Irene Moyo v Charles Nyatanga N.O and Cicel Madondo and Adrian Mazorodze and Amida Solomon

### Preamble
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HH64-05
HC 11645/04
IRENE MOYO
vs
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IRENE MOYO
vs
CHARLES NYATANGA N.O
and
CICEL MADONDO
and
ADRIAN MAZORODZE
and
AMIDA SOLOMON

HIGH COURT OF ZIMBABWE
BHUNU J
Harare, 7 June 2005 and 20 July 2005

Opposed Application

BHUNU J: The applicant instituted proceedings against the respondents claiming the following order:

"1. The appointment of Cecil Madondo as Executor Dative in the Estate of the late Stephen Moyo on the 6th October 2004 is set aside.
2. First respondent is directed to appoint applicant as Executor Dative.
3. The costs of this application, if contested shall be paid by the respondents."

On the 3rd of June 2005 the applicant filed a notice of withdrawal on the basis that each party pays its own costs.

There being no proof that the respondents were agreeable to the proposed order for costs I directed my judges clerk to ascertain from the respondents if they were agreeable to the order sought.

On the 28th June 2005 the applicant resubmitted the same notice of withdrawal duly signed by the 1st respondent and counsel for the 2nd and 3rd respondents. Counsel for the 4th respondent did not sign the proposed withdrawal notice.

That being the case I took it that the 4th respondent was not agreeable to the application being withdrawn on the basis that each party pays its own costs. The withdrawal meant that the 4th respondent had been wholly successful. The application had therefore put him to unnecessary expenseparticularly taking into account that no specific order was being sought against the 4th respondent. The general rule in our law is that, "costs follow the event."The rule was restated by YOUNG J in the well known case of Greenspan Brothers (Pvt) Limited v Commissioner of Taxes 1960(1) SA 454 (SR) in that case the learned Judge had this to say:

"In ordinary litigation the rule of course, is that in the absence of Special Circumstances costs follow the event and judicial discretion is geared towards that principle." In the case of Mafukidze v Mafukidze HH 279-84 this court attempted to give a break down of circumstances under which a successful party may be deprived of his costs.

These include:

(a) the causing of premature or unnecessary litigation
(b) the causing of unnecessary expense
(c) continuing proceedings without good cause.
(d) Instituting vexatious and frivolous proceedings

The list is by no means closed. What is however clear is that courts do not lightly depart from the general rule in the absence of Special Circumstances justifying the departure. That being the case the onus is squarely on the party who seeks departure from the general rule to justify such departure.

In resubmitting the notice of withdrawal the applicant made no submission as to why the 4th respondent should not be awarded his costs despite having been successful. With that in mind I concluded that no Special Circumstances justifying a departure from the general rule existed otherwise the applicant would have said so.

The 4th respondent not having consented to the withdrawal on the basis that he pays his own costs and in the absence of any justification for departure from the general rule that costs follow the event, he was entitled to his costs as a matter of right. The court could not possibly deny him his costs without any justification.

The 1st to 3rd respondents having waived their rights and agreed to the withdrawal on the basis that they pay their own costs they were of course not entitled to an award of costs.

When it however came to drafting the order the court erroneously failed to specify that the award of costs only related to the 4th respondent who had not elected to forego his costs.

I believe that error can be corrected in terms of rule 449 of the high Court Rules which provides that:

"449(1)(b) the court or a judge may in addition to any other power it or he may have *mero motu* or upon the application of any party affected, correct, rescind or vary any judgment or order in which there is an ambiguity or a *patent error* or *omission* but only to the extend of such omission or error". (My emphasis)

I therefore propose to amend my order to reflect the award of costs so that it specifically refers to the 4th respondent only. The proposed amendment shall read as follows:

1. That the applicant be and is hereby allowed to withdraw her application.
2. That the 1st to 3rd respondents are to bear their own costs.
3. That the applicant is to bear the 4th respondent's costs.

Rule 449(2) requires that I must give notice to all interested parties who may be affected by this court's order.

The delivery of this judgment shall therefore constitute notice to the interested parties. In the event that there is no objection to the proposed amendment within 10 days of delivery of this judgment the above amendment order shall be the order of this court.


Gill Godlonton & Gerrans, the applicant's legal practitioners
The Registrar, High Court of Zimbabwe, for the first respondent
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