Augustus Close Holdings (Private) Limited v Taxing Officer and The Farmakas Trust and Antony Antoniou and Paidamoyo Kurunere and Carol Hobbart and John George Sampson and City of Harare and Director of Works

### Preamble
1
HH 668-25
HCH3074/24
EX TEMPORE
AUGUSTUS CLOSE HOLDINGS (PRIVATE) LIMITED
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EX TEMPORE

AUGUSTUS CLOSE HOLDINGS (PRIVATE) LIMITED
versus
TAXING OFFICER
and
THE FARMAKAS TRUST
and
ANTONY ANTONIOU
and
PAIDAMOYO KURUNERE
and
CAROL HOBBART
and
JOHN GEORGE SAMPSON
and
CITY OF HARARE
and
DIRECTOR OF WORKS

HIGH COURT OF ZIMBABWE
DEME J
HARARE, 21 and 27 October 2025

Opposed Application

Mr T Nyahuma, for the applicant.
Adv RH Goba with Mr C Venturas, for the 2nd-5th respondents.
No appearance for the 1st and 6th-8th Respondents.

DEME J: The Applicant approached this court through an application for review in terms of Rule 72(26) and (28) of the High Court Rules, 2021. The application was based on the following grounds:


“1. The first Respondent committed a gross irregularity and erred at law by accepting second to fifth Respondents’ Bill of Costs absent a court order granting the costs claimed.

2. The first Respondent’s decision to tax costs in terms of second to fifth Respondents’ Bill of Costs was grossly unreasonable in the absence of a court order granting the costs.”

The Applicant prayed for the following relief:

“1. The application is granted.

2. The Bill of Costs taxed and awarded in case HC 4608/23, be and is hereby set aside.

3. Any Respondent(s) who oppose(s) the application, shall, jointly and severally bear costs of suit on a higher scale.”

On 11 August 2023, in case number HCH 4608/23, this court granted an interim order in favour of the second to fourth Respondents suspending Applicant’s construction works at Stand Number 531 Mount Pleasant Township. The interim order did not provide for costs. The Applicant averred that the first Respondent made a decision for taxation of costs which saw the Applicant being directed to pay the sum of US$16 500. The Applicant contended that the first Respondent grossly erred by taxing costs in the absence of the court order. The Applicant further claimed that the decision for taxation of costs in the absence of the court order by the first Respondent was grossly unreasonable.

The application was opposed by the second to fifth Respondents (hereinafter called “the Respondents”) who raised numerous points *in limine* which were eventually abandoned on the day of hearing. On the merits, the Respondents argued that the bill of costs agreed to by the parties was based on the withdrawals of the opposing papers and Heads of Argument made by the Applicant in case number HCH4608/23. According to the Respondents, in withdrawing the opposing papers and Heads of Arguments, the Applicant tendered costs.

The Applicant insisted that the notice of taxation is dated 23 November 2023, while the withdrawals were done on 13 March 2024. Mr. Nyahuma argued that the taxation of costs under such circumstances cannot be based on the withdrawals. He further submitted that the taxation itself is up to 18 August 2023.

The Respondents argued that the Applicant consented to the taxation in the sum of US$16 500. They further averred that the Applicant is still bound by its consent that it granted before the decision was finally confirmed by the first Respondent. The Respondents further alleged that such a decision, which was reached through consensus, cannot be set aside through an application for review.

The question which emerges for determination is whether the first Respondent’s decision may be set aside by application for review.

Although the Applicant did not expressly admit in the pleadings that it granted consent to the taxation of costs, Mr. Nyahuma, through oral submissions, made a concession that the Applicant consented to the bill of costs. He, however, submitted that the consent was erroneously granted under the mistaken view that there was a court order. He further contended that such a decision ought to be set aside on the basis of an error which was common to all parties. He referred the court to the case of *Folly Cornish (Pvt) Ltd and Anor v Tapomwa and Ors*¹, where the Supreme Court superlatively remarked as follows:

“The fact that the appellants did not apply for the rescission of the default judgment issued by the Magistrates’ Court is, in the circumstances, irrelevant.

Having found that the order of the Magistrates’ Court was null and void, that really should be the end of the matter. Clearly the transfer to the second respondent was based on an order that was a nullity. I find no basis upon which the order sought in the High Court could be refused. Section 8 empowers the Registrar to cancel a deed of transfer upon an order of court. I have no difficulty in issuing such an order. In any event this is a proper case for this Court, in the exercise of its review powers, to set aside the transfer. Indeed the court a quo could have done the same.”

Adv *Goba* argued that the parties are bound by the compromise agreement. He additionally argued that the parties agreed on costs despite the fact that the interim order granted in case number HCH4608/23 did not provide for such costs. He further contended that whether or not there is an order of the court is irrelevant. Adv Goba submitted that as long as the parties agreed on costs, the parties must be bound by the agreement. He referred the court to Rule 72(4) which provides that:

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¹ SC26/14.


“A taxing officer may tax all bills of costs for services (other than conveyancing) actually rendered by a legal practitioner or by a notary public in his or her capacity as such, including disbursements made, whether in connection with litigation or not, and whether the work was done before or after the date on which the rules came into operation.”

It is not disputed that the parties reached an agreement on the question of costs. Our jurisdiction has established that a compromise agreement can vary the court order. Thus, although the interim order in case number HCH4608/23 did not provide for costs, the parties agreed to vary this agreement. Once parties have reached a compromise agreement, all parties are bound by the agreement. Any attempt to vary the compromise agreement cannot be made by way of an application for review. The application for review presumes that there was no agreement between the parties.

