Sanctuary Insurance Company (Private) Limited v Micromart Zimbabwe (Private) Limited and Others

The Applicant instituted legal proceedings against the Respondents under case number HC 9923/14. The Respondents filed a special plea which was granted with costs on a party-to-party scale on 16 January 2019. On 2 September 2020, the bill of costs was taxed by the third respondent (taxing officer) who approved a total of $8,708 (in United States dollars). A writ of execution was issued on 3 September 2020 and executed on 15 September 2020 when three vehicles were attached. Applicant's legal practitioners advised the Sheriff that the granting of costs in hard currency was a mistake as the costs constituted liabilities incurred before 22 February 2019 and in view of Statutory Instrument 33 of 2019, costs could not be allowed in United States dollars. Applicant paid ZW$8,708 into the sheriff's account and the vehicles were initially released, but on 30 October 2020, household goods were placed under judicial attachment. Applicant then filed this application on 3 November 2020 seeking condonation for non-compliance with Order 38 Rule 314(1) of the High Court Rules, 1971, which required an application for review to be filed within four weeks of taxation (by 12 October 2020). The delay was 15 working days or 22 calendar days.

• Whether condonation should be granted for the late filing of an application for review of a taxed bill of costs
• Whether the delay of 15 working days (22 calendar days) was inordinate
• Whether there was a reasonable explanation for the delay
• Whether the prospects of success in the review application were sufficient
• Whether the taxed bill was properly denominated in United States dollars in light of Statutory Instrument 33 of 2019
• Whether the bill was properly taxed on a legal practitioner and client scale when the court order granted costs on a party-to-party scale
• Whether the taxing officer was properly cited (point in limine raised by respondents)

1. Condonation of non-compliance with Order 38 Rule 314 of the High Court Rules 1971 was granted to the applicant. 2. The applicant was granted leave to file an application for review of the decision of the taxing officer dated 2 September 2020 under case number HC 9923/14 within seven days from the date of the order. 3. Each party to bear its own costs.

Where an application for condonation of late filing is brought, the court must weigh the factors identified in Director of Civil Aviation v Hall (extent of delay, explanation for delay, prospects of success, and prejudice) against each other, as they are not individually determinative. A reasonable explanation for delay, coupled with an arguable case on the merits and considerations of justice, may justify granting condonation even where some prejudice will be suffered by the opposing party, particularly where that party contributed to the circumstances giving rise to the delay. The interests of justice may favour granting condonation to allow the merits to be determined and achieve finality, rather than disposing of a matter on a procedural technicality.

The court observed that where legal practitioners are blamed for a default, it is necessary for the litigant to avail proof, preferably in writing, that it has demanded an explanation from the legal practitioners concerned (citing Paul Gary Friendship v Cargo Carriers Limited & Anor SC 1/13). The court noted that there may be times when a slight delay and good explanation may compensate for weak prospects of success, and strong prospects of success may compensate for a long delay (citing Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A)). The court also observed that prospects of success, a reasonable explanation for delay, and the importance of issues raised may compensate for a long delay (citing South African Poultry Association and Others v Minister of Trade and Industry and Others 2018 (1) NR 1 (SC)).

This case is significant in Zimbabwean jurisprudence as it demonstrates the application of condonation principles in the context of taxation of costs and the need to balance factors such as delay, explanation, prospects of success, and prejudice. It reinforces that these factors are not individually determinative but must be weighed against each other. The case also highlights the importance of the interests of justice in determining whether condonation should be granted, particularly where delays by both parties have contributed to the situation. The case touches on the important issue of currency denomination in bills of costs in the context of Statutory Instrument 33 of 2019, which was a significant legal development in Zimbabwe relating to currency obligations.