The respondent instituted proceedings against the applicant in case No. HC 1534/11 seeking payment of US$47,059.80 for household goods sold and delivered on credit. The applicant entered appearance to defend, prompting the respondent to apply for summary judgment (case No. HC 2474/11). When the summary judgment application was heard on 8 September 2011 by Bere J, the applicant was in default. Summary judgment was granted for US$47,059.80 with interest at 5% per annum (not the 36% claimed) plus attorney and client costs. After being served with a writ of execution, the applicant paid US$20,000 towards the debt but failed to clear the balance by the agreed date of 31 March 2012. The respondent provided a breakdown showing a balance of US$38,637.89 owing, including attorney and client costs and collection commission. The applicant disputed this calculation and now sought condonation for late filing of an application for rescission of the judgment.
The application for condonation was dismissed with no order as to costs.
Rescission of judgment is not the appropriate remedy for disputes concerning the calculation or taxation of costs awarded by a court order. Where attorney and client costs are in dispute, such disputes must be resolved through the taxation of a bill of costs by the taxing officer, not by seeking rescission of judgment. Collection commission, being an attorney and client charge, can be determined by reference to Law Society regulations, and interest can be ascertained by reference to the court order itself. An applicant seeking condonation for late filing must demonstrate, inter alia, that the intended application has reasonable prospects of success, and failure to do so will result in the refusal of condonation.
The court observed that the applicant was legally represented and her legal practitioners should have been aware that disputes over costs cannot be resolved through rescission applications. This comment suggests judicial concern about the quality of legal advice provided to the applicant. The court also noted with apparent approval that the applicant had demonstrated initial willingness to comply with the court order by making a substantial down payment of US$20,000, though this was ultimately insufficient to warrant granting the relief sought.
This case reinforces important procedural principles in Zimbabwean civil litigation regarding the appropriate remedies for disputing costs. It clarifies that rescission of judgment is not the proper mechanism for challenging the calculation or taxation of costs awarded in a court order. Parties disputing attorney and client costs must utilize the taxation process before the taxing officer. The judgment also serves as a reminder of the stringent requirements for condonation applications, particularly the need to demonstrate reasonable prospects of success in the intended substantive application.