Model Skills Investments (Pvt) Ltd v Cindy Victor and Vincent Garacho and Hailtop Investments (Pvt) Ltd

The applicant purchased a Mercedes Benz S500 vehicle from the respondents on 11 April 2020 for US$80,000. The vehicle was registered in the name of the third respondent, Hailtop Investments (Pvt) Ltd, but was allegedly jointly owned by the first and second respondents. The respondents failed to deliver documents confirming title and ownership. The applicant issued summons on 28 February 2023 in case HCHC 724/23 seeking cancellation of the sale agreement and refund of the purchase price. Subsequently, the applicant discovered that the vehicle had been imported in 2017 by a third party, was registered in the name of another third party, and was subject to statutory encumbrances. The vehicle was seized by ZIMRA on 25 May 2025. The applicant concluded that the sale agreement was void ab initio and moved an application to amend its summons, declaration and bundle of evidence. The respondents opposed the application. The applicant then sought to withdraw the application for amendment, tendering costs on an ordinary scale. The respondents accepted the withdrawal but demanded punitive costs.

• Whether the applicant should be granted leave to withdraw the application for amendment
• Whether costs should be awarded on an ordinary scale or a higher punitive scale
• What are the principles governing amendment of pleadings under Rule 49 of the High Court (Commercial Division) Rules
• What are the circumstances justifying an award of punitive costs

1. The prayer by applicant to withdraw the present application for leave to amend its summons, declaration and evidentiary bundle in case number HCHC 724/23 is granted. 2. Applicant pays costs of suit on an ordinary scale.

The binding legal principles established are: (1) Punitive costs should only be awarded where a litigant has acted dishonestly, maliciously, vexatiously, recklessly or frivolously, and not merely because of inelegant or inefficient litigation conduct; (2) The award of costs is a matter within the judicial discretion of the court, which must be exercised judicially by weighing the circumstances of each case, the conduct of parties, and any other relevant circumstances; (3) Applications for amendment of pleadings under Rule 49 should be regarded favorably unless manifestly improper, as they serve to determine the real issues in controversy and achieve justice between parties; (4) Prejudice to the opposing party from delayed or withdrawn applications can ordinarily be compensated by an award of costs on the ordinary scale.

CHILIMBE J made significant non-binding observations about the challenges of proving ownership of motor vehicles in Zimbabwe. The judge noted that vehicle registration certificates do not constitute conclusive proof of legal ownership, creating uncertainty in commercial transactions. The judge expressed the view that there may be a need for regulatory authorities to rethink the issue of conclusive proof of ownership of motor vehicles, suggesting that official documents should speak unequivocally on matters for which they were issued. The judge also commented positively on the Movable Property Security Interests Act [Chapter 14:35] enacted in 2017 as a progressive step in the securitization of movable assets, though noting these issues were matters for another day. The court also observed that "an error at inception often results in irredeemable defects" but noted that Rule 49 creates a facility to remedy missteps and oversights in pleadings.

This case clarifies the principles governing the award of costs in Zimbabwe, particularly in the context of withdrawn applications for amendment of pleadings. It emphasizes that punitive costs should only be awarded in cases of clear misconduct, bad faith or abuse of process, and that ordinary litigation errors or inelegant conduct do not justify such awards. The judgment also reinforces the liberal approach courts should take toward applications for amendment of pleadings under Rule 49, recognizing that such amendments serve to ascertain the real issues between parties and achieve justice. The case also contains valuable obiter dicta on the challenges of proving ownership of motor vehicles in Zimbabwe and the need for clearer regulatory frameworks regarding vehicle registration as proof of ownership.