Zimbos (Private) Limited and Assetfin (Private) Limited v Ellah Mbaiwa

The respondent entered into three agreements with the appellants on 12 October 2001 to purchase stands 810, 811, and 697 of Subdivision Lot 2A Bluff Hill Townships for a total purchase price of $1,518,804. The respondent failed to secure a bank loan within the stipulated seven days to pay the balance. On 21 January 2002, the appellants issued written notice requiring the respondent to remedy the breach within seven days, failing which the agreements for stands 811 and 697 would be cancelled. On 31 January 2002, the respondent paid $1,220,043.90 by bank cheque, bringing total payments to $2,166,042.86, which was $647,238.86 over the total purchase price. Despite the respondent purging her breach within the seven-day period, the appellants cancelled the agreements on 4 February 2002. When the respondent demanded transfer, the appellants refused, insisting the cancellations were valid. The respondent applied to the High Court for an order of transfer of the three stands. The appellants opposed, denying receipt of full payment and claiming the cancellations were valid, though stating they might transfer stands 810 and 811 out of compassion. The High Court granted transfer of stands 810 and 811 but refused transfer of stand 697 and the refund, and ordered the appellants to pay costs of suit.

• Whether the High Court erred in ordering the appellants to pay costs of suit when the appellants' version of events was largely accepted
• Whether the respondent should pay costs where she was only partially successful in her claim
• What is the appropriate costs order where a party succeeds on some claims but fails on others
• Whether the cancellation of the sale agreements was valid

The appeal succeeded with costs. The High Court's costs order in paragraph 3 was set aside and substituted with: (3) That the 1st and 2nd Respondents pay the applicant costs in respect of the claim of transfer of stands 810 and 811. (4) The claim in respect of the transfer of stand 697 and the refund of the sum of $647,231.86 be and is hereby dismissed with costs.

Where a party is partially successful in litigation, having succeeded on substantial claims but failed on others, the costs order should be apportioned to reflect the outcome of each discrete claim rather than awarded globally. A party who succeeds on substantial claims is entitled to costs in respect of those claims, while the unsuccessful party is entitled to costs in respect of claims that were dismissed. When a party adopts an equivocal position denying the other party's rights and forces that party to approach court to establish those rights, they may be liable for costs in respect of claims where the applicant ultimately succeeds, even if proceeding by way of application rather than action.

The court observed that there would have been no need for the appellants to declare that the respondent had no right to claim transfer of stands 810 and 811 if there had truly been a subsequent agreement for transfer of these stands out of compassion. The court noted that the respondent 'legitimately' sought court intervention given the appellants' equivocal and contradictory position regarding her rights. The court also implicitly criticized the appellants for their inconsistent position of claiming compassion while simultaneously denying the respondent had any legal rights to enforce.

This case establishes important principles regarding costs orders in Zimbabwean civil litigation where a party achieves partial success. It reinforces the principle that costs should follow the event on a claim-by-claim basis rather than being awarded globally to the overall successful party. The judgment clarifies that where a party succeeds on substantial claims but fails on others, the costs order should be apportioned to reflect the success and failure on each discrete claim. It also demonstrates that a party who adopts an equivocal position and forces the other party to approach court to establish clear rights may be liable for costs even if their ultimate position is partially vindicated.