MATANDA-MOYO
J: The plaintiff issued summons against the defendants jointly and
severally, the one paying the others to be absolved, for the
following relief:-
“a) Claim
1
-
$64
828-67 being capital
-
$267-48
being bank charges
-
Interest
on the sum of $64 828-67 at the rate of 4.85% per month above the
prevailing Libor with effect from 1 March 2010 to date of full and
final payment.
b) Claim
2
-
$158
432-79 being capital
-
$29
270-70 being interest
-
$385-97
being bank charges
-
Interest
on the sum of $158 432-79 at the rate of 4.85% per month above the
prevailing Libor with effect from the 1st
of December 2012 to date of full and final payment.
c) Costs
of suit on a legal practitioner and client scale and collection
commission as provided for under the Law Society of Zimbabwe By-Laws
(1982).”
On
the date of hearing after listening to opening statements by both
counsels, I realised that the issues could be narrowed down to only
one, that is the level of costs payable. The parties consented to
that. As a result consent judgment was issued in the following:-
“1. That
judgment in favour of the plaintiff be and is hereby granted against
1st,
3rd,
4th,
5th
and 6th
defendants jointly and severally the one paying the other to be
absolved for payment of $386 000-00.
2. 1st,
3rd,
4th
and 6th
defendants shall pay to the plaintiff the sum of US$50 000-00 on or
before 26 January 2015. The balance of $336 000-00 shall be
paid on or before the 30th
April 2015.
3. A
certain piece of land situate in the District of Salisbury called
Stand 63 Beverly East of Beverley Estate measuring 4 684 square
metres held under Deed of Transfer number 8615/05 dated 18 December
1995 be and is hereby declared specially executable only in the event
of the defendant's default and the plaintiff's legal
practitioners shall attend to the conveyancing thereof.”
The
plaintiff insisted that it should be paid costs on a higher scale.
The plaintiff argued that there is no basis for making it pay legal
costs incurred unnecessarily. The defendants used unwarranted
dilatory tactics to delay finalisation of this matter thus
prejudicing the plaintiff of its monies which were legally due, and,
thereby prolonging matter, causing the plaintiff to further incur
unnecessary legal costs. On the date of hearing the defendants
applied for a postponement to allow some application for
consolidation to be determined by this court. The applicant argued
that the application for consolidation was designed to delay the
finalisation of the matter further. Such tactics showed that the
defendants were not serious about settling the matter.
Looking
at the defendant's plea, it is clear that the plea did not disclose
a defence. The issue of payment of costs on a higher scale was never
put in issue. The plaintiff also argued that in terms of clause 10
of the various agreements signed with the defendants, the plaintiff
is entitled to costs on a higher scale.
Counsel
for the defendants strongly opposed the granting of costs on a higher
scale. He denied that the defendants played for time. He attributed
the delay to reaching a settlement on the plaintiff's counsel whom
he accused of not having been co-operative during the proceedings and
negotiations. He alleged it was the plaintiff's counsel who
refused to meet with the defendants to finalise issues.
As
a general rule the losing party pays the costs of the winning party.
Usually such level of costs are on a party to party scale. However,
there are situations where the courts are called upon to order
punitive costs against litigants for various reasons, for example
where parties like in this instance agree that such costs would be
payable. See Mcpherson
v
Teuwan
& Anor
(2012) ZAGP JHC 18.
I
have perused the various agreements signed between the parties and
observed that indeed under clause 10, it is provided that in case of
default:-
“Kingdom
shall take other legal actions as it may in its absolute discretion
decide, the costs of which the company
shall be liable on a legal practitioner
and
own client scale,
including, for the avoidance of doubt, any collection commission that
maybe charged and any other costs of recovery of the due and payable
amount.”
The
above paragraph gives the plaintiff the discretion of deciding when
to take legal action and it gives the plaintiff the right to recover
costs on a legal practitioner and own client scale.
A
plethora of cases have held that the court has a discretion to, even
in the face of an agreement, refuse to sanction such an agreement.
See Neyhoff
v
York
Timber Ltd
1981 (4) SA 666 T at 684 A - H.
In
arriving at my decision, I have considered the purpose of punitive
costs which amongst others are deterring frivolous litigation,
encouraging parties to settle wherever possible and discouraging
institution and continuation of hopeless cases and defences.
The
defendants have failed to provide any basis for me to disregard the
agreement between the parties. That agreement provided that in the
event of the plaintiff approaching the court in the case of default
by the defendants, the plaintiff would be entitled to costs on a
higher scale.
From
the onset this was a matter which should have been settled earlier.
However, the defendants decided to buy time by advancing hopeless
defences. The matter failed to proceed to trial when the matter was
initially set down on 3 June 2014 due to one excuse or the other by
the defendants. Such postponements of course caused prejudice on the
plaintiff and inconvenience to the court. The court has no option
but to show its displeasure by awarding costs on a higher scale.
The
defendant has failed to show that the plaintiff's counsel caused
the delays in finalising the matter.
In
the result, it is ordered as follows:-
The
first, third, fourth, fifth and sixth defendants jointly and
severally the one paying the other to be absolved, be and are hereby
ordered to pay the plaintiff's costs on a client-attorney scale.
Sawyer
& Mkushi,
Plaintiff's Legal Practitioners
C.
Kuhuni Attorneys,
Defendants' Legal Practitioners
