Urgent
Chamber Application
HUNGWE
J:
The
applicant seeks interim relief through the Chamber Book, couched in
the following terms:
“TERMS
OF FINAL ORDER
1.
The execution of the taxed costs allowed in Case No. HC953/15 by the
Taxing Officer Mr R Matangaidze be and is hereby ordered to be stayed
pending the determination of Application for Review of the Taxing
Officer's decision filed under Case No. HC953/15.
2.
Costs of suit shall be costs in the cause in the Application for
Review of the Taxing Officer's decision under Case No. HC10209/15.
INTERIM
RELIEF GRANTED
Pending
the application for Review of Taxing Master's decision under case
number HC953/15, the 1st and 2nd Respondents be and are hereby
ordered to stay execution and attachment of applicant's movable
property to satisfy the amount of taxed costs in Case Number
HC953/15.”
The
parties were involved in a long running dispute in which the
applicant appears to have earned the wrath of the courts and slapped
with an adverse order for costs on the turn. The first respondent
alleges that the applicant unreasonably refused to make payments of
certain funds held by it as a banker. The courts into which the suit
spilled found that the resistance to the claim was unreasonably
offered, resulting in several orders for costs against applicant.
The
first respondent alleges that the applicant has, to date, not paid
any amount in terms of the various orders for those costs.
In
this application, the parties appeared before the taxing officer of
this court on 23 October, 2015 at the behest of the first respondent.
Before the taxing officer, the applicant raised several objections
chief of which related to item 48 on the bill. That item related to
disbursement for fees paid to Advocate De Bloc, the first
respondent's lawyer in Belgium. Despite these objections, the
taxing officer allowed that item. In the end, the taxing officer
allowed costs on a party and party scale in the sum of US$439,546, 70
to the first respondent.
At
the taxation, the applicant indicated to the first respondent that it
intended to take the taxing officer's decision on review. On its
part, the first respondent proceeded to instruct the second
respondent to place under attachment the movable property on the
applicant's premises on 23 October 2015.
The
applicant filed an application for review of the taxing officer's
decision under case number HC10209/15 citing various irregularities,
especially the allowance of De Bloc's fees. In order to prevent
immediate execution of the writ, obtained by the first respondent,
the applicant filed the present application under a certificate of
urgency to stay the execution of the writ pending the determination
of the application for review.
On
24 October 2015 I issued an order staying execution pending the
determination of the present chamber application.
The
first respondent took two points in limine;
(i)
The first point taken by the first respondent is that the application
is deficient for lack of compliance with Rule 241(1) of the rules of
this court which governs chamber applications in that there is no
Form 29 as required. As such there is no urgent application before
the court.
(ii)
The second point in limine taken by the first respondent is that the
applicant has approached this court with dirty hands as it has not
paid any of the three or so bills of costs awarded against it.
Mr
Girach, for the applicant, argued that the first respondent raises
these points in limine in order to deflect the court from dealing
with the merits of the matter. He submitted that the issue before the
court was whether the item 48 in the bill of costs ought to have been
allowed. He further submitted that the applicant enjoyed bright
prospects in the proposed review application for the taxing officer's
decision allowing that item. In any event, first respondent did not
raise these points in limine in the opposing affidavit. In his
submission, points in limine should not impede proceedings
unnecessarily.
Whilst
it is correct that the form used by the applicant does not strictly
comply with Rule 241(1), I am of the view that the respondents have
not shown that they have suffered some prejudice which could not be
cured by an appropriate order for costs in opposing the application.
In
taking this view, I am cognisant of the fact that the courts do not
take lightly failure to comply with its rules. In this regard I
associate myself with the views expressed by Honourable Mafusire J in
Ordar Housing Development Consortium v Sensene & Ors HH-709-15.
As
for the dirty hands doctrine, the first respondent argued that this
court ought to refuse the grant of the relief sought as, for its
part, the applicant has not paid any of the bills of costs awarded
against it.
As
I understand it, the dirty hands doctrine is an equitable defence
that allows the defendant to defeat the plaintiff's claim against
it. It is a defence that bars relief to a party who has engaged in
inequitable behaviour such as fraud, deceit, unconscionability or bad
faith related to the subject matter of that party's claim.
The
nature of the conduct constituting lack of probity, or bad faith, in
the present matter is that the applicant has ignored paying that part
of the bill of costs which is undisputed nor has it made tender of
the same in these proceedings. The first respondent claims that there
are other bills of costs which the applicant has not paid up besides
the one subject of the present application.
Clearly,
it sounds unconscionable for this court to grant relief which, in
effect, serves to deprive a successful party of its dues in favour of
a party which has persistently and stubbornly refused to accede to
the other party's just claim. However, the onus lay on the first
respondent to show that indeed, there were such instances of bad
faith in respect of the subject matter of the present claim which
were grave or sufficient enough for this court to frown upon, by
declining relief to the applicant.
