Railings Enterprises (Pvt) Ltd v David Bruno Phiri Luwo and Rose Shingirai Luwo and Dowood Services (Pvt) Ltd

The dispute originated in 2013 when Railings Enterprises (applicant) sued Dowood Services (third respondent) for US$58,335.00 based on an acknowledgment of debt. The applicant obtained summary judgment, which Dowood appealed unsuccessfully to the Supreme Court (SC 13/15), with costs awarded on an attorney-client scale. Subsequently, the court lifted the corporate veil and held the first and second respondents (David Bruno Phiri Luwo and Rose Shingirai Luwo) personally liable for the debt (HB 53/16). The respondents filed multiple applications, including a "strange application" dismissed as frivolous (HB 278/17), and another application dismissed for want of prosecution (HC 166/18). On 23 July 2018, respondents filed an application for rescission of the judgment in HC 166/18 under Rule 63A, despite the judgment not being a default judgment. The rescission application was not set down for hearing within the prescribed time. Their legal practitioners (Mabundu & Ndlovu Law Chambers) renounced agency on 31 January 2019 after being threatened with costs de bonis propriis. On 16 August 2019, the applicant filed this application seeking dismissal of the rescission application for want of prosecution. At the hearing on 23 June 2020, respondents conceded to the dismissal but opposed costs on an attorney-client scale.

• Whether the application under HC 2034/18 should be dismissed for want of prosecution
• Whether costs should be awarded on a party-and-party scale or legal practitioner-client scale
• What constitutes an abuse of court process justifying punitive costs
• The principles governing the award of attorney-client costs

The application under cover of case number HC 2034/18; X-Ref. HC 166/18; X-Ref. HC 2005/17; X-Ref. HC 1355/16 was dismissed for want of prosecution. Respondents were ordered, jointly and severally (each paying the other to be absolved), to pay the costs of the rescission application (HC 2034/18) and the costs of this application on a legal practitioner and client scale.

Punitive costs on a legal practitioner-client scale are justified when a litigant's conduct amounts to an extreme abuse of court process, is vexatious, or is clearly without merit. The award of such costs is within the court's discretion and must be exercised judicially, taking into account the circumstances of each case, the conduct of the parties, and what would be fair and just. A rescission application under Rule 63A can only be brought in respect of default judgments; an order made after parties were represented in court is not a default judgment and cannot be rescinded under Rule 63A. The persistent filing of meritless applications over an extended period, coupled with failure to prosecute applications timeously and only conceding at the last moment, constitutes conduct worthy of the court's rebuke through punitive costs.

The court made several notable obiter observations: (1) It expressed concern about the conduct of Mabundu & Ndlovu Law Chambers in filing an apparently meritless application and then renouncing agency when threatened with costs de bonis propriis, though it refrained from rebuking them as they had not been given an opportunity to explain and the respondents appeared sophisticated in legal matters. (2) The court noted that the second respondent appeared conversant with legal procedures, had successfully argued a case before the Supreme Court, and understood the difference between party-and-party costs and attorney-client costs, such that the respondents were not prejudiced by appearing without legal representation. (3) The court quoted extensively from previous judgments in the same litigation, including Mathonsi J's colorful observation that "Some people simply will not settle a debt" and his statement that "Having danced to the tune it is now time to pay the piper." (4) The court noted that respondents had been through multiple legal practitioners, all of whom eventually renounced agency. (5) The court emphasized that the punitive costs mechanism exists to counteract reprehensible behavior and instill respect for the court and its processes.

This case demonstrates the Zimbabwean High Court's willingness to use punitive costs orders to deter abuse of court process and vexatious litigation. It provides guidance on when attorney-client costs are appropriate, emphasizing that such awards are exceptional and reserved for conduct that is clearly vexatious, reprehensible, or amounts to extreme abuse of court process. The case illustrates the court's intolerance of serial litigants who file meritless applications to frustrate creditors and delay execution. It also highlights the importance of proper use of rescission procedures under Rule 63A, which applies only to default judgments. The judgment demonstrates the court's concern about legal practitioners filing applications without merit and then renouncing agency when faced with costs de bonis propriis, though the court ultimately focused its rebuke on the litigants themselves given their apparent sophistication and pattern of behavior.