Isaac Tigere Tichareva v Mangenje Brothers (Private) Limited

The applicant was the executor dative of the Estate Late Kennedy Mangenje (DR MRE No. 329/18), who owned 25% shareholding in the respondent company, a family concern founded by three brothers. On 17 June 2020, Tagu J granted a provisional order for winding up of the respondent company and appointed a provisional liquidator. However, the application was filed on 18 February 2020 and relied upon the repealed Companies Act [Chapter 24:03], which had been repealed by the Companies and Other Business Entities Act [Chapter 21:31] that came into force on 13 February 2020. The respondent opposed the confirmation of the provisional order, filing opposition on 14-15 September 2020 and heads of argument on 3 November 2020. The applicant showed no urgency in pursuing confirmation of the order and only acted after the respondent set down the matter for hearing. On 7 October 2021, just before the scheduled hearing on 14 October 2021, the applicant filed a notice of withdrawal with a tender of costs on the ordinary scale. The respondent rejected this and sought punitive costs on the legal practitioner and client scale.

• Whether an order for costs on a higher scale (legal practitioner and client scale) was justified in circumstances where the applicant withdrew an application based on repealed legislation
• What constitutes vexatious or frivolous conduct warranting punitive costs
• Whether lack of seriousness in pursuing a case justifies an award of costs on a higher scale

1. The application was withdrawn by the applicant. 2. The applicant was ordered to pay costs of the application on the legal practitioner and client scale.

Courts may award costs on the legal practitioner and client scale (punitive costs) where a litigant exhibits: (1) lack of seriousness in pursuing their case; (2) vexatious, reckless or frivolous conduct; (3) reliance on repealed legislation despite having ample opportunity to research and apply current law; and (4) withdrawal of proceedings on the eve of hearing after the opposing party has incurred costs in preparing for the matter. A litigant is bound by the conduct of their legal practitioner, and withdrawal with tender of ordinary costs does not automatically shield a party from punitive costs where their overall conduct warrants such an order. The discretion to award costs is exercised judicially, and costs on a higher scale are granted in exceptional circumstances including dishonest or malicious conduct and vexatious proceedings.

Chitapi J observed that the conduct of the applicant's counsel was deserving of censure and that the counsel was "lucky that costs were not sought de bonis propriis as these could arguably have been justified." This suggests that in appropriate cases, costs may be ordered against legal practitioners personally where their conduct falls below acceptable standards, particularly where they fail to keep abreast of changes in legislation. The court also noted that it was "unacceptable for the applicant to continue to cling to a provisional order which clearly was granted in error and to take advantage of its effect even after the error had been pointed out to the applicant's legal practitioner by the respondent's legal practitioner."

This case is significant for establishing when punitive costs on the legal practitioner and client scale are appropriate in Zimbabwean law. It emphasizes the duty of legal practitioners to remain current with legislative changes and not to rely on repealed legislation. The case demonstrates the court's willingness to impose punitive costs where there is lack of seriousness in pursuing litigation, vexatious conduct, or where a litigant obtains provisional relief on an erroneous legal basis and then fails to diligently pursue confirmation. It also illustrates that a client will be bound by the conduct of their legal practitioner, and that withdrawal of an application on the eve of hearing does not shield a party from punitive costs where their conduct throughout the proceedings was improper.