Crief Investments (Pvt) Ltd and Aldawilla Investments (Pvt) Ltd v Grand Home Centre (Pvt) Ltd and Others

The applicants applied for rescission of a default judgment granted under case number HC 8895/12 in terms of Order 9 r 63 (1)(2) of the High Court Rules. The default judgment was granted because the applicants' legal practitioner received a notice of set down dated 9 June 2016, when the matter had actually been set down for 9 May 2016, and was heard in their absence. The respondents were served with the rescission application on 16 June 2016 and filed a notice of opposition but failed to file their Heads of Argument within the prescribed time, resulting in them being barred. The respondents then filed a Chamber Application seeking condonation for late filing and upliftment of the bar on 28 February 2017, but this application was dismissed for failure to follow court rules, providing an unreasonable explanation for delay, and lack of merit. The rescission application was granted in favor of the applicants, with judgment reserved on the question of costs at a higher scale.

• Whether costs should be awarded on a higher scale (attorney and client scale) in favor of the successful applicants
• What are the principles and grounds for awarding costs at a higher scale
• Whether the respondents' conduct warranted punitive costs

Costs were awarded to the applicants on a higher scale (attorney and client scale).

Costs at a higher scale (attorney and client costs) may be awarded where there are exceptional circumstances such as reckless or vexatious conduct by the losing party. The award of costs is within the judicial discretion of the court and must be exercised on reasonable grounds considering the circumstances of each case, the conduct of the parties, and fairness between the parties. To justify costs on an attorney and client scale, there must be special considerations arising from the circumstances giving rise to the action or from the conduct of the losing party that warrant ensuring the successful party will not be out of pocket. Reckless delays and defective court processes designed to delay proceedings and clutch at default judgments constitute sufficient grounds for awarding costs at a higher scale.

The court observed that costs should not be a deterrent factor to access to justice for future litigants with genuine matters which deserve judicial attention. Courts should exercise greater vigilance when awarding costs at a higher scale and should not award such costs merely because the winning party requested them. The court noted that an application, like a summons, is the founding process by which a matter is brought to court, and if the application is incurably defective (such as not being in the prescribed Form 29), it is a nullity and must be struck off the roll. The court emphasized that the general principle is that the successful litigant should be indemnified from expenses incurred by reason of being unjustifiably compelled to either initiate or defend litigation.

This case illustrates the Zimbabwean High Court's approach to awarding costs at a higher scale in civil proceedings. It reinforces that such awards are exceptional and require evidence of reckless conduct, vexatious proceedings, or abuse of court processes. The judgment emphasizes that courts must exercise greater vigilance when awarding punitive costs to ensure they do not become a deterrent to genuine litigants seeking access to justice. It also demonstrates that procedural non-compliance, unreasonable delays, and attempts to manipulate court processes can justify punitive cost orders.