The definition and effects of a compromise agreement have been widely discussed in our jurisdiction. DUBE J (now JP), in the case of Golden Beams Development (Pvt) Ltd v Mabena², remarked as follows:

“15. A compromise is defined by RH Christie in Business Law in Zimbabwe at p 108 as follows,

“Compromise is the settlement by agreement of disputed obligations and is a form on novation, replacing the disputed obligations by the obligations created by the agreement of compromise”.

16. In Georgias and Anor v Standard Chartered Bank SC 183/98 as follows;

“Compromise, or transactio, is the settlement by agreement of disputed obligations, or of a lawsuit the issue of which is uncertain. The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something - either diminishing his claim or increasing his liability. See Cachalia v Harberer & Co 1905 TS 457 at 462 in fine; Tauber v Von Abo 1984 (4) SA 482 (E) at 485 G-I; Karson v Minister of Public Works 1996 (1) SA 887 (E) at 893 F-G. The purpose of compromise is to end doubt and to avoid the inconvenience and risk inherent in resorting to the methods of resolving disputes. Its effect is the same as res judicata on a judgment given by consent. It extinguishes ipso jure any cause of action that previously may have existed between the parties, unless the right to rely thereon was reserved. See Nagar v Nagar 1982 (2) SA 263 (ZH) at 268 E-H. As it brings legal proceedings already instituted to an end, a party sued on a compromise is not entitled to raise defences to the original cause of action. See Hamilton v van Zyl 1983 (4) SA 379 (E) at 383H. But a compromise induced by fraud, duress, justus error, misrepresentation, or some other ground for rescission, is voidable at the instance of the aggrieved party, even if made an order of court. See Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co Ltd and Ors 1978 (1) SA 914 (A) at 922H.” See also FBC v Hwenga 2016 (1) ZLR 451(H).”
 17. A compromise agreement is an agreement of the parties to amicably settle a dispute. A compromise agreement is a contract and is governed by the general principles of contract law. The formalities of a compromise are, offer and acceptance, consideration and capacity to enter into the contract. There must be mutual intent to settle the dispute and bring it to an end and reciprocal concessions in settlement of the dispute.

18. A compromise enables the parties to settle the dispute outside court. The compromise agreement has the effect of creating new rights and obligations between the parties separate from the original cause of action. It extinguishes the original cause of action which becomes res judicata thereby creating new obligations. Once a compromise agreement has been entered into, the defendant has no entitlement to raise defences to the original cause of action.”

Given that the decision sought to be challenged was mutually concluded by the parties, it is apparent that such an agreement undoubtedly varied the judgment of this court in case number HCH4608/23 as established by the case of *Golden Beams Development (Pvt) Ltd v Mabena supra*. Thus, having consensually reached a decision for the bill of costs, the Applicant must be aware that the interim order of 11 August 2023 in case number HCH4608/23 was varied. Any attempt to depart from this agreement cannot certainly be by way of the present application.

In my view, a decision for bill of costs reached through consent of parties and ultimately endorsed by the taxing officer is just as good as an order by consent reached in terms of Rule 21. The Rule provides as follows:

“(1) Save in actions for relief affecting status, at any time after service of summons a defendant may consent, in whole or in part to judgment without appearing in court and such consent to judgment shall be in writing and signed by the defendant personally or by a legal practitioner who has entered appearance to defend on his or her behalf and where the defendant has personally signed a consent to judgment, his or her signature shall either be witnessed by a legal practitioner acting for such defendant and not for the plaintiff or be verified by affidavit and upon filing a consent to judgment with the registrar the plaintiff may make a chamber application for judgment and thereafter a judge may give judgment according to the consent.

(2) A judgment given by consent under these rules may be set aside by the court and leave may be given to the defendant to defend, or to the plaintiff to prosecute the action and such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court considers just.”

Rule 21(2) provides the basis upon which the order by consent may be set aside. The Applicant who wishes to have the order by consent set aside must demonstrate good and sufficient cause. This is not what the Applicant did. The Applicant chose to lodge an application for review, thereby ignoring the fact that the decision endorsed by the first Respondent was reached through the consensus of the parties. For this reason, it is palpably clear that the Applicant did not use the correct avenue in seeking to upset the order by consent. In the premises, the present application is improperly before the court.

Given that the Applicant may wish to approach the court via the correct channel, I am of the view that this matter must be struck from the roll. A dismissal will prevent the Applicant from approaching the court on the basis of the correct cause of action. Reference is made to the case of Stanley Nhari v Robert Gabriel Mugabe and Others\(^3\), where, in paragraph 45, the Supreme Court opined as follows:

“[45] I am inclined to agree with the appellant that the order dismissing the entire claim was, in the circumstances, improper. The court had found that it had no jurisdiction to entertain the claims because such claims lay in the province of labour. Having so determined, there was therefore nothing that remained before the court. There was nothing further to dismiss. In Edward Tawanda Madza & Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Tirivavi (4) The Dutch Reformed Church SC 71/14 this Court remarked as follows:-
“It is a contradiction in terms to dismiss a matter on the twin bases that it not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination. The effect of the dismissal on the latter basis is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.” (at pp 8 – 9 of the judgment)”

Costs ordinarily follow the outcome. No amount of persuasion was advanced by any party for the court to have a departure from this conventional practice. I am of the view that an order that the Applicant must pay costs of suit on an ordinary scale is appropriate in the circumstances. Such costs are reasonably sufficient. Consequently, it is ordered as follows:

The application for review be and is hereby struck from the roll with costs.

DEME J:……………………………………

Nyahumas Law, Applicant’s Legal Practitioners.
Messrs Venturas and Samukange, second to fifth Respondents’ Legal Practitioners.

\(^3\) SC161/20.
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