DUBE
J:
This
is an application for costs. At the hearing of this matter, the
applicant withdrew its urgent application without an offer of costs.
The
first respondent requested the court for an order of costs resulting
in the question of costs was reserved pending the filing of heads of
argument on the subject by both parties.
The
first respondent, seeks an order of costs on the legal practitioner
client scale alternatively costs on the legal practitioner-client
scale de bonis propriis.
The
brief background to this application is as follows:
The
applicant provides a container depot for the storage, detention,
unpacking and examination of containers or the contents of containers
or for the delivery of importers of contents of containers after the
contents have been duly entered. The applicant is a licensed
container depot. The second respondent was cited as an interested
party having arranged transport of the consignment of sugar which
forms the subject matter of this application.
The
third and fourth respondents are the minsters responsible for issuing
permits and licences for importation of goods into the country.
The
fifth respondent is the Commissioner General of the Zimbabwe Revenue
Authority, the authority responsible for the administration of the
Customs and Excise Act [Chapter 23:02].
Between
March and October 2014 the applicant received containers containing
sugar and other goods belonging to the first respondent. The rest of
the goods were cleared leaving containers of sugar. The first
respondent was required to obtain a licence and permit from the third
and fourth respondents, pay import duty to the fifth respondent and
clear the goods and pay the applicant's storage and handling
charges.
The
applicant averred that the first respondent had failed to obtain the
necessary licence and permit to allow the importation of the sugar
held by the applicant.
The
applicant submitted that the first respondent's licence from the
third respondent for the importation of the sugar into Zimbabwe was
to expire on 24 September 2005. It contended that sugar is a
perishable and its value was continuing to deteriorate as each day
passed.
On
15 September 2015 the applicant filed an urgent chamber application
seeking an order to compel the first respondent to pay for licences,
permits and import duty to the third to fifth respondents to enable
the first respondent to clear and remove sugar stored at the
applicant's premises. In the event of the first respondent's
failure to do so, the applicant sought an order compelling the third
and fourth respondents to grant to the applicant the necessary
permits and licences entitling the applicant to import the sugar into
Zimbabwe, sell the sugar and pay the fifth respondent out of the
proceeds of the sale and recover its storage costs.
The
court initially declined to deal with the application on the basis
that it was not urgent and only agreed to entertain the application
after an appeal by the applicant.
At
the hearing, the court commenced hearing a preliminary point on the
urgency of the matter.
The
applicant withdrew the application midstream after the first
respondent disclosed that it had a licence and a permit for the
importation of the sugar and had paid the fifth respondent for the
clearance of the sugar.
The
applicant did not make a tender of costs.
The
first respondent asks for costs on the basis that the matter was
never urgent and hence the court's decision not to treat it as not
urgent, the matter only having been set down after the applicant had
pleaded with the court for a hearing.
The
first respondent maintained that the matter was not urgent and was
devoid of any merit leading to a withdrawal by the applicants.
The
first respondent avers that the import licence it holds had not
expired and it was not consulted to ascertain the status of goods
before the urgent application was made. That otherwise the
application ought not to have been filed.
The
applicant defends this application.
The
applicant took a point in limine. It takes issue with the first
respondent's failure to file heads of argument by the date
appointed by the court.
The
applicant argued that the first respondent having breached the order
of the court ought to have sought condonation of its breach. The
applicant urged the court, to expunge the first respondent's heads
of argument from the record for failure to make an application for
condonation.
The
applicant maintains that ultimately, there is no application for
costs before the court.
The
applicant seeks costs on the basis that it was successful in this
application.
On
the merits, the applicant took issue with the respondent's failure
to advise it and the court of the fact that it had since paid the
duty and licences concerned when the application was set down for
hearing.
The
applicant further contended that the reason why the applicant
withdrew its application is because it had been successful and that a
court order was no longer necessary. The court was urged to take the
view that the applicant was successful in this application.
On
the issue of costs, the applicant submitted that there is no rule of
law that a party withdrawing an application pays the other side's
costs.
The
applicant contended that if a party withdraws an application because
the other party complied with the order sought, then it is successful
and can recover its costs.
