This is an application for the correction or variation of the order issued by the
Supreme Court under SC161/09 on 16 July 2011 allowing the appeal by the
applicants (then appellants), on the basis that the order is ambiguous. The
application was filed under the same case number as the original appeal. The
impugned order (per SANDURA JA with GARWE JA and CHEDA AJA concurring) reads as follows:
“1. The appeal is
allowed with costs.
2. The order of the court a quo is set aside and the following is
substituted:
“Judgment is granted for the plaintiffs with costs to the
extent that the will attested to by the late Richard Mpansi, and registered
with the second defendant under LW47/2005,
be and is hereby declared null and void.”
The applicants contended that the above order must be
interpreted to mean that the first respondent is liable for costs in his
personal capacity, or, alternatively, since he participated in the litigation
in a representative capacity as a duly appointed executor, he should pay such
costs out of his own pocket (de bonis propriis) as he had allegedly conducted himself grossly negligently and
maliciously in defending the validity of the will. Accordingly, the applicants
pray that the above order be “corrected” to read as follows:
“1. The appeal be
and is hereby allowed with costs (to be) borne by the first respondent on a
party/party scale.
2. The order of the court a quo is set aside and the following
substituted:
“Judgment is
granted for the plaintiffs with costs being borne by the first defendant on
a party/party scale to the extent
that the will attested by the late Richard Mpansi, and registered with the
second defendant under LW47/2005, be
and is hereby declared null and void.”…,.
The key issue is whether this matter is properly before
this Court.
The applicants have approached this Court in terms of Rule
449 of the High Court of Zimbabwe Rules, 1971….,.
Rule 449 of the High Court Rules provides that a court or
judge may, in addition to any power it or he may have, mero motu or upon application by any party
affected, correct, rescind or vary any judgment or order, inter alia, in which
there is an ambiguity or patent error or omission, but only to the extent of
such ambiguity, error or omission.
The applicants submitted that the order of the Supreme
Court lacks clarity and certainty as to whether the first respondent is liable
to pay costs personally or whether such costs should be paid out of the estate.
That costs may be ordered against the estate is without
doubt. However, such a special order of costs must be specifically pleaded,
otherwise the ordinary rule that costs follow the event applies. The standard
rule requires parties to pay costs in the capacities they participate in
litigation based on the outcome of the matter. This rule applies even in legal
proceedings involving deceased estates - unless special circumstances are
invoked. In Bonsma v Meaker 1973 (4)
SA 526 (R)…, the court observed as follows:
“While normally in legal proceedings instituted by or
against a deceased estate the ordinary rule that costs follow the event
applies, there are circumstances under which a person who is instituting
proceedings against a deceased estate will, whether he is successful or not, be
entitled to have costs made payable out of the estate. This can be the position
not only where the validity or construction of a will is in dispute but also in
matters arising from or concerning the administration of an estate.”
In my view, the
Supreme Court order in question was crafted in line with the ordinary rule
pertaining to costs. No special circumstances were alleged in earlier
proceedings, both in the High Court and Supreme Court, necessitating a
departure from the ordinary rule. No claim was made for the executor to pay
costs de bonis propriis at any stage
until now. There is no suggestion that this court omitted to deal with any
issue that had been raised. In the circumstances, it is difficult, nay
impossible, to conclude that the order in issue is vague or ambiguous in any way.
I am further
fortified in this
conclusion by an
examination of how
this case proceeded.
This matter commenced by way of court application at the
High Court but because it was found that there were irreconcilable disputes of
fact, the matter was referred to trial and subsequently ended up before the
Supreme Court on appeal.
Of significance is the fact that at court application
stage, the first respondent objected to his being cited in his personal
capacity instead of his official capacity as the appointed executor. The
applicants conceded the point and duly withdrew the matter against the first
respondent in his personal capacity, tendering wasted costs. The matter then
proceeded against the first respondent in his representative capacity of executor.
As a general rule, executors are only visited with personal
costs in exceptional circumstances. The remarks of the learned authors, CORBETT,
HAHLO, HOFMEYR and KALIN, The Law of Succession in South Africa, Juta & Co Ltd, 1980 are apposite.
At page 601, they state:
“Having regard to the executor's duty to defend the will,
if such defence is unsuccessful but was reasonable, the executor's costs will
be ordered to be paid out of the estate as well as costs of the successful
party. Generally, where an executor litigates in the interest of the estate and
not in his own interests, he will not personally be mulcted in costs in the
absence of circumstances making it desirable for the court to mark its
disapproval of his conduct.”
No special order of costs against the first respondent was
prayed for, either at the High Court or Supreme Court. In fact, in the draft order of the High Court application, the
applicants did not ask for costs at all. Nonetheless, after a full trial the
High Court issued a standard order of costs,
thus:
“Accordingly it is ordered
that:
1. The plaintiffs'
claim is dismissed.
2. The plaintiffs'
shall pay the first defendant's costs for both the application and trial
jointly and severally the one paying the others to be absolved.”
In their Notice of Appeal to the Supreme Court, the present
applicants (then appellants) sought the following relief:
“Appellants pray that the judgment of the court a quo be set aside with costs and be
substituted by a judgment granting the relief sought by the appellants setting
aside the contested will with costs.”
Once more, the applicants prayed for ordinary costs
consequent upon a favorable outcome to them. That is precisely what the Supreme
Court granted in the impugned order. There is nothing ambiguous about that order.
Therefore, Rule 449 is not
applicable….,.
As far as the costs of this application are concerned,
there is no need to depart from the ordinary rule that costs follow the outcome
since no special order of costs to be paid out of the estate has been made.
However, counsel for the applicants
indicated to this court that the value of the estate was so small that he has
had to waive his fees and appear pro bono.
It was not clear whether his commendable gesture applied only to this
application or to the whole litigation. However, according to correspondence on
the record it appears that he had initially charged a fee of over $40,000=
against the estate.
Certainly, if counsel for the applicants is waiving the fees for all the
proceedings, this would be a most welcome relief for the small estate already
much diminished by the heavy litigation costs.
Although counsel for the first respondent, in his heads of argument, had sought
costs on the legal practitioner-client scale, in oral argument both parties agreed
that an order directing each party to pay its own costs would be appropriate.
Accordingly, the application is dismissed. Each
party shall bear its own costs.
