Tanganyika Housing Co-operative Society v Vadzidzi Vajesu Housing Cooperative Harare

### Preamble
1
HH 657 - 25
HCH 598/25
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REPORTABLE

TANGANYIKA HOUSING CO-OPERATIVE SOCIETY

versus

VADZIDZI VAJESU HOUSING COOPERATIVE HARARE

HIGH COURT OF ZIMBABWE

MUNANGATI- MANONGWA J

HARARE, 21 October 2025

Opposed Matter

W Chishiri, for the applicant

Respondent’s representative in person

MUNANGATI- MANONGWA J:  The applicant herein applied for an order to compel the respondent to pay security for costs of the applicant in the sum of US$6000 per each of the following matters under Case numbers HCH 335/25, HCH 375/25 and HCH377/25.  It was the applicant’s contention that for each of these cases the applicant engaged counsel who prepared opposition papers and should the respondent abandon the cases the applicant is assured of recouping its legal costs. After hearing the matter, I issued the following order:

The Application be and is hereby granted in the following terms,

The Respondent be and is hereby ordered to pay USD 1500.00 as security costs per each case in case numbers HCH 335/25, HCH 375/25 and HCH 377/25.

The sums referred to in paragraph 1(a) herein above shall be paid to the Registrar of the High court within one month of granting of this order.

Should the Respondent fail to pay security costs in terms of paragraphs 1(a) and (b) herein above, cases number HCH 335/25, HCH 375/25 and HCH 377/25 shall be deemed to have abandoned and dismissed.

If the Respondent manages to pay security costs in respect of any one of the matters in terms of paragraphs 1(a) and (b) herein above, it will be entitled to prosecute such matter accordingly.

The Respondent shall pay costs of suit of this application on an ordinary scale.

The respondent has requested for reasons for the decision and here are they.

The background facts of this matter is as follows: Sometime in 2015 the applicant obtained a default judgment against the respondent in Case Number HC10103/14 wherein the respondent was ordered to vacate stand numbers 6543-6598 of 315 Retreat Township Waterfalls. In pursuant of the order, eviction was partially carried out and the respondent remains in occupation of some of the stands. In an attempt to stop further evictions, the respondent filed several cases. It is due to this conduct that the applicant has approached this court seeking the order on security for costs.

It is applicant’s case that the respondent is instituting frivolous and vexatious proceedings unnecessarily causing the applicant to incur costs. The applicant alleges that between the years 2024 and 2025 the respondent has instituted nine (9) cases and none of them have been prosecuted to finality but have been abandoned or dismissed by the registrar. The applicant indicated that in January 2024 the applicant instituted Case Number HCH64/24 which applicant (then respondent) opposed. The respondent herein did not file an answering affidavit and the matter was ultimately dismissed after failure to comply with a case management order of dube JP. Equally a matter instituted by the respondent herein under Case Number HCH650/24 which the applicant herein opposed was abandoned as no answering affidavit nor heads of argument were filed. The Registrar dismissed the matter after a case management order by zhou J and relevant notices were issued. The applicant submitted that the respondent went on a spree of filling urgent applications under case numbers HCH441/24 which was deemed “not urgent” and the respondent withdrew the application. This was followed by HCH649/24 which was ruled “not urgent” by musithu J and the matter lies idle despite the lapse of one year. It was submitted that another urgent application heard by mhuri J was ruled not to be urgent and removed from the roll and remains dormant with no further action taken by the respondent herein. The respondent instituted Case Number HCH852/24 which was not prosecuted to finality. Further takuva J heard another of the respondent’s urgent applications in HCH2037/24 which carries a judgment HH20/25 which again was removed from the roll of urgent matters and remains before the court and still has to be prosecuted.

The applicant averred that soon after the judgment by takuva J respondent herein has filed three (3) new cases HCH335/25, HCH375/25 and HCH377/25. It is for these three cases that the applicant now seeks that the respondent be made to pay security for costs. The applicant contends that the respondent has not been paying costs and its spree of filing and abandoning cases which the applicant would have opposed and incurred costs on, can only be stopped through ensuring that its costs are safeguarded. It is the applicant’s belief that the respondent does not have a genuine desire to seek the court’s assistance but wants to harass the applicant through the institution of multiple cases.  Thus, despite making a demand in terms of r75(1) of the High Court Rules (2021) the respondent has not been forthcoming hence the application. It is the applicant’s undertaking that should the respondent be successful in the prosecution of the relevant three cases the applicant will return the costs.

The respondent opposed the application and insists that it is entitled to its day in court hence the institution of the aforementioned cases.  It accuses the applicant of extortionist conduct for seeking a total sum of US$18000 as security for costs for the three cases and submitted that applicant cannot proceed on a presumption that the respondent may not conclude his cases. It was contended on behalf of the respondent that HCH64/24 could not proceed as a wrong procedure had been used as an application for rescission of judgment had been made instead of an application to set aside an order granted in error hence the respondent instituted HCH377/25 to correct the initial error. The respondent equally acknowledges the dismissal of HCH650/24 and states that an application for reinstatement of that matter is what is being sought in HCH335/25 and that a notice of set down is awaiting referral to a judge. The respondent contends that Cases HCH441/24 and HCH952/24 are applications which were dealt with and dismissed, and this was before the writ of execution in Case No HCH10103/14 was issued and served on the respondent. The respondent thus stated that this has prompted him to apply for stay of execution pending condonation and rescission of judgment under Case Number HCH375/25. He denies failing to prosecute the matter under HCH649/24 stating rather that the matter was withdrawn.