The
applicant submitted that the first respondent has failed to justify a
claim for either costs on a higher scale or costs de bonis propriis.
The
applicant prays for an order of costs on the ordinary scale against
the first respondent. The order of the court was not obeyed.
The
first respondent requested and was ordered to file its heads of
argument by 30 September 2015 and only did so on 12 October 2015.
The
filing of the heads was not subject to the filing of the notice of
withdrawal was filed. The first respondent's explanation in its
heads that it did not file heads on time because the applicant had
not filed a formal notice of withdrawal therefore has no basis as no
such pronouncement was made by the court.
The
respondent is indeed in breach of the court's order and has fallen
foul of the rules.
The
first respondent has not applied for condonation of the late filing
of the heads of argument.
A
party who fails to comply with an order of the court to file heads of
argument within a stipulated date is expected to apply for
condonation of the late filing of the heads of argument.
The
respondent has failed to ask for condonation of the late filing of
its heads of argument and in the end, there is no explanation for the
delay in filing the heads of argument.
The
respondent was advised that the applicant was taking issue with the
late filing and advised to seek condonation. The respondent has done
nothing.
It
is difficult for the court to condone the late filing without having
been asked to do so by the offending party. This error is fatal to
its application. The heads of argument are not properly before the
court.
The
respondent's heads are expunched from the record.
The
effect of this on the applicant's request for costs made at the
hearing is simply that there is no argument on the costs requested.
I
am still required to consider the question of costs.
Any
costs, of whatever nature are not merely for the asking and require
to be justified.
The
approach to take in determining the issue of costs was discussed in
Nhari v Public Service Commission 1998 (1) ZLR 574 (HC) at p583. The
court quoted the following except from Fripp v Gibbon & Co 1913
AD 353 per De Velliers JP as follows:
“Questions
of costs are always important and sometimes difficult and complex to
determine, and in leaving the magistrate discretion, the law
contemplates that he should take into consideration the circumstances
of each case, the conduct of the parties and any other
circumstances….. and if he does this and brings his judgment to
bear upon the matter and does not do so capriciously or upon a wrong
principle I know of no right on the part of a court of a court of
appeal to interfere with the honest exercise of his discretion”.
Another
case in point is Kruger Bros and Wasserman v Ruskin 1918 AD 63 @ 69
where the court said the following:
“The
rule of our law is that all costs unless expressly enacted are in the
discretion of the judge. His discretion must be judicially exercised
but it cannot be challenged taken alone and apart from the main order
without his permission”.
A
court assessing the question of costs is required to take into
account all the relevant factors.
The
subject of costs is always in the discretion of the court. The court
has a discretion in considering whether any costs are payable to any
party. If it decides to make an award of costs, it is usually guided
by the general rule that the unsuccessful party pays the costs of the
successful party. The court's discretion is required to be
exercised judicially. The court will not allow costs that have been
unreasonably incurred. The court also has to be satisfied that the
costs sought are payable by one party to another. The court must, in
determining which party to award costs to and the appropriate scale
of costs to impose have regard to -
(a)
the conduct of the parties before and during the proceedings;
(b)
whether a party has been wholly or partly successful in his case;
(c)
whether the other party has offered to settle the matter;
(d)
any other pertinent circumstances.
Costs
are not merely there for the asking.
With
regards costs following a withdrawal, the general rule is that a
party may withdraw any proceedings before they have been set down and
where he does so after set down of the matter, he may do so with the
consent of the other side or with the leave of the court. He is
expected to file formal a notice of withdrawal and make a tender of
costs.
In
no consent to pay costs is embodied in the notice of withdrawal, the
other side may apply to court for an order of costs. See The Civil
Practice of the Superior Courts of South Africa 5th ed at p749;
Moodley v Moodley [2009] ZAFSHC 61; Protea Assurance Co Ltd v Gamlase
and Ors 1971 (1) SA 460.
The
author AC Cilliers in The Law of Costs, 2nd ed on p121 states as
follows on withdrawals:
“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.....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 cost as against him.''