I
am unable to say that the first respondent has discharged that onus.
Had it done so, notwithstanding the countervailing constitutional
right to access to the courts urged by Mr Girach, I would have been
prepared to uphold this point. In the absence of sufficient proof of
such behaviour, I am reluctant to refuse giving consideration to the
merits of the application, thereby excluding applicant from this
court.
I
venture to suggest that for the future, such averments ought to be
part of the opposing affidavit so as to allow the applicant against
who the allegations are made, a right of reply.
Once
a prima facie proof of such behaviour is placed before the court, in
my view, on that principle, the court may fairly exclude relief to
the applicant.
In
conclusion, I must add that the courts are reluctant to exclude
parties from seeking legal recourse on the basis that they have not
complied with certain of its orders lest in the process more
fundamental rights may be infringed.
It
was for those reasons that I decided to proceed to hear the matter on
the merits, notwithstanding the points in limine raised on the first
respondent's behalf.
In
its founding affidavit, the applicant avers that it will suffer
irreparable harm if the present application is not granted. As such,
the applicant says that the matter must be heard ahead of others on
the roll. The applicant also believes that it has high prospects of
success in the review application in light of the “clear gross
irregularities rampant in the whole proceeding before the taxing
officer.” The presence of these high prospects of success, the
applicant argued, result in it enjoying a prima facie right. Since it
is the applicant who will suffer irreparable harm, it says that the
balance of convenience favour the granting of the relief it seeks.
On
the other hand the applicant says the first respondent will not be
prejudiced were the relief to be granted. The first respondent filed
papers in opposition to the application on the merits too. In the
opposing papers the first respondent did not raise any issue
regarding the question of urgency.
The
first respondent disputed the claim for set-off as a basis for the
applicant's refusal to refund it. This absence of any legal basis
to release the funds, according to the first respondent, was the
reason why an adverse order for costs was made against the applicant
throughout the various stages that the matter went through, from this
court up to the Supreme Court. Where a court has granted costs on
attorney and client scale, the litigant who has won the case is
indemnified of all expenses incurred in the prosecution and recovery
of its funds, so the first respondent argued.
A
matter qualifies to be heard on an urgent basis if the relief being
sought will be rendered academic or if there would be irreparable
prejudice to the applicant if that relief is not granted.
The
facts of the matter are that the applicant is a commercial bank. It
has apparently been refusing to release funds belonging to the first
respondent, a foreign corporation domiciled in Belgium, on flimsy
grounds. It lost no less than five suits at the behest of the first
respondent which had to hire a Belgian law firm to initiate its
claim. That claim was handled by a Zimbabwean law firm. That law firm
included fees or disbursements or charges which were incurred in the
whole process by the need to engage a Belgian law firm in Brussels.
After all was said and done, the costs were taxed. The applicants
were dissatisfied by the taxing officer's decision allowing a
princely sum of US$403,744,70 which appeared under item 48 of the
taxed bill titled “To Advocate De Bloc's fees.”
By
reason of Order 38 Rule 307, the Taxing Officer may allow all such
costs, charges and expenses as appear to him to have been necessary
or proper for the attainment of justice or for defending the rights
of any party.
The
applicant contends that the Taxing Officer may not allow costs which
appear to him to have been incurred or increased through
over-caution, negligence, or mistake, or by payment of a special fee
to another legal practitioner, or special charges and expenses to
witnesses or other persons or by other unusual expenses.
The
first respondent contends that but for the applicant's
intransigence, it was forced to incur the costs it did. This,
according to the first respondent, is the reason why applicant was
slapped with punitive costs throughout the history of the matter.
The
first respondent views the present application as another instance of
abuse of process by applicant. The first respondent believes that had
applicant paid its costs the present application would have been
averted.
The
applicant claims that its movable assets which have been attached, if
removed and sold in execution, would bring its banking business to
its knees. On that basis, the applicant contends that it is entitled
to an interim interdict.
It
is an exercise of inherent jurisdiction to prevent abuse of process
which reposes in superior courts to stay proceedings. Before an
applicant for an interim interdict can succeed, he or she must
establish the essentials of that interdict, namely;
(a)
a right, which though prima facie established is open to some doubt;
(b)
a well-grounded apprehension of irreparable injury;
(c)
the absence of any other ordinary remedy; and
(d)
a balance of convenience favouring the grant of the interdict.
See
Setlogelo v Setlogelo 1914 AD 221 at 227; Boadi v Boadi 1996 (2) ZLR
378; Tribac (Pvt) Ltd v Tobacco Industry & Marketing Board 1996
(2) ZLR 52 (S) at 52; Bozimo Trade and Development Co (Pvt) Ltd v
First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (H) at
9F-G.
