Manica Zimbabwe Ltd v Grindsberg Investments (Pvt) Ltd and Others

The applicant operated a licensed container depot for storage of imported goods. Between March and October 2014, it received containers of sugar and other goods belonging to the first respondent. The other goods were cleared but sugar containers remained. The first respondent was required to obtain licenses and permits from the third and fourth respondents, pay import duty to the fifth respondent (ZIMRA), and pay the applicant's storage and handling charges. The applicant contended that the first respondent had failed to obtain the necessary licenses and permits, and that its license was due to expire on 24 September 2015. On 15 September 2015, the applicant filed an urgent chamber application seeking to compel the first respondent to obtain licenses, permits and pay import duty to enable clearance of the sugar, or alternatively to grant the applicant the right to import and sell the sugar and recover costs. The court initially declined to hear the matter as not urgent, but later set it down after an appeal. During the hearing, the first respondent disclosed it had obtained the necessary license and permit and paid the fifth respondent for clearance on 18 September 2015. The applicant withdrew its application without offering costs. The first respondent then sought an order for costs on a higher scale or de bonis propriis.

• Whether the first respondent's heads of argument, filed late without condonation, should be expunged from the record
• What principles govern the award of costs where an application is withdrawn after being set down for hearing
• Whether costs should be awarded against a party who withdraws an application that has been rendered moot by the respondent's compliance with the relief sought
• Whether the applicant was the successful party despite withdrawing the application

The application for costs by the first respondent was dismissed. The first respondent was ordered to pay the costs of the application on the ordinary scale.

Where a party withdraws an application after it has been set down for hearing, the general rule is that the withdrawing party pays costs as they are in the same position as an unsuccessful litigant. However, the court retains discretion to depart from this rule where 'very strong reasons' or exceptional circumstances exist. A party may be deemed successful despite withdrawing where: (1) the withdrawal was necessitated by the respondent's compliance with the relief sought after the application was filed; (2) the respondent's compliance was prompted by the application; (3) the applicant's conduct was proper and not abusive of court process; and (4) the respondent failed to disclose material developments timeously. In such circumstances, the applicant achieves its objective and is entitled to costs. A party who files documents late in breach of a court order must apply for condonation; failure to do so is fatal and the documents will be expunged from the record.

The court observed that it would have been potentially abusive conduct for the applicant to proceed with an application that served no purpose after discovering that the respondent had paid the necessary amounts. The court noted that the applicant properly used court procedures to facilitate the pursuit of truth rather than abusing the process. The court also commented that although it had initially found the matter not urgent, this did not mean the applicant had no cause of action, as the applicant was entitled to compel the first respondent to clear the sugar being held at its depot. The court remarked that the first respondent ought to have disclosed its payment to ZIMRA at the onset of the hearing, which would have obviated the need for the hearing entirely.

This case is significant in Zimbabwean civil procedure law for clarifying the principles governing costs where an application is withdrawn after the respondent complies with the relief sought. It reinforces that while the general rule is that a withdrawing party pays costs, the court retains discretion to depart from this where exceptional circumstances exist, particularly where the applicant can be deemed the successful party because the withdrawal was prompted by the respondent's compliance. The judgment also emphasizes the importance of procedural compliance, particularly the requirement to seek condonation for late filing of documents, and the duty of parties to disclose material developments to the court timeously. It demonstrates that costs do not automatically follow withdrawal but require judicial assessment of all circumstances including the conduct and success of parties.