Jotina Ganyata v Vimbai Magura

The plaintiff (Ganyata) instituted two civil claims for recovery of damages arising from delicts allegedly perpetrated by the defendant (Magura). Both claims were dismissed with costs for lack of evidence. The matter was referred for taxation of the defendant's costs. The plaintiff appealed against the dismissal. The Clerk of Court, citing complexity, requested the Magistrate to conduct the taxation instead of conducting it himself as required by the rules. The Magistrate conducted the taxation proceedings and approved the defendant's bill of costs totaling RTGs $231,588.30 and USD $2,870.00. The plaintiff's lawyers were absent from the taxation hearing. The plaintiff's legal practitioners complained that the Magistrate had no jurisdiction to conduct taxation proceedings as this was the exclusive function of the Clerk of Court under Order 32 Rule 3(3) of the Magistrate Court (Civil) Rules, 2018. The Magistrate then referred the matter to the High Court ostensibly under Order 32 Rule 5(5) of the Rules.

• Whether a Magistrate has jurisdiction to conduct taxation proceedings in place of the Clerk of Court
• Whether the taxation proceedings conducted by the Magistrate were valid or null and void
• Whether the referral to the High Court under Order 32 Rule 5(5) was proper in the circumstances
• What is the proper procedure and scope for referring taxation disputes to a Judge under Order 32 Rule 5 of the Magistrate Court (Civil) Rules, 2018

The record was returned to the Magistrates Court. The court declined to exercise powers outside those specifically conferred under Order 32 Rule 5 and noted that there being no formal review application before it to set aside the taxation proceedings, it could not grant the relief sought.

1. Taxation of costs in the Magistrates Court is the exclusive function of the Clerk of Court under Order 32 Rule 3(3) of the Magistrate Court (Civil) Rules, 2018. 2. Although Order 3 Rule 3 generally permits a Magistrate to perform the Clerk of Court's functions when the Clerk is unavailable, it specifically excludes taxation proceedings from this general permission. 3. A referral to a Judge under Order 32 Rule 5(5) is only applicable where a party is dissatisfied with a Magistrate's review decision under subrule (3) regarding taxation items objected to before the Clerk of Court. 4. Challenges based on jurisdictional defects (such as a Magistrate conducting taxation) or procedural irregularities in taxation proceedings must be brought by way of a formal application for judicial review under section 27 of the High Court Act, not through the referral mechanism under Order 32 Rule 5(5).

The court noted that it was constrained to deal with the Magistrate's role in the taxation proceedings because there was no substantive review application before it. The court observed that although the plaintiff's complaint about the Magistrate lacking jurisdiction appeared merited, she had elected the wrong procedural avenue. The court also commented that the Clerk of Court's deferment to the Magistrate, no matter how well-intentioned given the perceived complexity, constituted an abdication of duty. The Rules make no distinction between simple and complex taxation matters - all must be conducted by the Clerk of Court.

This case clarifies the proper procedures for challenging taxation proceedings in Zimbabwean Magistrates Courts. It establishes the exclusive jurisdiction of the Clerk of Court to conduct taxation proceedings and delineates the limited circumstances under which taxation disputes may be referred to a High Court Judge under Order 32 Rule 5(5) of the Magistrate Court (Civil) Rules, 2018. The judgment emphasizes that jurisdictional and procedural challenges to taxation proceedings must be brought by way of formal judicial review applications under section 27 of the High Court Act, not through the referral mechanism. It serves as an important reminder to legal practitioners to select the appropriate procedural remedy when challenging court processes.