Zimra V C. Nyaguse & 12 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/279/14
HARARE ON 13TH MAY, 2014
CASE NO. LC/H/213/14
And 23 MAY, 2014
JUDGMENT NO. LC/H/279/14
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IN THE LABOUR COURT OF ZIMBABWE	                             JUDGMENT NO. LC/H/279/14

HARARE ON 13TH MAY, 2014			                            CASE NO. LC/H/213/14

And 23rd MAY, 2014

In the matter between

Z I M R A					–	APPLICANT

And

C. NYAGUSE & 12 OTHERS		-	RESPONDENT

Before The Honourable F.C. Maxwell J.

For Applicant   :	Ms R. Mukozho (Legal Practitioner)

For Respondent:	Mr  Matsikidze (Legal Practitioner)

MAXWELL J,

On 20th March 2014 Applicant filed an application for interim relief in terms of Section 92 E (3) of the Labour Act [Cap 28:01]. The application was responded to on 10th April 2014. Both parties filed Heads of Argument and the matter was set down for hearing on 12th May 20-14.

On 5th May 2014 Applicant filed a notice of withdrawal without tendering Respondent’s wasted costs. On the following day Respondent wrote to the Applicant pointing out that the purported withdrawal is defective and gave 48 hours within which Applicant should tender costs failing which the Respondent would pursue the hearing on the question of costs. On the 7th May 2014 Applicant responded to the Respondents’ letter and requested for the rule and authorities they were relying on. On 9th May 2014 Respondents wrote to the Registrar of this Court indicating that they were not agreeable to a position where each party bears its own costs pursuant to the withdrawal of the matter by Applicant.  They requested that the matter remains on the roll for a determination of the issue of costs by the Court.

On the date of the hearing Applicants sought a postponement of the matter which the Court declined. Parties made submissions on the issue of costs. Respondents prayed for costs on an attorney and client scale. The basis of their request among other things was that Applicant’s Counsel had shown arrogance in the response to the advice that the notice of withdrawal was defective. Applicant’s Counsel submitted that costs on a higher scale are not granted willy-nilly. Applicant was prepared to file an amended notice of withdrawal which tendered wasted costs. This should have been done before the issue was argued.

Whilst Respondent is entitled to wasted costs, I am not convinced that the costs should be at an attorney and client scale. I do not believe that misbehavior on the part of a litigant sanctions the imposition of costs on a higher scale. As was stated by REYNOLDS J (as he then was) in Mudzimu v Municipality of Chinhoyi and Another 1986 (1) ZLR 12 at page 17;

“The basis of such an award is, in my view, that the litigant’s conduct has amounted to an abuse of the court process, and his actions have thereby brought about additional and unwarranted expense to the other party. If he is guilty of offensive behavior towards any other person, this is irrelevant, as far as costs are concerned ………………” (underlining for emphasis)

The standard practice in this jurisdiction as enunciated by MAKARAU J.A. (as she then was) in the case of Church of the Province of Central Africa vs Jakazi and Others HH 73-2010 is that a party withdrawing a matter tenders wasted costs. It therefore follows that Applicant should have tendered the Respondent’s costs caused by the withdrawal. I see no reason to depart from this position.

Accordingly, Applicant having filed a notice of withdrawal on 5th May 2014, I order as follows:-

The matter stands withdrawn.

The Applicant is to pay Respondent’s wasted costs.

Sinyoro and Partners – Applicant’s Legal Practitioners

Matsikidze and Mucheche – Respondent’s Legal Practitioners