Cosia Enterprises (Private) Limited v Yipsong Plant and Equipment (Private) Limited

On 23 September 2018, a written agreement of sale was concluded for the sale of two excavators between Cosia Enterprises as seller and Yipsong Machinery (Private) Co, Ltd as buyer for USD75,000, payable in monthly instalments with the last payment due on 30 January 2019. The applicant alleged that the buyer (referred to as the respondent in the application) only paid USD53,500 of the purchase price. On 11 November 2021, the applicant gave notice of termination alleging material breach and demanded return of the excavators, offering to restitute the USD53,500 paid. The respondent denied any material breach and tendered payment of ZW$6,090. The applicant then brought this application seeking confirmation of cancellation and return of the excavators. This was the third application brought by the applicant on the same cause of action, having withdrawn HC 1510/21 and HC 3655/21 when faced with opposition.

• Whether the applicant cited the correct respondent as a party to the agreement of sale
• Whether an application can stand where there is a discrepancy between the name of the party cited and the party to the agreement in the founding affidavit
• Whether an applicant must explain material variances in the founding affidavit
• Whether costs on a higher scale are justified in cases of abuse of court process

The application was dismissed with costs on a legal practitioner and client scale.

An application must stand or fall on its founding affidavit. Where there is an apparent discrepancy between the name of a party cited as respondent and the party identified in the agreement upon which the applicant relies, the applicant has a duty to explain this variance in the founding affidavit. Failure to do so in the founding affidavit is fatal to the application and cannot be cured by explanations offered in subsequent affidavits (answering or replying affidavits). Rule 59(1) of the High Court Rules, 2021 requires that every application be supported by an affidavit setting out the facts upon which the applicant relies for relief, which includes establishing that the correct party has been cited.

The court observed that litigation in the High Court is serious business and the standard of pleadings must reflect this seriousness, citing Chifamba v Mutasa & Ors HH 16/08. The court also noted with disapproval the applicant's conduct in withdrawing previous applications when faced with opposition, failing to pay taxed costs promptly, and then instituting a third application on the same cause of action, describing this behaviour as bordering on abuse of court process. The court indicated that punitive costs on a legal practitioner and client scale were appropriate in such circumstances.

This case reinforces important principles of civil procedure in Zimbabwean law, particularly: (1) the fundamental rule that an application must stand or fall on its founding affidavit; (2) the duty of an applicant to explain material discrepancies or variances in the founding affidavit, particularly regarding the identity of parties; (3) the inadmissibility of attempting to cure defects in the founding affidavit through the answering or replying affidavit; (4) the courts' willingness to impose punitive costs where there is abuse of court process through serial litigation on the same cause of action; and (5) the requirement for high standards of pleadings in High Court litigation. The case serves as a warning to litigants and their legal practitioners to exercise due diligence in drafting founding affidavits and properly identifying parties to litigation.