Basilio Mutosvori v Simon Gamha and The Deputy Sheriff of High Court

On 11 June 2020, the 1st respondent obtained a default judgment against the applicant in case HC 589/20, with costs ordered on an attorney-client scale. On 12 December 2020, the Taxing Officer taxed and allowed costs in the sum of $151,687.00. A writ was issued and a motor vehicle belonging to the applicant was placed under judicial attachment in pursuance thereof. The applicant filed an application for review (HC 766/21) to set aside the taxed bill of costs and filed this urgent application on 10 June 2021 to stay execution of the writ pending finalisation of the review application. The applicant challenged certain items in the bill of costs, claiming they exaggerated the work done, but did not contest over $100,000.00 of the taxed bill and made no tender of payment of the uncontested amount.

• Whether the court should exercise its discretion to stay execution of a writ pending review of a taxed bill of costs
• Whether the applicant demonstrated a prima facie right, reasonable apprehension of irreparable harm, balance of convenience, and absence of satisfactory remedy for interim relief
• Whether the review application had prospects of success given it was filed approximately 20 weeks outside the timeline provided in Rule 314 of the High Court Rules, 1971
• Whether the applicant's choice of review procedure under Order 33 instead of the faster procedure under Rule 313 was appropriate

The application is dismissed with costs of suit.

A court will stay execution of a writ pending review of taxed costs only where the review application has prospects of success. A review application filed outside the prescribed time limits in Rule 314 of the High Court Rules, 1971 (four weeks after taxation) has no prospects of success. An applicant seeking to stay execution pending review must demonstrate: (1) a prima facie right; (2) reasonable apprehension of irreparable harm; (3) balance of convenience in their favour; and (4) absence of satisfactory remedy. Where an applicant contests only a portion of taxed costs but makes no tender of uncontested amounts and chooses lengthy review procedures over expeditious alternatives, the balance of convenience favours allowing execution to proceed. The court will not stay execution where the application appears designed to delay rather than genuinely test the correctness of taxation.

The court observed that litigants desirous of speedy resolution of disputes concerning taxation should seriously consider using Rule 313 (allowing the taxing officer to refer points to a judge in chambers) instead of the cumbersome procedure under Rule 314 (formal review application). The court noted that an urgent application to stay execution can still be filed pending finalisation of a bill of costs referred to a judge under Rule 313. The court also noted that in terms of Rule 330, taxed costs and expenses of issuing and levying execution shall be the first charge on proceeds of property sold in execution, and that reviews of taxation should, absent exceptional circumstances, be concluded without undue delay.

This case clarifies the principles governing applications to stay execution of writs pending review of taxed bills of costs in Zimbabwean law. It emphasizes that courts will not readily interfere with execution where: (1) review applications are filed outside prescribed time limits; (2) applicants fail to tender payment of uncontested portions of taxed costs; (3) applicants choose cumbersome procedures over available expeditious remedies; and (4) the application appears designed to delay rather than genuinely challenge the taxation. The judgment reinforces the principle that a judgment creditor is entitled to satisfaction of taxed costs and that review applications must be brought timeously and in good faith, not as delaying tactics.