What
is beyond dispute in this case is that the application under case number
HC2029/10 was properly served on the applicant on 25 January 2011.
The
applicant chose not to oppose the application. In brief, the applicant did not
oppose the registration of the arbitral award granted in favour of the first
respondent. Counsel for the applicant attacked the propriety of the application
for registration of the arbitral award. He attacked the procedure followed by
the first respondent in the application. He attacked the non-disclosure of
material facts by the first respondent in his founding affidavit. He argued
that the figure awarded was inflated.
The
problem the applicant has in this approach is that it was served with the
application. It was afforded an opportunity and a forum to raise all these
objections. It chose not to utilize the said opportunity and forum. It only
sprung into action when the first respondent attempted to satisfy his judgment
against its property. Why did the applicant wait until its property was
attached? There is no reasonable explanation for such inaction. This inaction
is important in the determination of the issue of costs.
It
is trite law that the award of costs is a matter wholly within the discretion
of the court. But this is a judicial discretion and must be exercised on
grounds upon which a reasonable man could have come to the conclusion arrived
at – Fripp v Gibbon & Co 1913 AD
354; Levben Products (Pvt) Ltd v Alexander Films (SA) (Pty) Ltd 1957 (4) SA 225
(SR).
As
alluded to above, there has been inept handling of this litigation by the
applicant. The applicant did not oppose the application at the appropriate
stage until the day of reckoning i.e execution. This has resulted in this
application. The applicant should bear the costs of this application which
would not have been necessary had the opposition been made timeously – Benmac
Mfg Co (Pvt) Ltd v Angelique Entprs (Pvt) Ltd 1988 (2) ZLR 52 (H) and Mac &
Sons Coach-Builders (Pvt) Ltd v Mapfumo & Anor 1984 (1) ZLR 16 (H).
Accordingly,
it is ordered that the applicant will bear costs of this application on the
ordinary scale.
