Smiths Super Track (Pvt) Ltd v Zimbabwe Electricity Transmission & Distribution Company (Pvt) Ltd

The respondent filed a claim against the applicant under HC 2038/16. On 14 March 2016, the applicant filed its appearance to defend and requested further particulars, which were served on 16 March 2016. The respondent had taken no action by 30 June 2016 when the applicant filed an application for dismissal of the respondent's claim for want of prosecution. On 11 July 2016, the respondent furnished the requested further particulars. At the hearing, the parties entered into a settlement by consent, agreeing to defer the matter to trial and for the applicant to file its plea within 10 days. The issue of costs was reserved for determination on papers, with both parties filing heads of argument.

• Whether the application for dismissal for want of prosecution was properly brought
• Which party should bear the costs of the application
• Whether costs should be awarded on a higher scale
• What factors should guide the court's discretion in awarding costs

The applicant was ordered to pay costs of suit on a legal practitioner-client scale (higher scale).

An application for dismissal for want of prosecution in a summons procedure should be used as a last resort. Where a party has requested further particulars and they are not timeously provided, the appropriate remedy is to apply for an order compelling provision of those particulars, rather than seeking dismissal for want of prosecution. A party who withdraws or abandons an application (as evidenced by consenting to an order that effectively withdraws the application) is treated as an unsuccessful party and should be ordered to pay costs unless there is good cause not to. Costs may be awarded on a higher scale (legal practitioner-client scale) where a party: (1) has adopted the wrong procedure; (2) failed to act diligently after receiving opposing papers; (3) persisted with an application in bad faith despite realizing it had no merit; and (4) thereby abused the court process by bringing a frivolous and vexatious application.

The court provided guidance on factors to consider when exercising discretion on costs, including: (a) conduct of parties leading to litigation, including reckless, willful, malicious, illegal or bad faith conduct; (b) objective reasonableness of applications and defences raised; (c) whether conduct requires costs awards that would deter others from asserting meritless claims; (d) reasonableness and diligence of parties and their attorneys; and (e) reasonableness in pursuing settlement. The court emphasized that costs normally follow the event, based on the principle that successful litigants should be indemnified from expenses incurred by being unjustifiably compelled to initiate or defend litigation. The court observed that in bringing proceedings, a party must reasonably believe it has chances of succeeding, and bringing proceedings without any chance of success amounts to abuse of court process.

This case reinforces important principles regarding the proper use of applications for dismissal for want of prosecution, emphasizing that such applications should be a last resort. It also provides guidance on the exercise of judicial discretion in awarding costs, particularly when a party should be penalized with costs on a higher scale. The judgment serves as a warning against abuse of court process and emphasizes the duty of parties to act diligently and in good faith, including the obligation to reassess one's position upon receiving opposing papers and to withdraw applications that lack merit.