6 October 2008 seeking transfer of stand 20027 Pumula South, Bulawayo from the applicant (Thenjiwe Ndlovu) to himself, alleging a written sale agreement dated 22 September 2005. The first respondent filed an application for default judgment on 3 November 2008 based on a return of service allegedly showing that the applicant had been served with the summons on 7 October 2008. Ndou J granted default judgment on 12 November 2008, and the first respondent obtained transfer of the property. The applicant later discovered the transfer and filed an urgent application to reverse it, alleging she never sold the property to the first respondent, did not know him, and that he had acted fraudulently. The Deputy Sheriff disowned the return of service through affidavits from Regina Gumbo (Deputy Sheriff) and Lindiwe Muguto, demonstrating it was a forgery. The first respondent claimed he had subsequently sold the property to "the Sibandas," but failed to provide evidence of this alleged sale, and photographs showed the property remained uninhabitable at window level without roofing.

• Whether the default judgment of 12 November 2008 was erroneously obtained based on a fraudulent return of service
• Whether the court has power to rescind a judgment obtained through fraud under Order 49 Rule 449 of the High Court Rules
• Whether transfer of property obtained through a fraudulent court order is valid and enforceable
• Whether a party can pass title to property that was unlawfully acquired

The court confirmed the provisional order with the following terms: (a) The order of 12 November 2008 was rescinded; (b) The transfer of stand 20027 Pumula South, Bulawayo to the first respondent was set aside; (c) The Deputy Sheriff was ordered to sign all documents necessary to transfer the stand back to the applicant; (d) The first respondent was ordered to bear costs on an attorney and client scale.

A judgment obtained through fraud, particularly through a forged return of service showing service when none occurred, is a nullity that can be rescinded under Order 49 Rule 449(1)(a) of the High Court Rules as a judgment "erroneously sought or erroneously granted in the absence of any party affected thereby." Transfer of property obtained by virtue of a fraudulent court order confers no legal right on the transferee and is void. A party cannot pass title to property that was unlawfully acquired - the nemo dat principle applies. A real right becomes enforceable against the world only if obtained in good faith, and rights obtained through fraud are unenforceable.

The court made observations about proper service procedures, noting that summons are never served at the Housing Office but should be served at specific designated locations (Tower Block on specific officials). The court also commented on the failure of the first respondent to produce the alleged written sale agreement, suggesting it was unlikely to exist, and similarly questioned the existence of "the Sibandas" as alleged purchasers given the lack of particulars and the uninhabitable state of the property. The court noted that even if third parties had acquired rights, they could not obtain valid title from someone who had no lawful right to transfer.

This case demonstrates the High Court's willingness to exercise its inherent jurisdiction to rescind judgments obtained through fraud, particularly where forged returns of service are used to obtain default judgments. It reinforces the principle that property rights obtained through fraudulent court processes are nullities and unenforceable. The case serves as an important reminder of the court's protective role in preventing abuse of process and ensuring that property cannot be unlawfully transferred through fraudulent manipulation of court procedures. It also illustrates the application of the nemo dat quod non habet principle - that one cannot transfer rights one does not lawfully possess.