Motor Insurance Pool of Zimbabwe v Tracy Irene Mark (formerly known as Tracey Irene McAninch) and Others

The applicant (Motor Insurance Pool of Zimbabwe) sought an order for security for costs against the respondents in terms of Rule 75(3) of the High Court Rules, 2021. The respondents, who appear to be citizens of Zimbabwe but residing outside the country (peregrini), contested the demand for security for costs on three grounds: (1) they are citizens of Zimbabwe and therefore should not pay security for costs; (2) sections 35 and 56(1) of the Constitution bar discrimination and protect them from such payment; and (3) the requirement for costs is a rule of practice which the court can choose not to enforce. Notably, the respondents did not declare ownership of any immovable property in Zimbabwe.

• Whether peregrini plaintiffs (persons outside the territorial jurisdiction) can be required to provide security for costs even if they are citizens of Zimbabwe
• Whether the demand for security for costs violates constitutional provisions against discrimination (sections 35 and 56(1) of the Constitution)
• Whether Rule 75 of the High Court Rules, 2021 is a mandatory rule or merely a rule of practice that the court may choose not to enforce
• What factors should be considered when exercising discretion in determining whether to grant security for costs

The application for security for costs was granted. The respondents were ordered to pay security for the applicant's costs in HCBC1237/24 and proceedings in that case were stayed pending payment. A detailed procedural framework was established: (1) within 7 days, the applicant must deliver notice of the proposed amount; (2) within 7 days thereafter, the respondents must respond; (3) if there is disagreement, the matter is referred to the Registrar who has 14 days to determine the amount, form and manner of payment (this decision being final under Rule 75(2)); (4) respondents must pay within 21 days of the Registrar's decision or face potential dismissal of their claim; (5) the respondents were ordered to pay the costs of this application.

A peregrinus (person outside the territorial jurisdiction of the court) who initiates proceedings in Zimbabwean courts must, as a general rule, give security for costs unless they have immovable property within Zimbabwe with sufficient unencumbered value to satisfy any costs that may arise. This rule applies even to persons who claim citizenship of Zimbabwe if they have no meaningful links with the country and no immovable property within the jurisdiction. The purpose of the rule is to protect the incola (resident within the jurisdiction) from being unable to recover costs if successful in the litigation, given the practical difficulties of executing a costs order in a foreign jurisdiction. Citizenship alone, without domicile or property within the jurisdiction, is insufficient to resist an order for security for costs. The constitutional provisions against discrimination (sections 35 and 56(1)) do not override this procedural rule of practice designed to ensure access to effective remedies for local residents.

The court noted that the rule requiring security for costs originated from old practice of courts rather than from any definite substantive law, and likely originated from the custom of requiring all plaintiffs to give security. NDUNA J cited with approval the factors identified in Prosecutor-General v Nzinu for exercising discretion in security for costs matters: (i) residential circumstances and domicile of the foreigner, particularly whether they have a fixed address and whether the court's orders can be executed in their country of residence; (ii) the financial circumstances of the foreigner, so as not to place access to justice beyond their means; and (iii) the character of the foreigner and whether they appear to be a person of honour and integrity. The court observed that while it has discretion to dispense with security in exceptional cases, such discretion should be exercised sparingly. The judgment also noted that the doctrine requiring immovable property as a defense to security for costs has not been extended to include movable property.

This case clarifies the application of security for costs principles in Zimbabwean law, particularly in the context of plaintiffs who claim citizenship but have relocated abroad and own no immovable property within Zimbabwe. It reinforces the primacy of domicile and substantial connection over mere citizenship status when determining whether a party is a peregrinus for purposes of security for costs. The judgment also confirms that constitutional non-discrimination provisions do not override the long-established common law rule protecting incolae from the risk of unrecoverable costs when sued by peregrini. The case demonstrates that security for costs is not a substantive right but a procedural protection, and that courts will apply the rule to protect local litigants from the practical difficulties of enforcing cost orders against defendants residing abroad, regardless of citizenship claims.