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.
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 first and second 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 the 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 Advocate 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.
Counsel 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, the 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 HH709-15.
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 counsel for the applicant, 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 the 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 the 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 the applicant. The first respondent believes that had the 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…,; Boadi v Boadi 1996 (2) ZLR 378; Tribac (Pvt) Ltd v Tobacco Industry & Marketing Board 1996 (2) ZLR 52 (S)…,; Bozimo Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (H)…,.
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, the 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)…, 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.”
GUBBAY J…, 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 of 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 needs 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 succeed 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 the 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)…, 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 p457 - 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:
(i) 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.
(ii) 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)…,:
“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 the applicant's operations and so on.
As the case law indicate, the 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 applicant is a commercial bank. It would have been aware that its attitude, in mounting meritless opposition to the respondent'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 has 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…,.
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.
