This is an appeal against part of the judgment of the High Court, Harare, handed down on 16 October 2013. The specific part of the judgment appealed against reads as follows:“(1)….,.(2) The alternative relief is hereby granted, and, accordingly, the applicant is granted leave, in terms of section 6(b) of ...
This is an appeal against part of the judgment of the High Court, Harare, handed down on 16 October 2013. The specific part of the judgment appealed against reads as follows:
“(1)….,.
(2) The alternative relief is hereby granted, and, accordingly, the applicant is granted leave, in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Cap 24:27] to institute any action or proceedings in any court or tribunal of competent jurisdiction in Zimbabwe against SMM HOLDINGS (PVT) LTD (under reconstruction), to claim payment of US$4,350,000 or part thereof together with interest thereon at the prescribed rate of 5% per annum and costs of suit or any other relief available to the applicant at law.
(3) The respondent shall bear 50% of the applicant's costs of suit.”
Although the appellant filed detailed grounds of appeal, it is agreed that two main issues arise in this appeal. These are:
(a) Whether there was a proper application before the court a quo; and
(b) Whether the court a quo was correct in holding, that, the appellant could not consider the merits of the respondent's complaint in relation to the question of the grant of leave.
In addition to these two issues, the appellant also attacks the decision by the court a quo to award fifty per cent of the costs to the respondent....,.
3. Costs
The final ground of appeal challenges the quantum of costs awarded against the appellant, which the court a quo justified thus in its judgment:
“Regarding the question of costs, the applicant (respondent) has been partially successful, given that its main application for the declaration of section 6 as unconstitutional has not found favour with me, while the alternative claim has. For that reason, I consider that it cannot recover all its costs. It has only made a case for 50 per cent of its costs.”
The appellant contends, that, the judge a quo exercised his discretion injudiciously in respect of the fifty per cent award of costs, given that the court had considered three main issues and found for the respondent in respect of only one of them. Accordingly, the appellant contends, the costs for each of the three issues should have been thirty-three per cent.
I am not persuaded by this contention.
A look at the draft order of the respondent in the court a quo clearly shows that it sought, apart from costs, one main and one alternative form of relief. It was successful in respect of the alternative relief sought. To the extent that costs could be apportioned, based on a mathematical calculation of the issues considered by the court, the 50 per cent, even by the appellant's own formula, would be reasonable. I however entertain some doubt as to the practicality of such an approach.
Counsel for the appellant argues in the alternative, that, even if only two issues were determined by the court a quo, there should either have been no order as to costs, or each party should have borne its own costs.
I hold a different view.
All that the respondent, in reality, craved, was the removal of any obstacle to the prosecuting of its claim against SMM Holdings (Private) Limited (SMM). It sought two orders in the alternative, either one of which would have given the respondent the relief it craved. The court granted the alternative relief, even though it, and all the parties, had expended time in arguing and considering the merits or demerits of the main relief sought by the respondent. Since the respondent, in the end, secured the entirety of the relief that it wanted, my view is that it was entitled to part, if not all, of its costs.
However, there having been no cross appeal by the respondent on this aspect, there would be no basis for interference at this stage.
Costs being a matter for the court's discretion, I do not, in any case, find that this discretion was exercised injudiciously by the judge a quo, when he ordered the appellant to bear half of the costs.
