Tanganyika Housing Co-operative Society v Vadzidzi Vajesu Housing Cooperative Harare

In 2015, the applicant obtained a default judgment against the respondent in Case Number HC10103/14 ordering the respondent to vacate stands 6543-6598 of 315 Retreat Township Waterfalls. Eviction was partially carried out but the respondent remained in occupation of some stands. To stop further evictions, the respondent instituted multiple cases between 2024 and 2025 - a total of nine (9) cases. None were prosecuted to finality; they were either abandoned or dismissed by the registrar. These included: HCH64/24 (dismissed for failure to file answering affidavit after case management order); HCH650/24 (abandoned); three urgent applications ruled "not urgent" (HCH441/24 withdrawn, HCH649/24, HCH952/24); HCH852/24 (not prosecuted to finality); and HCH2037/24 (removed from urgent roll). The respondent then filed three new cases: HCH335/25, HCH375/25 and HCH377/25. The applicant, having incurred legal costs in opposing these matters without recovering costs, applied for security for costs of US$6000 per case (totaling US$18,000) under Rule 75(3) of the High Court Rules (2021).

• Whether the court should exercise its discretion to grant an order for security for costs under Rule 75(3) of the High Court Rules (2021)
• What constitutes appropriate conduct justifying an order for security for costs
• How to balance access to justice against protection of a party from financial prejudice caused by repeated litigation
• What is a reasonable amount for security for costs

The application was granted with modification. The respondent was ordered to pay USD$1,500 as security for costs per each case (HCH 335/25, HCH 375/25 and HCH 377/25), to be paid to the Registrar of the High Court within one month. Should the respondent fail to pay security costs, the three cases shall be deemed abandoned and dismissed. If the respondent pays security costs for any one matter, it will be entitled to prosecute that matter. The respondent shall pay costs of the application on an ordinary scale.

An order for security for costs is entirely within the court's discretion and is a rule of practice, not substantive law. When exercising discretion to grant security for costs, the court must balance: (1) the legitimate right of a party to access justice and seek redress from the courts; (2) the need to protect the opposing party from financial prejudice where there is demonstrated conduct of instituting multiple proceedings, abandoning them, failing to comply with procedural rules, and not paying costs; and (3) ensuring the amount ordered is not extortionate but reasonable and proportionate to safeguard the successful party's ability to recover costs. A pattern of reckless litigation - including successive applications ruled not urgent, failure to prosecute matters to finality, procedural irregularities, and non-payment of costs - justifies an order for security for costs. However, the amount must consider the financial capacity of the party ordered to pay and must not unduly restrict access to justice.

The court observed that litigation is serious business requiring diligent handling of legal issues, as orders for costs can be crippling. The court noted that the respondent's conduct could qualify as acts of harassment meant to wear out the applicant, given the pattern of filing cases fraught with procedural irregularities and leaving them idle. The court commented that it is easy for a litigant who is not feeling the pinch of financial loss to make endless applications to court, suggesting that financial consequences serve to ensure litigants approach courts bona fide. The court also observed that litigants must be aware that litigation comes with the burden of costs and cannot institute endless proceedings without regard to financial repercussions on their adversary. The court emphasized that in seeking security for costs, the idea is not to cripple the other party by asking for exorbitant amounts but to cushion against eventualities if matters are dismissed.

This case is significant in Zimbabwean civil procedure (applicable to South African law principles on security for costs) as it clarifies the court's discretionary power to grant security for costs under procedural rules when a litigant demonstrates a pattern of instituting and abandoning proceedings without paying costs. It establishes important principles on balancing access to justice against protection from vexatious litigation. The judgment provides guidance on assessing appropriate amounts for security for costs, emphasizing that courts must not impose extortionate amounts that effectively deny access to justice, particularly where the party is an entity like a co-operative society without demonstrated financial capacity. The case illustrates how courts scrutinize litigant conduct - including procedural non-compliance, abandonment of matters, and failure to pay costs - when exercising discretion on security for costs applications.