Rufaro Mining and Geological Services (Private) Limited v The Association for the Development of Small Scale Mines

The respondent obtained summary judgment against the applicant and two others in October 2001 (HC 17275/99). The applicant appealed to the Supreme Court in November 2001. In December 2001, the respondent filed an urgent application for leave to execute upon the judgment. On 10 December 2001, the court granted leave to execute in the absence of the applicant and its legal practitioner, despite proper service of the application and notice of set down. The legal practitioner blamed his secretary for not passing on the notice of set down. The applicant subsequently filed an application for rescission of the 10 December 2001 order but failed to simultaneously file an application for stay of execution. The applicant then brought this urgent application seeking to stay execution pending the rescission application. The applicant owed the respondent over $3.4 million based on an Acknowledgement of Debt dated 5 May 1998.

• Whether the applicant established a prima facie case for a provisional order under Order 32 Rule 246(2)
• Whether the applicant would suffer irreparable harm if the application was not granted
• Whether the balance of convenience favoured granting the stay of execution
• Whether costs de bonis propriis should be awarded against the applicant's legal practitioner for professional negligence

The application was dismissed with costs de bonis propriis against the applicant's legal practitioner.

1. An applicant seeking a provisional order under Order 32 Rule 246(2) must establish a prima facie case and demonstrate that irreparable harm will result if the order is not granted. 2. Self-created urgency resulting from a legal practitioner's negligence in failing to attend properly served proceedings and failing to file necessary applications timeously will not justify granting urgent relief. 3. Costs de bonis propriis against a legal practitioner are justified in cases of professional negligence of a serious degree, including where a legal practitioner fails to attend properly served court proceedings. 4. Legal practitioners cannot escape liability for costs de bonis propriis by blaming their support staff for their own professional failures.

The court observed that there is a tendency to award costs de bonis propriis only in reasonably serious cases such as dishonesty, wilfulness or negligence in a serious degree. The court commented that courts should not let errant legal practitioners get away with light censure by blaming their support staff, suggesting this had become a "convenient escape route in cases of professional negligence." The court also noted that on balance of convenience, the respondent had already suffered damage by delay in the matter, while the applicant could easily recover any amounts from the respondent if successful in the rescission application.

This case is significant for establishing the circumstances in which Zimbabwean courts will award costs de bonis propriis (from the legal practitioner's own pocket) against negligent legal practitioners. It demonstrates that courts will not accept excuses that blame support staff for professional failures, and that serious professional negligence, including failure to attend properly served court proceedings and failure to take prudent procedural steps, warrants personal cost orders against the legal practitioner rather than their client. The case also illustrates the requirements for establishing urgency and a prima facie case for provisional orders, particularly that self-created urgency will not be countenanced.