After
rendering judgment in HH281-16, whereby the applicant and the first
respondent sought referral of certain questions to the Constitutional
Court, I set the urgent chamber application filed by the applicant
for hearing.
To
give a brief background, the urgent chamber application was filed on
25 February 2016. The first respondent filed its Notice of Opposition
on 29 February 2016. Both parties proceeded to file Heads of Argument
in relation to the urgent chamber application. The applicant then
filed the Chamber Application For Referral To The Constitutional
Court in terms of section 175(4) of the Constitution of Zimbabwe. His
reason for filing the application is as explained in paragraph 2.6,
particularly 2.6(a), of his Heads of Argument filed on 16 May 2016;
“Applicant
was prepared to argue the urgent chamber application that he had
filed up until first respondent attached to its opposing papers a
letter which had the effect of undermining the application. It was
from that development that the constitutional angle arose.”
In
the meantime, the urgent chamber application remained in abeyance
until I then set it down for hearing…,.
At
the hearing, and after a lot of heckling, counsel for the applicant
indicated that the applicant intended to file a constitutional
application challenging the refusal to refer the applicant's
question to the Constitutional Court. On being asked how the
contemplated application would impact on
the Urgent Chamber Application, he indicated that it would have a
direct impact on the current proceedings.
What
the applicant was raising with the Constitutional Court was a
jurisdictional issue i.e. whether I could hear the substance of the
matter. It was the applicant's absolute right to approach the
Constitutional Court to have that question determined. On whether the
matter remained urgent, under the circumstances, he submitted that
the matter be removed from the roll of urgent matters; it goes to the
roll of ordinary matters and to be related to as such. He relied, for
this proposition, on Phenias Mariyapera v Eddie Pfugari (Pvt) Ltd &
Anor SC03-14 and Madza & Others v The Reformed Church in Zimbabwe
Daisufield Trust & Others SC71-14. He said the two cases held
that when a matter is removed from the roll of urgent matters, it is
not thrown out. It moves, by operation of law, to the roll of
non-urgent matters.
Counsel
for the first respondent, in response, indicated that the first
respondent was opposed to the application to have the matter referred
to the roll of ordinary applications. He did not accept the position
of the law as put forward by counsel for the applicant. There had
been eight hearings on an urgent basis, and, suddenly, the applicant
now wants to be referred to the ordinary roll. He requested for an
opportunity to file Heads of Argument on the procedure adopted by the
applicant and seek punitive costs as he believed that the applicant
was abusing the legal process. His request was granted and he filed
the Heads of Argument.
At
the resumption of the hearing Mr Mpofu withdrew from the matter and
Mr Hashiti took over. It was apparent that the first respondent was
not opposed, per se, to the procedure adopted by the applicant but
was concerned about the issue of costs. Mr Hashiti, who now appeared
for the applicant, advanced two points in support of the applicant's
position regarding the issue of costs. He submitted that since the
substantive matter is still in issue, the question of costs is to be
reserved for the final determination of the matter. He submitted that
this course would not dis-entitle any party of its costs. It simply
defers the question to be determined on the return day. He further
submitted that the practice of this court has always been that in
seeking interim relief, costs are always reserved for determination
on the return day. The second point was that the matter has not been
referred to the opposed roll on account of lack of urgency. The
matter is being removed from the urgent roll on account of court
processes that has an effect of stalling the determination of the
urgent matter.
Counsel
for the first respondent, in response, submitted that the first and
second respondents were not at court voluntarily but were brought by
the applicant on a certificate of urgency drawn by the applicant's
legal practitioners. It was a smoke and mirrors argument that urgency
only falls away when there is a finding by the court. The conduct of
the applicant shows lack of sincerity in persuing the matter on an
urgent basis. The parties were entitled to a determination of some
sort regarding the urgent application. He further submitted that
should the court refer the matter as prayed, an order of costs, on a
legal practitioner client scale, ought to be made, for wasted costs.
As
regards the point that the matter cannot be heard pending the
determination of the constitutional application, counsel for the
first respondent made the following three points;
(i)
The constitutional application is an ordinary application. It does
not seek interim relief nor does it request a stay of the present
proceedings.
(ii)
There is no interim order that has been granted by this court,
therefore, there is no return day to talk of. The fate of the matter
is completely open.
(iii)
The applicant wishes to continue bringing parties to court without
any consequences.
He
concluded his submissions by praying that the applicant pays the
wasted costs.
Mr
Hashiti, in reply, submitted that there is an interim order that the
matter be referred to the opposed roll. The return date is when the
matter is heard on the merits.
What
to do with a matter that has been deemed to be not urgent has now and
again presented problems in this court. The position is now settled
and there might be need to repeat it for the benefit of those who
might still have problems on how the proceed. The issue was clearly
spelt out in Madya & Others v The Reformed Church in Zimbabwe
Daisufield Trust & Others SC71-14 where ZIYAMBI JA…, stated the
following;
“However,
having concluded the matter was not urgent, the proper course would
have been to remove the matter from the roll of urgent matters to
allow the appellants, if so minded, to place the matter before the
High Court on the ordinary roll for determination.
The order of dismissal was improper in the circumstances.”…,.
