Phillip Zinyama v A Makosa and Goodness Kativhu and Innocent Kativhu

The applicant brought a review application challenging the taxation of a bill of costs in terms of Rule 72(26) of the High Court Rules, 2021. The taxation included an item for advocate's fees in the sum of US$2,000, supported by a pro forma invoice and acknowledgement of receipt. The taxing officer filed a report under Rule 72(27) recording that the parties failed to agree on advocate's fees, that a reduction was suggested by the respondents, and that the taxing officer allowed US$2,000 because a letter of non-opposition was served only on the day of hearing and counsel had prepared and attended. The applicant disputed the accuracy of the taxing officer's report on critical points through a supporting affidavit, including whether any offer was made and whether the taxing officer disregarded written and oral submissions. The dispute thus involved both the quantum of the advocate's fee and conflicting factual accounts of what transpired during the taxation hearing.

• Whether the application satisfied the procedural requirements of Rule 72(28) sufficiently to be entertained
• Whether grounds for review of the taxing officer's discretion had been established
• Whether the taxing officer properly exercised discretion in allowing advocate's fees of US$2,000, particularly in relation to necessity and reasonableness under Rule 72(3) and Rule 72(8)(a)
• What the appropriate remedy should be, including whether the matter should be remitted and to which taxing officer
• Whether a reasonable apprehension of bias or irregularity existed warranting allocation to a different taxing officer

The taxation impugned in the application (including the allowance of advocate's fees of US$2,000) was set aside. The matter was remitted to the Registrar for allocation to a different taxing officer (or assistant taxing officer) for de novo taxation of the disputed bill/items, with directions that: (a) the taxing officer shall apply Rule 72(3), Rule 72(8)(a), and where relevant Rule 72(5) of the High Court Rules, 2021; (b) the taxing officer may require production of supporting documentation for disputed disbursements; (c) the parties may file concise written submissions limited to the disputed items at least 48 hours before the taxation date fixed by the taxing officer. Each party was ordered to bear its own costs.

The binding legal principles established are: (1) A court will interfere with a taxing officer's discretion only where the officer acted on a wrong principle, failed to exercise discretion, was grossly unreasonable, or was clearly wrong on an item. (2) In relation to counsel fees claimed as disbursements, the taxing officer must enquire into necessity and reasonableness as required by Rule 72(3) and Rule 72(8)(a); allowing fees without bringing the mind to bear on the propriety of recovery is reviewable. (3) Where the taxation discretion has arguably not been properly exercised and the record does not allow the court to fix quantum without itself descending into taxation, a de novo taxation is the appropriate remedy rather than substitution. (4) Where a taxing officer's account of the taxation proceedings is itself a central disputed question in the review, the interests of justice and integrity of the taxation process require that fresh taxation should not take place before the same officer, and the matter should be allocated to a different taxing officer. (5) Compliance with Rule 72(28) should be assessed substantively rather than purely formalistically; where the dispute is concrete and identifiable and the respondents have engaged on the merits, the review threshold is met.

The court observed that procedural requirements in court rules are to be obeyed, but the question is whether the defect defeats the substance of the review mechanism. The court noted that Zimbabwean authority warns that where mandatory requirements are ignored, the initiating process may be defective in a manner not cured by later supplementation. The court cited Cone Textiles (Pvt) Ltd v C. Pettigrew (Pvt) Ltd and Anor 1984(1) ZLR 274 (SC) as recognising substitution power where the court is "at large", while also recognising that remedial choice remains discretionary and context-dependent. The court commented on the overarching principle of impartial adjudication requiring that any reasonable apprehension of bias must be examined objectively, and that the apprehension must itself be reasonable; mere suspicion is insufficient. The court expressly made no finding of actual bias. The court also noted that Rule 72(1) recognises that registrars may designate assistant taxing officers, making it competent and practical to direct re-allocation to a different taxing officer.

This case is significant in Zimbabwean civil procedure because it clarifies the scope of review of taxation of costs under the High Court Rules, 2021, particularly Rule 72. It reinforces that taxing officers must actively enquire into the necessity and reasonableness of counsel fees claimed as disbursements, and cannot allow fees merely on a superficial basis. The judgment establishes that where a taxing officer's account of taxation proceedings is itself disputed on material facts, the interests of justice require that a fresh taxation be conducted by a different taxing officer, even in the absence of an actual finding of bias. The case provides important guidance on procedural compliance with Rule 72(28), adopting a substantive rather than purely formalistic approach. It also confirms the court's discretion to choose between substitution and remittal as remedies in taxation reviews, favouring de novo taxation where the taxing discretion has arguably not been properly exercised and the record does not permit the court to fix quantum without itself descending into taxation.