Alice Sunga & 32 Others v Deron Mutengwa

In or about 2000, the applicant and 32 others occupied a farm in Nyabira and had been in occupation since then. Also in occupation was one Chris Murove, against whom Landscapes Estates (Pvt) Ltd and Inveragus (Pvt) Ltd obtained an ejectment order in case HC 4281/03. The two companies attempted to use that order to evict the applicant and 32 others, alleging they occupied the land through Chris Murove. The applicant brought an application seeking protection from eviction under the Rural Land Occupiers (Protection from Eviction) Act No 13/02, and seeking a declaration that they should not be affected by the court order in HC 4281/03 to which they were not parties. The respondent was cited as a shareholder and director of Inveragus (Pvt) Ltd, which owned Lot 2 of Sunnyside and the Remainder of Landscape Estate. He alleged the applicants were "part of Chris Murove and his big family" and should be evicted. There was dispute about the exact name and description of the farm occupied by the applicants.

• Whether the applicant and 32 others were protected occupiers under the Rural Land Occupiers (Protection from Eviction) Act No 13/02
• Whether the applicants could be evicted under the court order in HC 4281/03 to which they were not parties
• Whether the correct party had been cited as respondent in the application
• Whether costs should be awarded where an application is withdrawn on a point not raised by the respondent

The application was withdrawn. No order as to costs was made.

A court order obtained in favour of a company cannot be enforced by or benefit a director or shareholder of that company in their personal capacity - the correct parties to cite in proceedings relating to enforcement of such an order are the companies themselves. Where an application is withdrawn on a defect not raised by the respondent, and where neither party would have succeeded on the merits as presented, the court may exercise its discretion to make no order as to costs in the interests of fairness and justice.

The court made important observations on the award of costs generally, noting that: (1) the award of costs is entirely within the court's discretion but must be exercised according to settled principles supporting fairness and justice; (2) costs are awarded to vindicate a successful party's approach to the courts and to penalize an unsuccessful party for being unreasonable; (3) in times of escalating legal costs, an award of costs may mean financial ruin and therefore must not be dealt with lightly or routinely; (4) costs awards should be considered carefully and made in deserving cases based on recognized principles, with the substance of the judgment determining the successful party rather than merely the wording of the order. The court also observed that the respondent's assertion that 33 persons constituted "part of Chris Murove's big family" appeared to be "an exceptionally big family" and lacked any factual basis to support it.

This case demonstrates the importance of correctly citing parties in litigation, particularly where court orders are sought to be enforced. It also illustrates the court's discretion in awarding costs and the principle that costs need not automatically follow the event where neither party would have succeeded on the merits as presented. The case touches on the protection of land occupiers under Zimbabwean legislation and the limits of court orders obtained against specific parties.