IN
CHAMBERS
MAKARAU
JA:
This
is a review of taxation in terms of Rule
56 of the Supreme Court Rules 2018.
The
Rule provides that any party aggrieved by the taxation of a bill of
costs shall give notice of review setting out his or her grounds of
objection. Thereafter the matter shall be set down before a judge in
chambers.
I
will refer to the parties as applicant, first and second respondents
respectively for convenience.
The
applicant raised three grounds of objection;
(i)
He
alleged firstly, that the first respondent had erred in denominating
the taxed bill in United States dollars in light of the provisions of
SI 33 of 2019.
(ii)
Secondly,
he argued that the first respondent erred in allowing second
respondent's travelling expenses from Bulawayo to Harare when
second respondent is resident in Harare.
(iii)
Finally,
he argued that the first respondent erred in allowing costs for legal
services rendered to the second respondent in contravention of the
Legal Practitioners Act [Chapter
27:07].
The
second respondent opposed the review.
In
the main, she contended that the parties agreed to the bill as well
as to two other bills relating to other matters. The draft bill
agreed to in casu
was simply presented to the first respondent for his endorsement. She
further argued that it was quite proper for the parties to agree to a
bill denominated in United States dollars at the time of taxation as
the prohibition against charging for goods and services in foreign
currency came into force after 28 September 2019 when S.I. 213/19 was
published.
In
compliance with Rule 56(3), the Registrar filed a report.
The
report was compiled by the first respondent. It states that when the
parties appeared before him, they advised that they wanted to discuss
the bill between themselves before engaging him. When they finally
did, they presented to him a bill for endorsement. The issue of the
denomination of the bill in United States dollars was never discussed
with him.
I
note at this stage that it was this endorsement of the bill by the
first respondent that has given rise to this review.
The
applicant regarded the endorsement, and correctly so in my view, as
adoption of the bill by the first respondent.
The
first respondent cannot distance himself from the denomination of the
bill in United States dollars. By affixing his signature to the draft
that was presented to him and lending the authority of his office to
the draft, he effectively passed the bill under his hand.
For
this reason, both parties regarded the bill as having been taxed by
the first respondent hence, the second respondent took out a writ of
execution to recover the amount of the taxed costs.
The
issue that falls for determination in this review is whether the bill
of costs as taxed in this matter is proper.
The
court is very slow to interfere with the exercise of the Taxing
Officer's discretion. It will not readily do so unless it is
satisfied that the Taxing Officer acted on some wrong principle or
did not exercise his or her discretion at all.
The
bill was presented for taxation on 8 July 2019. By that date, S.I. 33
of 2019 was part of the law, having been published on 22 February
2019.
The
statutory instrument introduced the RTGS dollar as a currency and
legal tender, and placed it on par with the bond note and the United
States dollar.
Although
not of direct relevance to the determination of this review, S.I.33
of 2019 also decreed that all assets and liabilities denominated in
United States dollars prior to the publication date were to be deemed
to be in RTGS dollars at a rate of one-to one with the United States
dollar. It also declared that every enactment in which an amount was
stated in United States dollars was to be construed as stating the
amount in RTGS dollars, at parity with the United States dollar.
In
addition and more relevant to the determination of this matter, at
the time the draft bill was presented for taxation, S.I. 142 of 2019
was also in force, having been published on 24 June 2019. Whilst S.I
33 of 2019 introduced the RTGS dollar as legal tender alongside the
bond note and other currencies, S.I 142/19 made the local currency as
set out in S.I.33 of 2019 the sole legal tender in all transactions
in Zimbabwe.
The
second respondent argued that it was not illegal to have the costs
awarded in United States dollars where the parties had agreed to the
amount being denominated in the currency of their choice. The
illegality of the denomination of the bill in United States dollars
only arose on 28 September 2019, she argued, when S.I.213/19 was
published. In her view, it was this instrument that made it illegal
to sell goods and services in any other currency save the local
currency.
With
respect, the second respondent is in error. S.I.213/19 amended the
Exchange Control Act to enforce the exclusive use of the Zimbabwean
dollar in domestic transactions by creating civil offences and
penalties. The S.I. merely provided sanctions for contravening the
law that had decreed the local currency as the sole legal tender in
all domestic transactions. The law that declared the local currency
as the sole legal tender in all domestic transactions was S.I.142/19
and not S.I. 213/19.
In
light of the prevailing legal position at the time the bill was
taxed, its denomination in United States dollars was in contravention
of the law. The first respondent therefore erred in passing under his
hand a bill that contravened the law.
Accordingly,
and on this basis alone, the bill cannot stand. It is the settled
position at law that anything done in direct conflict with a statute
is a nullity.
In
making the above finding I am aware that the second respondent
averred that the denomination of the bill in United States dollars
was with the consent of the applicant.
Such
consent, which is disputed, would have been of no import even if
proven to be true. The parties could not by their consent to act
against the clear letter of the law, confer legality upon a bill of
costs denominated in United States dollars.
It
is therefore my finding that the bill of costs taxed in SC211/19
should be set aside for the reason that it was in contravention of
the law.
Whilst
the above finding disposes of the proceedings before me, there is one
issue that I wish to advert to briefly and in passing.
It
is common cause that the second respondent was a litigant in person
in Case No. SC211/19. The bill under review for that matter indicates
that the second respondent received legal advice from an entity
called T. S. Labour Specialists.
By
the second respondent's own admission, this entity is not a firm of
registered legal practitioners. It is therefore not entitled to
charge fees for legal services rendered.
The
bill of costs is therefore also improper to the extent that it
purports to compensate the second respondent for the outlays she made
to this entity as fees for legal services rendered.
I
am satisfied that the applicant has made a case for the setting aside
of the bill of costs purportedly taxed in SC211/19. It will be so
ordered.
In
view of the fact that the bill was erroneously drawn up and
denominated in United States dollars, I cannot make an order
remitting it to the first respondent for fresh taxation. If so
inclined and advised, the second respondent may draw up a fresh bill
and submit it for taxation.
The
applicant has prayed for costs. I have no basis for denying him these
as costs ordinarily follow the cause save where in the discretion of
the court, a different order of costs is deemed just and appropriate.
There are no circumstances in this matter justifying a departure from
the general position.
On
the basis of the foregoing, I make the following order:
1.
The bill of taxed costs in SC211/19 is hereby set aside.
2.
The
second respondent shall bear the applicant's costs of review.
