Medical Investments Limited t/a The Avenues Clinic v Olivia Daka N O and Rumbidzayi Pedzisayi

### Preamble
1
HH 279-2012
HC 7305/10
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MEDICAL INVESTMENTS LIMITED t/a

THE AVENUES CLINIC

versus

OLIVIA DAKA N O

and

RUMBIDZAYI PEDZISAYI

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 29 June 2012

Opposed Application

T Nyamasoka, for the applicant

H I Chitima, for the second respondent

First respondent in default

KUDYA J: This is an application for the review of the taxing officer’s decision of 24 September 2010 in which she declined to consider the applicant’s costs incurred by the deputy sheriff in effecting an order of this court.

On 10 February 2010, after contest, MAKARAU JP, as she then was, granted an order in favour of the applicant against the second respondent. The order was appealed on 17 February. It was struck off by the Supreme Court on 6 July. On that date the applicant’s legal practitioners instructed the Deputy Sheriff Norton to execute the order. The Deputy Sheriff attempted on five occasions, that is, once on 6 July, once on 7 July, once on 8 July and twice on 14 July 2010 to execute the court order without success. His fees in his returns of service amount to US$715-00.

On 7 July 2010 the second respondent applied for condonation of late filing of an appeal. That application was dismissed on 2 August 2010. On 3 August, she handed over the vehicle to the applicant’s legal practitioners. The second respondent paid part of the applicant’s costs and disputed US$715-00 incurred by the deputy sheriff. The applicant submitted the bill of costs to the taxing officer, the first respondent. The first respondent agreed with the second respondent that the attempts at execution by the deputy sheriff infringed Order 40 r 322 in that they were not carried out under a writ of execution; hence the present application.

The second respondent raised two preliminary issues against the application. The first was that it did not comply with r 314 of the rules of court. The rule states:

“(1)	A party aggrieved by the decision of a taxing officer may apply to court within four weeks after the taxation to review such taxation. The application shall be by court application to the taxing officer and to the opposite party, if such opposite party was present at the taxation or if the court decides that such opposite party should be represented.

(2) 	The court application shall specify the items forming the subject of the grievance.”

The applicant conceded that the face of the application did not strictly comply with r 314 (2). It averred that the items forming the subject of the grievance were however spelt out in the founding affidavit. It relied on the sentiments of MAVANGIRA J in Zimbank Ltd v Trust Finance Ltd & Anor 2006 (2) ZLR 404 (H) at 408F for the submission that the failure to set out the items on the face of the application was not fatal to the application. It is correct that the founding affidavit itemizes the returns of service that the second respondent refused to pay for and the first respondent declined to consider and award.

Again, notwithstanding the views of HLATSHWAYO J in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H) at 105C, it seems to me that in regards to the interpretation of r 314, the views of the Supreme Court in Cone Textiles (Pvt) Ltd v C Pettigrew (Pvt) Ltd & Anor 1984 (1) ZLR 274 (S) at 278G-279B are not only binding but correct. GOLDIN AJA stated:

“In my view, the correct position is, therefore, that the court has power to interfere with or alter a Taxing Master's ruling on two grounds. Firstly, on the application of common law rights on review which involve a finding that he was grossly unreasonable or erred on a point of principle or law. In such a situation the court would be at large and entitled to substitute its opinion for that of the Taxing Master. It should not be overlooked that even when such grounds for interference exist it need not follow that the Taxing Master's decision must necessarily be set aside or altered. He may have arrived at the correct decision for a wrong or even improper reason.

Secondly, regardless of the absence of any common law ground for interference, the court has a duty to interfere if satisfied that the Taxing Master was clearly wrong in regard to some item. In such a case the court will substitute its own opinion for that of the Taxing Master even if it is a matter involving degree.

It is emphasised, however, that the court must be satisfied that the Taxing Master was clearly wrong and not merely that in his place it would have come to a different decision.”

The common law ground for review on the face of the present application is sufficient to bring it before this court for review without the need to conform with the strict requirements of r 314 (2.)

The first preliminary point fails.

The second preliminary point was based on the failure by the applicant to attach the decision of the first respondent. It does not appear to me necessary to do so in this matter where the issue revolves around the interpretation of the law. In any event the second respondent concedes in paras 5 and 6 her written heads that:

“5	The first respondent then dismissed that part of the applicant’s legal practitioners’ bill of costs which purported to include the costs of the deputy sheriff in collecting the motor vehicle.

6.	The applicant then instituted an application for review of the decision by the first respondent in which she denied the deputy sheriff’s costs.”

In the founding affidavit, the applicant averred that the first respondent refused to consider the deputy sheriff’s fees on the ground that he acted outside the provisions of r 322. In her opposing affidavit the second respondent averred that the first respondent “was entitled to disallow the said deputy sheriff’s costs on the basis that he acted illegally, without a writ of execution as required by law.” She did not specifically deny the averment made by the applicant. The first respondent did not oppose the application.

