This application came before me on the unopposed roll for an order that the respondents refund the applicant the sum of USD$4,641=40 and pay costs of suit on a higher scale in the event that they oppose the granting of the order.A report was filed on behalf of the first ...
This application came before me on the unopposed roll for an order that the respondents refund the applicant the sum of USD$4,641=40 and pay costs of suit on a higher scale in the event that they oppose the granting of the order.
A report was filed on behalf of the first respondent in which the court was advised that the respondents would abide by the decision of the court. None of the respondents had any interest in the matter, except that guidance was sought from the court on the correct legal position.
The court dismissed the application with costs and stated that its reasons for so doing would follow. These are the reasons:
On 26 February 2016, a court application for a refund was filed of record, by Mr Puwayi Chiutsi, the applicant's sole partner. He averred that a bill of costs in case number HC7370-11 had been taxed by the second respondent, who had raised a taxing fee of USD$4,641=40. The taxation was subsequently set aside, on review, in case number HC9821-14 on 11 November 2014. The parties resolved the matter and the bill was withdrawn. On 6 January 2015, the applicant wrote a letter to the respondents seeking a refund of the taxing fee because the bill of costs had been set aside on review and the parties had subsequently settled the matter.
The respondents having refused to refund the taxing fee, we have now been asked to guide the parties on the correct legal position.
The issue that arises for determination is whether a taxing fee which was deducted at the instance of the Registrar of this court, by the taxing officer, is refundable in any circumstances, and/or more particularly, in these circumstances where the bill of costs which was taxed was subsequently set aside on review and the parties reached an amicable settlement?
The applicant submitted that the court should be guided by the case of PT Sigauke v ES Muswerakuenda & The Taxing Officer & Deputy Sheriff Harare HC93-053 as authority for the proposition that a taxing fee is refundable.
The respondents' opinion was that a taxing fee is not refundable because its basis is not dependent on execution. They referred the applicant to S.I.426 of 1992 which stipulates that any bill of costs which is taxed by the Registrar or the Taxing Master shall be subject to a taxing fee.
When the matter was initially set down on the unopposed roll, on 27 April 2016, the applicant was directed to serve a copy of its application on the Attorney General. It did so 4 May 2016, and subsequently filed supplementary heads of argument on 10 May 2016 in which it submitted that in terms of section 8 of the State Liabilities Act [Chapter 8:14] the court was precluded from taking any notice of failure to comply with section 6 on its own. At the time that the file came before me, on 18 May 2016, no response had been filed by the Civil Division of the Attorney General's Office.
The taxation of a Bill of Costs is provided for in terms of Order 38 Rule 307 of the Rules of the High Court 1971, as follows:
“ORDER 38 TAXATION OF COSTS AND REVIEW OF TAXATION
307. Costs allowed
With a view to affording the party who has been awarded an order for costs a full indemnity for all costs reasonably incurred by him in relation to his claim or defence and to ensure that all costs shall be borne by the party against whom such order has been awarded, the Taxing Officer shall, on every taxation, allow all such costs, charges, and expenses as appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, but save as against the party who incurred the same, no costs shall be allowed which appear to the Taxing Officer to have been incurred or increased through over-caution, negligence, or mistake, or by payment of a special fee to another legal practitioner, or special charges and expenses to witnesses or other persons or by other unusual expenses.”…,.
The Taxing Officer is enjoined to allow all such costs, charges, and expenses as appear to him to have been necessary or proper for the attainment of justice or defending the rights of any party. He must be guided by the tariff of legal practitioner's fees prescribed in the High Court (Fees and Allowances) Rules, regard being had to any amendment to the tariff from time to time; see Order 38 Rule 302.
Section 57 of the High Court Act, 1981 [Chapter 7:06] provides that:
“The Minister may make regulations providing for the fees which shall be payable in respect of instruments, services, or other matters received, issued, provided or otherwise dealt with by the registrar or Sheriff or any other officer to the High Court in the course of his duties or in the office of such office.”
The High Court (Fees) (Civil Cases) Regulations 1992, Statutory Instrument 426 of 1992, were promulgated by the Minister on the basis of the authority given to him to do so by section 57 of the High Court Act. The regulations provided the appropriate fee for all fees in respect of instruments, services or other matters received, issued, provided, or otherwise dealt with by the Registrar or Sheriff or any other officer of the High Court in the course of his duties. The regulations stipulated that any prescribed fee was payable, in peremptory terms. Neither the quantum of the fee or the requirement to pay is discretionary. The schedule set out in S.I.426 of 1992 was substituted by S.I.50 of 2009.
It is common cause that the taxing fee set out in S.I.50 of 2009 (number 8) is USD$20 for each USD$100 allowed or part thereof. There is nothing in these rules which provides for the refund of a taxing fee.
The case of PT Sigauke v ES Muswerakuenda & The Taxing Officer & Deputy Sheriff Harare HC93-053, which the applicant seeks to rely on, concerned an urgent chamber application for stay of execution of a writ of execution that had been issued when judgment was obtained in respect of non-payment of a taxed bill of costs.
My reading of that case is that the court referred to the remedy in its Rules that provided for an application for review of a taxed bill of costs. It expressed its opinion that the applicant could have applied for a review of the bill of costs in terms of the rules, and that, had he done so, the filing of the application for review would have automatically suspended the writ of execution.
The court said that;-
“The taxation was done on the 11th October 2005. A week has since passed, and yet, apart from seeking stay of execution, the applicant has not proffered any evidence that he is pursuing any remedies in terms of the Rules. Had the applicant sought a review of the taxation proceedings, then the review would have acted as an automatic stay of execution.”...,.
The following cases all dealt with the issue of costs, their taxation, the suspension of writs of execution which were issued in respect of taxed bill of costs; ABC Bank Limited v Mackie Diamonds BVA & Anor HH928-15; Tetrad Holdings Ltd v Master of the High Court & 2 Ors HH898-15; Delta Corporation Ltd v ZIMRA HH621-15; Elliot Rodgers v P. Chiutsi HH222-15.
