Hatcliffe Community Church v Northside Community Church and Registrar of Deeds

The parties were involved in an ownership dispute concerning a church in Hatcliffe, Harare. A trial was scheduled to commence on 12 July 2021. On the day of the trial, without prior notice, the first defendant's counsel applied for a postponement sine die on the basis that the first defendant had filed an application to amend its plea that same morning. The plaintiff's counsel was perturbed by this conduct, particularly since the parties had previously undertaken at a case management meeting that the trial would definitely commence on the agreed date. The court postponed the matter sine die and ordered the first defendant to pay the plaintiff's costs of the day on a legal practitioner and client scale. The parties failed to agree on the amount of costs payable. The plaintiff prepared a bill of costs for taxation, interpreting "costs of the day" to mean all costs reasonably incurred in preparation for the trial. The first defendant contended that such costs were only confined to events that occurred on the day of the hearing. The taxing officer, after hearing brief submissions, referred the matter to a judge in chambers in terms of Rule 72(25) of the High Court Rules, 2021, for determination of the dispute.

• What is the proper interpretation and scope of 'costs of the day' in an order for costs following a postponement?
• What costs constitute 'wasted costs' as a result of a postponement sine die?
• Which specific items in the plaintiff's bill of costs should be allowed as costs of the day or wasted costs caused by the postponement?

1. The attendances in respect of items 1 to 44 of the bill of costs, being unrelated to the postponement of the matter on 12 July 2021, must be disallowed. 2. The attendances in respect of items 45 and 47 of the bill of costs should only be allowed to the extent that they relate to preparatory work involving the witnesses that were required to attend court and give their testimony at the trial. 3. The attendances in respect of item 48 of the bill of costs, being preparatory work by counsel, have not been rendered useless in the continuation of the trial and must be disallowed. 4. In respect of attendances that occurred after the postponement of the matter on 12 July 2021, only those extra costs that were incurred as a direct result of the postponement of the matter shall be allowed. 5. There shall be no order as to costs.

When a party is ordered to pay "costs of the day" following a postponement, such costs are limited to those extra costs that were caused by and are a direct result of the postponement. Wasted costs are those costs which have become useless and unnecessary by reason of the postponement. The test is whether the costs in question would not have been incurred but for the postponement. Costs incurred in the normal course of progressing a matter towards trial are costs in the cause and do not constitute wasted costs merely because the trial is postponed. Preparatory work by legal practitioners (such as research and reviewing pleadings) does not become useless upon postponement as it retains utility when the trial resumes. Preparatory work involving witnesses may constitute wasted costs if it would need to be redone due to the length of the postponement. Post-postponement costs are only allowable if they were incurred as a direct result of the postponement.

The court noted that engagements with witnesses for purposes of preparing for trial are not uncommon on the eve of trial, and it may be necessary for counsel to go through witness statements with witnesses to determine if they still have the same recollection of events. The court observed that the situation would be different if a matter was postponed to a date not far off from the date of postponement, in which case costs would not be deemed useless or unnecessary because further engagements with witnesses would not be necessary within such a short space of time. The court commented that legal practitioners are experts in their field and all effort applied towards preparation for trial does not go to waste when a trial is postponed, as it will still be put to use when the trial resumes. The court expressed that the first defendant's conduct in applying for a postponement on the morning of the trial without prior notice was "clearly unacceptable."

This judgment provides important guidance on the interpretation of "costs of the day" and "wasted costs" in the context of postponements in Zimbabwean civil procedure. It clarifies that not all costs incurred in preparation for a trial constitute wasted costs merely because the trial is postponed. The judgment establishes a clear test: costs must have become useless and unnecessary by reason of the postponement and must be a direct result of the postponement. It distinguishes between different types of preparation costs, particularly between witness preparation (which may need to be repeated after a lengthy postponement) and counsel's legal preparation (which retains its utility for the resumed trial). The case is significant for providing practical guidance to legal practitioners and taxing officers on the taxation of costs following postponements.