Sakala Logistics (Pvt) Ltd v Gatehill Enterprises Private Limited and Others

This matter was set down for trial on 17 March 2025. Before trial, the plaintiff made oral applications for consolidation with HC 2638/21 and to expunge certain pleadings filed by the first and second defendants' erstwhile legal practitioners, Danzinger and Partners. This followed a judgment in Pinewood Logistics (Private) Limited & Anor v Gatehill Enterprises (Private) Limited & Anor HH 808/20 handed down on 16 December 2020, which ordered that Danzinger and Partners must cease to act for the defendants. However, Danzinger and Partners only renounced agency on 14 March 2025, three days before the trial date. The plaintiff raised the issue of expunging pleadings filed by the conflicted law firm at the first available opportunity on 17 March 2025. The court directed that the plaintiff file a written application and serve it on Mr Muchandiona (a legal practitioner at Danzinger and Partners). On 19 March 2025, the plaintiff had filed a substantive application (HCH 1260/25), which required proper notice and response time. Both oral applications were withdrawn by consent to avoid duplication. The trial stalled, with only the issue of wasted costs remaining for determination.

• Whether the plaintiff or defendants should bear wasted costs occasioned by the failure of the trial to commence on the scheduled date
• The appropriate scale of costs (legal practitioner and client scale versus costs in the cause)
• Which party was at fault for the trial stalling

The wasted costs occasioned by the failure of the trial to start on 17 March 2025 to be costs in the cause.

The binding legal principles established are: (1) The general rule that a party responsible for a case not proceeding on the day set down for hearing must pay wasted costs only applies to the party who was at fault or in default; (2) When a legal practitioner renounces agency at the eleventh hour (three days before trial) after having been prohibited from acting by court order years earlier, the opposing party is not at fault for raising objections to pleadings filed by that legal practitioner at the first available opportunity; (3) Where neither party is clearly at fault for a trial stalling, or where the trial court will be in a better position to ascertain the facts, wasted costs should be reserved as costs in the cause to be determined by the court hearing the trial; (4) The court's wide discretion on costs must be exercised with regard to all considerations bearing on the overriding objective of doing justice between the parties.

The court made observations about procedural fairness, noting that it would be inappropriate for serious allegations against a legal practitioner (Mr Muchandiona) to be argued and finalized without notice to him, and that he had a right to have notice of allegations and to defend his name. The court also noted that the characterization of the application (whether as an interlocutory application without a stand-alone case number or as a substantive application with a case number) was not of significance to the outcome, as the trial could not have proceeded in either event until the issue of the pleadings filed by Danzinger and Partners was resolved.

This case illustrates important principles regarding the award of wasted costs in Zimbabwean civil procedure. It emphasizes that wasted costs should only be awarded against a party who is at fault for a trial not proceeding. The judgment also addresses the practical consequences when legal practitioners continue to act for clients after being ordered to cease representation, and the impact this has on subsequent pleadings and procedural steps. The case reinforces that courts must consider all circumstances to do justice between parties when exercising discretion on costs, and that the trial court is often best positioned to determine costs at the conclusion of the matter rather than on interlocutory applications.