IN
CHAMBERS
BHUNU
JA:
This
is an application for condonation of late noting of appeal and
extension of time within which to file the appeal in terms of r 31 of
the Supreme Court Rules, 1964.
The
parties were married but divorced in England. The court in England
issued a decree nisi
which the first respondent used to obtain an interdict in the local
High Court. The interdict barred the applicant from dealing in the
property known as No. 5 Reitfontein Close Highlands, Harare, which he
claims to be his sole property.
Aggrieved
by the court a
quo's
order, the appellant sought to appeal to this Court. He initially
filed his notice of appeal on time but the application was struck off
the roll with costs for want of compliance with r 29. The appeal was
fatally defective in that it did not state the date on which the
judgment appealed against was handed down, thereby prompting this
application.
The
taxed costs amounted to $7 545.25. (Seven
Thousand five hundred and forty-five dollars twenty –five cents).
At
the hearing Mr Mpofu
counsel for the first respondent raised a point in
limine
objecting to the continuation of the proceedings before the applicant
has settled the first respondent's wasted costs. He accordingly
moved for the proceedings to be stayed pending payment of the
outstanding wasted costs.
Mr
Girach
counsel for the applicant after taking brief instructions
acknowledged that his client owed the first respondent the taxed
costs. He however countered that his client is owed some untaxed
costs by the first respondent. He then proposed that the first
respondent's costs be set off against the applicant's untaxed
costs. When it was pointed out to him that a liquidated amount cannot
be set off against an illiquid amount he conceded the point but
countered that the respondent should execute against applicant's
property.
In
further argument he submitted that justice must be dispensed quickly
and fairly with due regard to the need to effect finality to
ligation. It was his submission that the first respondent should
effect execution for wasted costs awarded while the hearing proceeds
to finality on the merits.
He
pointed out that the court had the discretion whether or not to stay
the proceedings pending payment of the first respondent's taxed
costs. There is merit in that submission.
The
applicant's attitude that the respondent should proceed with
execution against his property evinces a mind set on piling wasted
costs on the respondent. I come to that conclusion because he has
advanced no reason why he cannot voluntarily sell his property to
liquidate his liability to the respondent without incurring further
costs for execution. That attitude gives credence to Mr Mpofu's
submission that it is unfair for the applicant to continuously bring
proceedings against the first respondent without paying respondent's
wasted costs awarded by the court a
quo.
Considering
that money may be hard to come by I held back delivering judgment in
this application to give the applicant time to pay the outstanding
wasted costs. I am in agreement with Mr Mpofu
that it would be manifestly unfair and unjust for the applicant to
continue piling proceedings on the 1st
respondent without first making good the wasted taxed costs he caused
the respondent to incur. In my considered view this may be meant to
wear down the respondent with costs.
It
is now more than 15 months since the applicant was granted the
opportunity to pay the respondent's wasted costs. If by now he has
not paid the respondent's wasted costs, proceeding with the hearing
in the absence of payment will cause the respondent serious prejudice
if not grave injustice.
In
the event that to date the applicant has not paid the respondent's
wasted costs, the application for stay of proceedings succeeds. I
note in passing that the order will not adversely affect the
respondent since the interdict granted by the court a
quo
operates against the applicant in favour of the respondent. Any
prejudice which the applicant may suffer arising from the stay of
these proceedings is self-inflicted.
It
is accordingly ordered that:
1.
The objection in
limine
be and is hereby sustained with costs.
2.
This application for condonation of late noting of appeal and
extension of time within which to appeal to this court be and is
hereby stayed until the applicant has paid the first respondent's
taxed costs in the court a
quo.
Magwaliba
& Kwirira,
the applicant's legal practitioners
Munangati
& Associates, incorporating
Goneso & Associates,
the 1st
respondent's legal practitioners.
