Julius Tawona Makoni v Pauline Mutsa Makoni and The Registrar of Deeds

The parties were previously married but divorced in England. A decree nisi was issued by the English court. The first respondent (ex-wife) used this decree to obtain an interdict in the Zimbabwean High Court barring the applicant from dealing with property at No. 5 Reitfontein Close Highlands, Harare, which the applicant claimed as his sole property. The applicant filed an appeal against the High Court order but it was struck off the roll with costs for non-compliance with Rule 29 (the notice of appeal failed to state the date on which the judgment was handed down). The taxed costs amounted to $7,545.25. The applicant then brought this application for condonation of late noting of appeal and extension of time to file the appeal, without having paid the first respondent's wasted costs from the previous struck-off application.

• Whether proceedings should be stayed pending payment of taxed costs awarded in earlier proceedings
• Whether the court should exercise its discretion to allow an application to proceed when the applicant has failed to pay wasted costs from previous proceedings
• Whether a liquidated amount (taxed costs) can be set off against an unliquidated amount (untaxed costs)

1. The objection in limine was sustained with costs. 2. The application for condonation of late noting of appeal and extension of time within which to appeal was stayed until the applicant has paid the first respondent's taxed costs in the court a quo.

Where an applicant seeks to bring further proceedings in a matter but has failed to pay taxed costs awarded to the respondent in earlier proceedings in the same matter, the court may exercise its discretion to stay the proceedings until such wasted costs are paid. It would be manifestly unfair and unjust to allow an applicant to continue piling proceedings on a respondent without first making good the wasted taxed costs the applicant caused the respondent to incur. A liquidated amount (taxed costs) cannot be set off against an unliquidated amount (untaxed costs).

The court observed that the applicant's attitude of suggesting the respondent should execute against his property rather than voluntarily paying the debt evinced a mindset aimed at piling wasted costs on the respondent. The court noted that any prejudice the applicant might suffer from the stay of proceedings would be self-inflicted. The court also observed that the stay would not adversely affect the respondent since the interdict granted by the court a quo operated against the applicant in favour of the respondent. The court expressed the view that the applicant's conduct might be meant to wear down the respondent with costs.

This case establishes important principles regarding the fairness and proper conduct of litigation in Zimbabwean courts. It demonstrates the court's willingness to use its discretion to prevent abuse of process by litigants who continue to bring applications without settling costs orders from previous proceedings. The judgment emphasizes that access to courts must be balanced against fairness to opposing parties and the prevention of vexatious litigation through the accumulation of unpaid costs orders. It reinforces that courts will not allow litigants to weaponize the judicial process by continuously filing applications while refusing to pay legitimately owed costs.