Joseph Sibanda and Wedgewall Investments (Private) Limited v Makonde Industries Private Limited (In Liquidation) and Glen Moor Trading Limited and Martin Drive Private Limited

The applicants sought leave to appeal against an order for costs of suit on a legal practitioner client scale made in case number HH 292-15 on 2 March 2015. The costs order arose when the applicants appeared for a hearing in HC 10934-13 and sought a postponement to 11:15 that same day on the basis that their counsel of choice, Advocate Thabani Mpofu, was engaged in a matter before the Supreme Court at 9:30am. The respondents opposed the postponement application despite having been notified on 27 February 2015 by letter of Advocate Mpofu's unavailability and the intention to seek a postponement. The court refused the postponement to 11:15, instead postponing the matter to 4 March 2015 and awarded costs on a legal practitioner client (punitive) scale. The applicants argued they had taken reasonable steps to avoid wasted costs through prior notification and that they needed Advocate Mpofu's expertise given the complexity of the matter and his involvement from inception.

• Whether leave to appeal against an order of costs only should be granted
• Whether the court misdirected itself in awarding costs on a legal practitioner client (punitive) scale
• Whether the appeal against the costs order had reasonable prospects of success
• The proper exercise of judicial discretion in awarding costs

The application for leave to appeal against the order of costs was dismissed. Leave to appeal was refused on the basis that the appeal had no prospects of success.

An application for leave to appeal against an order of costs only is not lightly granted because costs are a matter of judicial discretion and it is in the interests of justice that finality be reached where the merits have been determined. Leave to appeal a costs order will not be granted unless: (1) the costs involved are not insubstantial; (2) there is a matter of principle involved; and (3) there are reasonable prospects of success on appeal. The court will not interfere with a discretionary costs order unless the applicant establishes that there is a reasonable prospect that another court may come to a different conclusion. An award of costs, including punitive costs on a legal practitioner-client scale, is entirely within the discretion of the court.

The court observed that had the letter seeking postponement been addressed to the Registrar rather than only to the opposing party's legal practitioners, it would have been simple for the court itself to allow a postponement to enable counsel of choice to attend. This suggests that proper procedure for seeking postponements should involve formal communication with the court registry, not merely informal arrangements between parties. The court also noted that the spirited opposition to the postponement suggested no genuine prior arrangement had been made between the parties, despite the applicants' contentions to the contrary.

This case reinforces the well-established principle in Zimbabwean law that leave to appeal against costs orders is not lightly granted. It demonstrates the high threshold applicants must meet when seeking to appeal discretionary costs orders, emphasizing the importance of finality in litigation. The case provides guidance on when punitive costs orders may be appropriate and the limits on appellate interference with the trial court's exercise of discretion in awarding costs. It also illustrates the procedural requirements for seeking postponements and the potential consequences of inadequate prior arrangements between parties or with the court registry.