Njiki Family Mining Syndicate v Lomite Investments & 3 Ors

### Preamble
HB 77/22
HC 548/20
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NJIKI FAMILY MINING SYNDICATE

Versus

LOMITE INVESTMENTS

And

SEAL SKIN TRADING

And

JUDITH MIZHA

And

MINISTRY OF MINES

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 9 OCTOOBER 2020

Opposed Application

N. Mlala, for the applicant

No appearance for the 1st respondent

Ms S. Mhlanga, for the 2nd and 3rd respondents

MABHIKWA J: 	This matter appeared before me on 9 October 2020.  Mr N. Mlala appeared for the applicant whilst Ms S. Mhlanga appeared for the 2nd and 3rd respondents.

After a brief hearing, the parties settled the matter and agreed that an order by consent be made, to the following effect.

1.	That the Provisional Order is set aside as prayed for.

2.	The applicant pay costs of suit on the ordinary scale.

Ms S. Mhlanga for the 2nd and 3rd respondents who were the victors in the matter has asked for reasons for judgment regrading clause 2 of the order.

From the onset, I wish to state that it is generally undesirable to “ask for reasons for judgment” where an order was granted by consent of the parties.  If there was an error of any kind, especially if the parties had not intended to mean “ordinary costs”, then both parties (not one party) should approach the court and agree to seek rectification.  See Godza v Sibanda & Anor 2013 (2) ZLR 175 (H) HH 254-13 where the court re-iterated that;

“a court order has the same effect as a court judgement, even if it was granted by consent.  The parties must apply for an amendment to, or variation of, the court order if they want to depart from its terms.”

Also in Chivero and Ors v Mudzimu Unoyera Apostolic Church 1994 (2) ZLR 371 (S) where the court held that where a party has consented to judgment, the order granted in essence, is merely an agreement between the parties.  It is not a judgement requiring the court to make any findings of facts proved.  It is not a judgement against which a party may appeal.

See also Washaya v Wosh 1989 (2) ZLR 195 (HC).

Secondly, costs of suit, particularly punitive costs, are a matter of the court’s discretion.  A party claiming punitive costs must specifically plead and pray for them in the summons or draft order to an action or notice of opposition.  The party should go on to justify such costs during the hearing of the matter.  This was not done at all in this matter.  The court cannot ordinarily grant mero motu, costs that have not been prayed for and justified, let alone punitive costs.  Costs on an attorney and client scale, costs de bonis propis etc are punitive costs and must be justified by the party who needs them.  It is improper to simply assume that a Judge will know that costs on an ordinary scale have become “almost worthless” as has often been mentioned by parties through their lawyers.

Thirdly and after all, in their very last paragraph of the Notice of Opposition at paragraph (13.3), 2nd and 3rd respondents in the affidavit of Judith Mhizha pray for the setting aside of the Provisional Order sought with costs.  Legally, the terms “costs” or “costs of suit” refer to ordinary costs.  Punitive costs should specifically be so pleaded and sought.  The 2nd and 3rd respondents in casu cannot turn around and ask the court why it granted them costs which they themselves prayed for.  Further, when the consent order was granted, the parties did not specifically agree and advise the court that the costs of suit should be on an attorney and client scale.

The law is clear on punitive costs.  They are awarded where for instance it has been argued and shown, that the plaintiff or applicant has absolutely no basis or cause of action, or that the defendant or respondent has no conceivable defence to the plaintiff or applicant’s case.  Quite often and moreso, they are granted where the losing party has been prior warned by letter by the successful party to withdraw his baseless action or defence but he/she nonetheless persists with a hopeless claim or mala fide defence.  See Sibanda v Nyathi & Ors 2009 (2)

ZLR (H).

Costs on the higher scale are also awarded where it has been shown that by reason of special considerations, arising either from the circumstances which gave rise to the action or from the conduct of the losing party, the court considers it just to ensure that the successful party will not be out of pocket.

See: (i)	 Chadoka v Chombo (N.O) & Ors 2012 (2) ZLR 15 (HH 287012)

(ii) Mahembe v Mathambo 2003 (1) ZLR 149 (H) (HB 13-03)

(iii) John Strong (Pvt) Ltd & Anor v Wachemuka (1) 2010 (1) ZLR 151 (H)

(HH 44-19).

Sansole and Senda, applicant’s legal practitioners

V Chikomo Law Chambers, respondents’ legal practitioners