The second preliminary point fails.

The order of MAKARAU JP reads:

“1	The respondent or any person possessing through her shall, upon service of this order, surrender to the applicant a motor vehicle, namely a VW Polo, registration number AAG 1727 failing which the Deputy Sheriff is hereby empowered to take possession of the same and hand it over to the applicant.

The respondent shall bear the costs of this application.”

The issue taken on taxation arises from r 322. It reads:

“The process for the execution of any judgment for the payment of money, for the delivery up of goods or premises, or for ejectment, shall be by writ of execution signed by the registrar and addressed to the sheriff or his deputy, in accordance with one or other of Forms Nos. 34 to 41.”

The second respondent submitted that the fees of the deputy sheriff arising from his attempts to dispossess the second respondent of the motor vehicle without a writ of execution signed by the registrar and addressed to the sheriff or his deputy were void. Mr Chitima, for the second respondent, relied on the phrase “any judgment for the payment of money, for delivery of goods” and the peremptory word “shall” found in r 322.

The High Court has absolute power over its own rules. This power is captured and crystallized in r 4 C of the rules of court. In Wilmot v Zimbabwe Owner Driver Organisation (Pvt) Ltd 1996 (2) ZLR 415 (SC) at 419 C-D GUBBAY CJ stated:

“Of course, it was open to the court a quo to have had recourse to r 4C (a). This permits a departure from any provision of the Rules where the court or judge is satisfied that the departure is required in the interests of justice. None of the provisions of the Rules are strictly peremptory. See Sumbereru v Chirunda 1992 (1) ZLR 240 (H) at 243B; Makaruse v Hide & Skin Collectors (Pvt) Ltd S-140-96.”

The LEARNED CHIEF JUSTICE expressed the same sentiments in Watson v Gilson Enterprises (Pvt) Ltd 1998 (1) ZLR 381 (SC) at 387G that:

“The provisions of the Rules are not strictly peremptory. But as they are there to regulate the practice and procedure of the High Court, in general, strong grounds have to be advanced to persuade the court or judge to act outside them. See Sumbereru v Chirunda 1992 (1) ZLR 240 (H) at 243B, Makaruse v Hide & Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S) at 65D-E; Wilmot v Zimbabwe Owner Driver Organisation (Pvt) Ltd 1996 (2) ZLR 415 (S) at 419C-D.”

Lastly, though she declined to make a definitive finding on the aspect, MAKARAU JP in Shoko & Ors v Minister of Local Government& Anor 2007 (1) ZLR 111 (H) at 114C stated that:

“The option appeared to me more attractive as r 4C does not seem to require that an application be 	made before the court can condone a departure from the rules.”

In the present matter, the wording of the order of 10 February 2010 did not require that a writ of execution be raised before the deputy sheriff could execute. The court had the authority to depart from r 322. The wording of the order indicates that it did so. It specifically empowered the deputy sheriff to dispossess the second respondent of the motor vehicle. Had the court wanted the applicant to execute through a writ, it would not have empowered him to seize the vehicle in the order. Rather, it would simply have granted the order to surrender on service of the order and left it to the applicant to seek a writ to enforce it once she failed to do so voluntarily.

The five visits were necessary to give effect to the order. It was clear from subsequent events that the second respondent deliberately removed herself from the reach of the deputy sheriff. Her erstwhile legal practitioners were complicit in this regard as apparent from the last paragraph of their letter of complaint of 8 July 2010 in which they wrote:

“We shall also seek the relief of a stay pending the determination of our client’s application for condonation of the late noting of an appeal, which application has been served on (sic) your offices.”

The disallowed fees of the deputy sheriff, in terms of r 457 (5) and clause 1 of the High Court (Rules and Allowances) Rules SI 35/2009 before they were repealed by SI 57/2011 could very well be necessary execution costs properly incurred in giving effect to the court order. The first respondent was legally bound by the court order to consider them in terms of r 307. The first respondent declined to exercise her discretion by acting upon a wrong principle. Her decision cannot stand. I agree with Mr Nyamasoka, for the applicant, that the matter should be remitted to the first respondent for her to consider the correctness of the amounts levied by the deputy sheriff captured in the bill of costs of 24 September 2010.

Costs must follow the result.

Accordingly, it is ordered that:

The decision of the first respondent of 24 September 2010 refusing to tax applicant’s bill of costs is set aside.

The matter is remitted to the first respondent for determination of items 5, 6 and 7 in the bill of costs of 24 September 2010.

The second respondent shall pay the applicant’s costs on the ordinary scale.

Atherstone & Cook, applicant’s legal practitioners

Kawonde & Company, second respondent’s legal practitioners