Further
down in the judgment, and after having dealt with the contradiction
in terms to dismiss a matter on the twin bases that the matter is not
urgent and that the applicant has no locus standi and the effect of
such dismissal she, again, made the point;
“…,.
The effect of the dismissal on the latter basis (lack of locus
standi) is that the applicant is put out of court and is deprived of
his right to have the matter properly ventilated in a court
application or trial. Where,
however, the matter is struck off the roll for lack of urgency the
applicant, if so advised, may place the matter on the ordinary roll
for hearing.”…,.
The
underlined phrases seem to suggest that the option is left to the
applicant to chart his new course of action. If referral to the
ordinary roll was by operation of the law, as suggested by Mr Mpofu,
the court would have said so.
In
casu, it is not the court that has deemed the matter not urgent.
Instead, it is the applicant who has elected to remove the matter
from the roll of urgent matters and have it referred to the ordinary
roll. The first respondent does not oppose the course suggested by
the applicant. It has, however, contended that the applicant must do
so against a sanction in the form of an appropriate order of costs in
relation to the urgent application.
The
issue for determination is whether the applicant should pay costs for
the urgent application and at what scale.
In
casu, the applicant filed an application whereby his legal
practitioners certified the matter as urgent. For reasons which I
found, in HH281-16, to be “utterly hopeless and without foundation
in the facts on which they are purportedly based”, the appellant
put that matter in abeyance and pursued, and is still persuing, other
processes. Both processes i.e. the Chamber Application for Referral
and the Constitutional Court Application challenging the refusal of
the referral, were filed as ordinary applications and not as urgent
applications. He has now made a u-turn and prays that the urgent
application be removed from the urgent roll in view of the
developments surrounding the matter, which include the fact that the
presiding judge has no jurisdiction to deal with the matter. The
respondents filed papers and attended court on a number of occasions
to defend themselves in the urgent application.
The
applicant is dominis litis and is free to elect to proceed in
whatever way he wants to protect his rights, but, he must not, in the
process, unnecessarily drag other parties to court. Mr Hashiti sought
to argue that since this was not a court-sanctioned removal, the
issue of costs should be deferred for determination on the return
day.
As
was correctly pointed out by counsel for the first respondent, there
will be no return date in this matter as I am not being asked to
issue a provisional order. The applicant might decide not to proceed
with the matter and the application might be deemed to the abandoned
in terms of Practice Direction No.3/14. If the applicant is so minded
to set it down on the ordinary roll, the court will be dealing with
the substantive matter and not the issue of urgency. In any event, it
should not matter whether it's a court sanctioned removal or party
instigated. The fact of the matter is that the issue of urgency is no
longer before the court and the court should deal with the issue of
costs relating to the urgent mater at that stage. In my view, what
the applicant has done is to take away the jurisdiction of the court
to relate to the urgent matter. It is tantamount to a withdrawal of a
matter.
In
Patterson Timba v Reggie Saruchera N.O. and Others HH461-15…, I
stated the following;
“In
dealing with the issue of costs on withdrawal of proceedings
specifically, AC CILLIERS in the Law of Costs, 2nd
ed p121 had this to say:
'Where
a litigant withdraws an action or in effect withdraws it, very strong
reasons must exist why a defendant or respondent should not be
entitled to his costs. A plaintiff or applicant who withdraws his
action or application is in the same position as an unsuccessful
litigant because after all his claim or application is futile and the
defendant or respondent is entitled to all costs caused by the
institution of proceedings by the withdrawing party. In such a
case it is not necessary to go into the merits: there is a crucial
difference between the position of an applicant settling his case on
the merits and then asking the court's ruling on costs and the
position of an applicant withdrawing his claim and thereafter
attempting to avoid an order of costs against him.'”…,.
Unfortunately,
the applicant, has failed to advance cogent reasons why he should not
be mulcated with the respondents wasted costs in defending the urgent
application.
The
next issue would be the scale of costs.
On
this point, CHEDA J in Mahembe v Matambo 2003 (1) ZLR 149 (H)…, had
this to say:
“Our
courts will not resort to this drastic award lightly, due to the fact
that a person has a right to obtain a judicial decision against a
genuine complaint. It is, therefore, essential that the courts only
award such costs in situations where it is clear that the losing
litigant was not genuine in the pursuance of a stand in the
litigation process. RUBIN L, Law of Costs in South Africa, Juta &
Co (1949) 190, classified the grounds upon which would the court be
justified in awarding the costs as between attorney and client:
1.
Dishonest conduct either in the transaction giving rise to the
proceedings or in the proceedings.
2.
Malicious conduct.
3.
Vexatious proceedings.
4.
Reckless proceedings.
5.
Frivolous proceedings.”
As
I have already alluded to, the applicant brought the respondents to
court on an urgent basis. He has elected to withdraw the
determination of the matter on an urgent basis from the court - for
no good cause. His conduct leaves one in doubt whether he was sincere
when he filed the urgent chamber application. The respondents have
incurred unnecessary expenses in defending themselves. They have to
be effectively indemnified by an order of costs on a higher scale.
In
the result, I make the following order;
(1)
The matter is removed from the urgent roll.
(2)
The applicant to pay the first and second respondents costs on an
attorney client scale.