The court’s doors are open for all who seek to access justice by asserting their rights, protecting their rights and seeking redress. In so doing there are rules that regulate conduct of litigants from filing of their matters, setting of timelines and deadlines and generally procedures to be followed and the conducting of proceedings. These rules ensure that the wheels of justice turn smoothly enabling the administration of justice to be done in an organised manner whilst providing a platform for litigants to assert their rights. It is in the spirit of seeking to assert and protect its rights that the respondent has been approaching this court but in so doing a lot of things have gone wrong. Suffice that litigation is serious business which requires diligent handling of legal issues lest an order for costs can be crippling. It is undeniable that the respondent herein has approached court numerous times instituting nine matters most of which have either been dismissed for failure to comply with the rules or abandoned serve for the three matters which are currently pending and are subject of this application. Meanwhile the applicant herein who has been defending these matters has incurred costs which have not been paid. Hence its invocation of r75(3) to seek an order for security of costs. The said rule reads as follows:

(3)”If the party from whom security is demanded contests his or her liability to give security or if he or she fails or refuses to furnish security in the amount demanded or the amount fixed by the registrar within ten days of the demand or the registrar’s decision, the other party may apply to a judge or court on notice for an order that such security be given and that the proceedings be stayed until such order is complied with.”

It is pertinent to note that the relief that the applicant seeks is born out of genuine concerns by the applicant on the ability to recover costs if they prevail in the litigation more particularly in situations where the other party may not have adequate financial resources. By granting the order a court would be mitigating the risk of leaving the successful party uncompensated for their legal expenses whilst ensuring that the other party still has access to justice. Thus, it is a balancing act which involves the court exercising its discretion see Grandwell Holdings Pvt Ltd v Minister of Mines and Mining Development HH-193-16, where the court stated that:

“…Substantively, an order for security costs is one entirely in the discretion of the court. It is a rule of practice, not substantive law.”

Suffice that all the cases that the respondent has instituted are aimed at seeking or getting to reverse the default judgment granted in HCH10103/14 or stay its execution or facilitate such relief. Three urgent matters have been ruled “not urgent” by mhuri J, musithu J and takuva J and same have not been pursued and lay idle with no move to prosecute them. Equally the urgent application in HCH441/24 was withdrawn by the respondent then applicant although each party was to bear its own costs. There are matters as indicated in the aforegoing paragraphs which were deemed dismissed after failure to comply with directions for case management by dube JP and zhou J. Suffice that these matters were contested and the applicant had to engage counsel. This in essence means incurring legal costs. As rightly observed by the applicant, it is respondent’s right to seek redress from the courts however where a litigant abandons matters and keeps on approaching the court against the same adversary and abandoning proceedings and making procedural blunders without paying costs to a party being dragged to court, the court will intervene to protect such a party. Such intervention can come by way of considering how to mitigate and safeguard financial losses incurred by the other party should the affected party resort to the provisions of r75.

No doubt the applicant has been to court at the instance of the respondent several times and the respondent has not been fully prosecuting its cases which ended up being dismissed and some cases remain in limbo. The applicant’s quest to have its costs secured thus has merit as it is faced with three more cases which it is answering to. The quest for relief emanates from the demonstrated conduct of the respondent to litigate and fail to see to it that matters are prosecuted to finality leaving the applicant with legal bills to shoulder. At no time did the respondent indicate that it paid costs and with the three cases for which security is sought being prosecuted it is in the interests of justice that an order for security for costs be granted. However, it must be noted that in seeking for security for costs, the idea is not to cripple the other party by asking for exorbitant amounts. The party seeking such relief must not seek extortionist amounts but should consider that the costs are meant for eventualities in case the matter instituted by the concerned party (in this case respondent) gets dismissed then the applicant seeking security for costs is cushioned.

In reaching a fair and equitable decision the conduct of the party who is to pay costs comes under scrutiny as rightly put by mafusire J in Grantwell Holdings Limited v The Minister of Mines and Mining Development & Ors HH193/16. In casu the respondent has been reckless in its applications instituting successive urgent applications which were ruled not urgent, failing to follow up on matters and filing matters fraught with procedural irregularities. The conduct of the respondent can qualify to being acts of harassment meant to wear out the applicant given that the applicant is paying for its legal fees without recouping from the other party who leaves cases lying idle leading to dismissal. It is this conduct which gives the impression that the respondent is not bona fide in its applications which then justifies the granting of the order for it is easy for a litigant who is not feeling the pinch of financial loss to make endless applications to court.

The court has a discretion to grant the costs applied for and such discretion must be exercised judiciously. The court takes cognisance of the fact that respondent has a right to fair and impartial administration of justice hence access to the courts must not be unduly restricted by the making of outrageous demands. The respondent is a Co-operative Society and there is no demonstrably evidence that the sum of US$18000 can be raised by the respondent. In the same breath the respondent must be aware that litigation comes with the burden of costs and it cannot be allowed to institute endless proceedings without regard to the financial repercussions thereof on the part of its advisory. In that regard the application succeeds with the amounts claimed reduced to US$1500 to be paid as security for costs per each case.

Accordingly, an order is granted in the following terms:

The Respondent be and is hereby ordered to pay USD 1500.00 as security costs per each case in case numbers HCH 335/25, HCH 375/25 and HCH 377/25.

The sums referred to in paragraph 1(a) herein above shall be paid to the Registrar of the High court within one month of granting of this order.

Should the Respondent fail to pay security costs in terms of paragraphs 1(a) and (b) herein above, cases number HCH 335/25, HCH 375/25 and HCH 377/25 shall be deemed to have abandoned and dismissed.

If the Respondent manages to pay security costs in respect of any one of the matters in terms of paragraphs 1(a) and (b) herein above, it will be entitled to prosecute such matter accordingly.

The Respondent shall pay costs of suit of this application on an ordinary scale.

MUNANGATI- MANONGWA J………………………………

Saunyama Dondo Legal Practitioners, applicant’s legal practitioners