Nyika Solomon Tichaona v Wenzilas Mungodza

The applicant and respondent resided in villages under Chief Nhema in Zaka, Masvingo and were members of the same church. In November 2004, the respondent found the applicant in a compromising position with his wife near a riverbed and accused the applicant of having an affair with her. The applicant reported the matter to the Village Headman who ruled he had not committed misconduct. The respondent continued to harass the applicant, leading the applicant to obtain a peace order and interdict against the respondent at Zaka Magistrate Court under Case No. GL 220/14 (no costs ordered). The respondent continued to tarnish the applicant's reputation, alleging he had snatched his wife. The applicant then sued the respondent for defamation under Case No. GL 231/14, which was dismissed with no order as to costs. In retaliation, the respondent instituted proceedings under Case No. GL 77/15 claiming damages for contumelia, loss of earnings for attending court, and costs incurred defending Case No. GL 231/14. The Magistrate Court dismissed the claims for contumelia and loss of earnings but ordered the applicant to pay US$500.00 being reimbursement of costs incurred by the respondent in defending Case No. GL 231/14. The applicant brought a review application challenging this order.

• Whether the Magistrate Court erred in ordering the applicant to pay US$500.00 as costs incurred by the respondent in defending Case No. GL 231/14 when no costs order was made in that case
• Whether there exists a cause of action in civil proceedings for payment of legal costs founded on failed prosecution of a matter where no costs order was made
• Whether the applicant was denied the opportunity to call witnesses

1. The application for review was dismissed. 2. The applicant was ordered to pay costs on a legal practitioner and client scale.

A litigant who successfully defends litigation may claim as damages the actual expenses incurred in that defense, even where no costs order was made in the original proceedings, provided such expenses are proven on a balance of probabilities as a factual matter. Such a claim is distinct from an application for costs and constitutes a legitimate cause of action for damages. The distinction between "costs" (as a legal order) and "expenses" (as actual disbursements that may be claimed as damages) is particularly relevant where parties are self-actors who did not incur legal practitioner fees.

The court observed that the trial Magistrate used the word "costs" instead of "expenses" because the parties were self-actors before the court a quo. This linguistic conflation, while technically imprecise, did not affect the substance of the claim, which was for expenses actually incurred and proven. The court also noted that the applicant's complaint about not being able to call witnesses lacked merit, as the material evidence consisted of the judgments from previous cases which spoke for themselves.

This case clarifies the distinction between a court-ordered costs award and a substantive claim for expenses/damages incurred in defending previous litigation. It demonstrates that where litigants are self-actors, they may claim as damages the actual expenses incurred in defending unsuccessful litigation against them, provided such expenses are proven on a balance of probabilities. The case also reinforces that review proceedings will not succeed merely because a party disagrees with findings of fact made by a lower court, particularly where those findings were based on evidence properly before the court.