See
also Protea Assurance Co Ltd v Gamlase and Ors (supra) where the
court relied on the case of Germishuys v Douglas Besproeiingsraad
1973 (3) SA 299, for the proposition that it is only in exceptional
circumstances that a party that has been put out of pocket by having
to oppose a matter will be denied all the costs.
My
understanding of the correct legal position is that where a party
withdraws his application or action, he is expected to make a tender
of costs. It is only in exceptional circumstances that a respondent
will be deprived of costs.
A
party withdrawing an action or application may only be entitled to
costs where 'very strong reasons' have been shown to exist.
Where
a party has been wholly or partly successful in its claim, this fact
may constitute very good reasons for an entitlement to costs.
The
respondent may also be deprived of costs because of his conduct or
fault on his part.
The
conduct of the applicant in this case was above board. I have not
been able to find fault with the applicant's conduct in this
application.
When
this matter was placed before me, I ruled that the matter was not
urgent. The fact that the court initially refused to entertain the
matter does not favour the first respondent. The applicant cannot be
penalised for having its application declined on the first occasion
when one has regard to the circumstances of this case.
The
application was subsequently set down following an appeal from the
applicant.
Once
the court decided to set down the matter for hearing, the issue of
the urgency of the matter remained in abeyance.
At
the hearing of the matter the first respondent challenged the urgency
of the matter and it was entitled to do so.
The
matter was withdrawn in the midst of submissions on the urgency of
the matter.
The
court did not get to pronounce itself on the urgency of the matter as
the court was not fully addressed on the subject and the application
was aborted midway and no ruling made.
The
first respondent cannot be entitled to costs simply on the basis that
the court had initially declined to entertain the application.
Although
the court found that the matter was not urgent, this in no way means
that the applicants had no cause of action against the first
respondent.
The
applicant was holding its sugar and the first respondent was not
clearing it or facilitating that process.
When
the application was lodged, the respondent had not paid for clearance
of the sugar.
The
applicant was entitled to compel the first respondent to clear the
sugar and by a certain date.
The
withdrawal of the application was done after the matter was set down
for hearing. It emerged during argument, that the first respondent
had since paid the monies required as duty to clear the sugar. The
first respondent, it also emerged, had a permit and licence from the
third and fourth respondent to enable it to clear the sugar and
collect it from the applicants depot.
The
applicant made its application on 15 September 2015 seeking an order
against the first respondent to “effect all such payment as is
required to clear and to remove” its sugar held at the applicant's
depot.
The
first respondent effected these payments on 18 September 2015.
The
court set down the application for hearing on 23 September 2015.
The
first respondent was not open with the court only advising the court
of its payment to the fifth respondent on the second day of the
hearing. The first respondent ought to have disclosed this progress
at the onset of the hearing.
There
is no explanation why the first respondent only informed the court
and the other parties so late of this crucial development. Had it
done so earlier, this would have obviated the need for the hearing.
It
appears to me that the payment was prompted and made in response to
the application.
The
discovery that money had been paid to the fifth respondent to clear
the sugar led the applicant to withdraw its application. It would
have been potentially abusive conduct for the applicant to proceed
with an application that served no purpose.
I
am of the view that the applicant is not liable for the untimely
termination of the application.
There
is no suggestion that the applicant abused court process. The
applicant used the procedures permitted by the rules of court to
facilitate the pursuit of the truth .The applicant achieved its
objective of trying to compel the first respondent to pay up its
licenses and permits and duty so that the sugar could be removed from
its depot.
In
that regard, the applicant was the successful party.
The
respondent on the other had been clearly at fault for failing to
disclose developments that were taking place timeously.
The
applicant was the successful party and that fact in my view
constitutes 'very good reason' for depriving the first respondent
of its costs.
The
applicant is entitled to the costs of this application. The applicant
has been put out of pocket by having to compel the respondent to
clear its sugar. The first respondent has been unable to justify its
claim for costs.
Costs
follow the event.
The
applicants have asked for costs on the ordinary scale. In the result
it is ordered as follows:
The
application is dismissed. The first respondent is to pay the costs of
this application.
Gill,
Godlonton & Gerrans, applicant's legal practitioners
Venturas
& Samkange,1st respondent's legal practitioners
