Dunhuramambo (Pvt) Ltd t/a Zambezi Cruise & Safaris v T P Mashayamombe N.O. and Charles Nikobasa

The applicant sought to review the taxation of costs carried out by the first respondent (taxing officer) in two related matters (HCC 4/22 and HCC 8/22) in which the second respondent had been awarded costs against the applicant on a legal practitioner and client scale. Taxation was conducted on 9 February 2024 at the Chinhoyi High Court. The applicant objected to various items in the bills of costs, arguing that: (1) clerical attendances claimed by the second respondent's legal practitioner should have been disallowed; (2) claims for legal research, drafting heads of argument, and other attendances were inflated and unreasonable; (3) the second respondent should have used correspondent attorneys in Chinhoyi rather than claim for personal attendances. The taxed bills were served on 26 February 2024. The application for review was filed on 18 March 2024. The second respondent raised a preliminary point that the application was filed out of time, as Rule 72(26) required filing within 14 days of the taxation decision (9 February 2024), meaning the deadline was 1 March 2024.

• Whether the application for review of taxation was filed within the 14-day time limit prescribed by Rule 72(26) of the High Court Rules
• Whether the dies induciae for filing a review application runs from the date of the taxing officer's decision or from the date of service of the taxed bill on the parties
• Whether non-compliance with the mandatory time limit in Rule 72(26) could be condoned in the absence of a formal application for condonation
• Whether the applicant's legal practitioners' conduct warranted a costs order de bonis propriis on an attorney and client scale

The application was struck off the roll. The applicant was ordered to pay the second respondent's costs of suit on the ordinary scale.

An application for review of taxation brought under Rule 72(26) of the High Court Rules must be filed within 14 days of the taxing officer's decision. The 14-day period runs from the date the decision is made (as evidenced by the stamp and signature on the taxed bill), not from the date of service of the taxed bill on the parties or when they become aware of the decision. Failure to comply with this mandatory time limit renders the application for review defective and a nullity. Where a party seeks to file an application out of time, they must bring a proper application for condonation for non-compliance with the rule before or together with the substantive application; a mere request for condonation in response to an objection is insufficient. Strict compliance with peremptory provisions in court rules is required, and anything less will potentially prejudice the other party.

The court observed that Rule 72(26) is not concerned with the date the applicant became aware of the decision or the date of service of that decision, but rather with the date on which the decision was made. The court noted that there must be a reason why the drafters of the rules considered it necessary to prescribe specific time limits. The court also commented that a request for condonation is not granted for the mere asking, and that the court exercises discretion to condone or not to condone depending on the explanation given for non-compliance with the rules. The court noted that while the supporting affidavit of the correspondent attorney might have assisted in an application for condonation, it was inadequate in the context of the case because it did not explain key details such as who served the taxed bills or provide documentary evidence of the receiving stamp. The court declined to award costs de bonis propriis on an attorney and client scale, stating that the conduct of the applicant's legal practitioners, while negligent in ignoring warnings about the time bar, was not so gross as to warrant such an order.

This case reinforces the strict interpretation of procedural time limits in Zimbabwean civil procedure, particularly Rule 72(26) governing review of taxation. It clarifies that the 14-day period for filing a review of taxation runs from the date of the taxing officer's decision, not from the date of service or when the aggrieved party becomes aware of the decision. The judgment underscores the importance of compliance with mandatory court rules and the principle that failure to comply with peremptory time limits renders proceedings a nullity. It also demonstrates that where a party is aware that an application may be out of time, they must bring a proper application for condonation rather than merely requesting condonation in response to an objection. The case serves as a cautionary tale for legal practitioners about the consequences of non-compliance with procedural rules and the need to address procedural defects timeously and properly.