The
applicant has relied on the constitutional right to protection of
private property in its submission in respect of the first
requirement.
I
am, in any event, satisfied that an entitlement to approach the
courts for any relief in whatever shape, form or manner establishes a
prima facie right to that party. Therefore, applicant has not met the
first requirement.
As
for the second and third requirements, I proceed to consider them as
follows;
The
principles that govern an application for stay of execution were set
out in the case Mupini v Makoni 1993 (1) ZLR 80 (SC) at 83 as
follows:
“Execution
is a process of the court, and the court has an inherent power to
control its own process and procedures, subject to such rules as are
in force. In the exercise of a wide discretion the court may,
therefore, set aside or suspend a writ of execution or, for that
matter, cancel the grant of a provisional stay. It will act where
real and substantial justice so demands. The onus rests on the party
seeking a stay to satisfy the court that special circumstances exist.
The general rule is that a party who has obtained an order against
another is entitled to execute upon it. Such special reasons against
execution issuing can be more readily found where, as in casu, the
judgment is for ejectment or the transfer of property, for in such
instances the carrying of it into operation could render the
restitution of the original position difficult. See Cohen v Cohen (1)
1979 ZLR 184 at 187C; Santam Ins Co Ltd v Paget (2) 1981 ZLR 132 (G)
at 134G-135B; Chibanda v King 1983 (1) ZLR 116 (H) at 119C-H; Strime
v Strme 1983 (4) SA 850 (C) at 852A.”
The
headnote in Santam Ins Co Ltd v Paget (2) 1981 ZLR 132 reads:
“A
person who seeks a stay of execution of a Judgment must satisfy the
court that, if the Judgment be not stayed, injustice will be caused
to him or that he may suffer irreparable harm or prejudice; this onus
is not easy to discharge where the Judgment it is sought to suspend
sounds in money and in such cases execution will as a general rule be
allowed to issue.”
GUBBAYJ
(as he then was) continues at p135H-136B thus:
“As
observed by GOLDIN J, as he then was, in Cohen v Cohen (1), 1979 RLR
184 (GD); 1979 (3) SA 420 (R) at 423B-C, the court enjoys an inherent
power, subject to such rules as there are, to control its own
process. It may, therefore, in the exercise of a wide discretion,
stay the use of its process of execution where real and substantial
justice so demands. See also Graham v Graham, 1950 (1) SA 655 (T) at
658.
The
onus rests on the party claiming this type of relief to satisfy the
court that injustice would otherwise be caused him or, to express the
proposition in a different form, of the potentiality of his suffering
irreparable harm or prejudice. That task is by no means easy where,
as in the present case, the Judgment it is sought to suspend sounds
in money, for the giving of effect to it, unlike with orders for
ejectment or the transfer of property, does not render difficult any
restitution that may have to be made.
See
Skinner v Shapiro (11), 1924 WLD 174 at 176; Graham v Venter, 1924
OPD 46; Zaduck v Zaduck (2), 1965 RLR 635 (GD) at 636G-H; 1966 (1) SA
550 (SR) at 551E.”
The
above cases establish the following principles;
(1)
Where real and substantial justice demand it, this court has
jurisdiction to stay execution.
(2)
The onus rests on the party seeking a stay of execution to satisfy
the court that special circumstances exist for such an order.
(3)
Where the judgment sounds in money and restitution is possible in
those circumstances special circumstances may not exist.
(4)
Generally where judgment is for the payment of money execution will
be allowed.
The
question that arises is whether in the circumstances of this case it
would be unjust to refuse to order a stay of execution of a judgment
sounding in money, pending the determination of an application for
review of the decision of the Taxing Officer. Put differently, the
issue before me is whether the granting a stay of execution will be
in the interest of real and substantial justice.
In
determining this issue it will be clear that the applicant need to
satisfy me that there is a reasonable apprehension of irreparable
harm and that there is no other satisfactory remedy besides a stay of
execution.
As
pointed out, the general rule is that where a judgment sounds in
money, execution must proceed as restitution is always possible
should the applicant succeeds in setting aside the judgment, unless
of course there are special circumstances militating against the
principle.
In
the present matter, could the fact that the review application which
seeks the setting aside of an item allowed at taxation constitute a
special circumstance? In other words, is the fact that applicant
objected to an apparently unusually high item in the bill of costs
constitute such a special circumstance as would lead to irreparable
harm or prejudice?
It
is pertinent at this point to consider the prospects of success of
the review application since, if such prospects exist, this may tilt
the scales in favour of a finding that the balance of convenience are
in favour of the applicant.
I
turn to consider the prospects of success of the application for
review of the decision of the Taxing Officer.
In
S & B v The Taxing Officer 1986 (1) ZLR 41 (H) at 47 Smith J
stated:
“The
question as to when the court will interfere with rulings made by the
taxing officer in the exercise of the discretion he enjoys when
taxing bills of costs was considered by Millin J in Wellworths
Bazaars Ltd v Chandlers Ltd & Ors 1947 (4) SA 453 (T). At p 457 -
8 the learned judge said:
'The
law, as I conceive it to be, is that in general the discretion of a
Taxing Master will not be disturbed unless it is found that he did
not exercise a proper discretion, for example, by disregarding
factors which were proper for him to consider or by considering
matters which it was improper for him to consider, or by giving a
ruling which the court can see no reasonable person would have given.
That
is the general principle. But that principle has had engrafted upon
it something else, and that is this: There is a certain class of case
where the point in issue is a point on which the Court is able to
form as good an opinion as the Taxing Master and perhaps, even a
better opinion. Examples of that class of case are these: First of
all, the question whether the employment of more than one counsel was
justified in the case. It is apparent that a Judge is in a better
position to decide such a matter than the Taxing Master could be.
Another example is when questions of relevancy of evidence arise. The
Taxing Master may disallow the costs of an affidavit because he is of
the opinion that the affidavit was not relevant to any issue in the
case. It is clear that the Judge must be in a better position to
decide that point than the Taxing Master.
So
there has developed what I call a graft on the main principle.
The
court will feel it its duty to correct the Taxing Master and
substitute its own opinion for his opinion when the matter is one in
which the court is at least as well able to judge as the Taxing
Master is.'”
These
basic rules regarding the correct approach in matters of that nature
were repeated as follows by the South African Constitutional Court in
Ferreira v Levin NO and Others 1996 (2) SA 621 (CC) at 624B—C:
“The
Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first being that
the award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer, and the second that the
successful party should, as a general rule, have his or her costs.
Even
this second principle is subject to the first.
The
second principle is subject to a large number of exceptions where the
successful party is deprived of his or her costs. Without attempting
either comprehensiveness or complete analytical accuracy, depriving
successful parties of their costs can depend on circumstances such
as, for example, the conduct of parties, the conduct of their legal
representatives, whether a party achieves technical success only, the
nature of litigants and the nature of proceedings.”
It
seems to me that in the present matter even if the belief that the
taxing officer erred in allowing item 48 is reasonably held by the
applicant, that fact alone does not entitle the applicant to succeed.
What
must be considered in an application of this nature is whether there
exists special circumstances as would justify a departure from the
general rule that the party seeking to execute a judgment sounding in
money ought to be allowed to do so, since should the application for
review succeed, it is not difficult to restore the previous position.
In any event the discretion of the Taxing Officer may not be lightly
interfered with in the review application, unless it is shown that
the court would have been better placed to decide the issue to be
decided by the taxing officer.
In
any event, the applicant admits that it has not tendered the
undisputed bills.
Even
if I am wrong in so holding, I am of the considered view that the
balance of convenience would have favoured the granting of the relief
sought had the applicant tendered payment of the undisputed part of
the bills in the hearing of the present matter. The applicant could
have made payment into court of the disputed amount to demonstrate
its bona fides.
It
did not.
The
applicant submitted that the attached movable property would result
in the closure of its business operations as it contained certain
information critical to its business operations.
The
applicant did not demonstrate the nature of those assets and why they
are so critical in its operations. I am left to assume the nature of
the items, their capability in crippling applicant's operations and
so on.
As
the case law indicate, applicant must demonstrate that special
circumstances exist which would entitle it to an order of stay of
execution of a judgment sounding in money. The fact that data loaded
computers have been attached in execution, in my view, would not
constitute a sound basis upon which the writ could lawfully be
defeated, nor would this fact move the court to stay execution.
The
respondent is a commercial bank. It would have been aware that its
attitude in mounting meritless opposition to applicant's claim
might lead to certain liabilities and consequently make appropriate
provision for such.
The
purpose of an award of costs to a successful litigant is to indemnify
him for the expense to which he was been put through having been
unjustly compelled to initiate or defend litigation, as the case may
be. Owing to the operation of taxation, however, such an award is
seldom a complete indemnity; but that does not affect the principle
on which it is based. See Texas Co (SA) Ltd v Cape Town Municipality
1926 AD 467 at 488.
Thus,
notwithstanding the fact that a party may seek a review of the taxed
bill of costs, before it can succeed in an application for a stay of
execution, that party must demonstrate that it will suffer
irreversible or irreparable harm should the stay not be granted.
As
shown above, the general rule is that a party should be allowed to
execute a judgment sounding in money unless there are special
circumstances militating against it.
In
our view, there are no special circumstances such as would motivate
this court to exercise its discretion in favour of the applicant.
Consequently, the application is dismissed with costs.
Mutangamira
& Associates, applicant's legal practitioners
Venturas&
Samukange, 1st respondent's legal practitioners
