Temba Mliswa v Sheriff of the High Court of Zimbabwe & 2 Ors

### Preamble
1
HH 787-18
HC 10176/18
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TEMBA MLISWA

versus

SHERIFF OF THE HIGH COURT OF ZIMBABWE

and

MAPARAHWE PROPERTIES (PVT) LTD

and

NORTON TOWN COUNCIL

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 7 & 23 November 2018

Urgent Chamber Application

L. Madhuku, for the applicant

T. Machaya, for the 2nd respondent

J. Kadoko, for the 3rd respondent

MUREMBA J: On 1 November 2018 the applicant’s three motor vehicles, a Mercedes Benz AEK 1985, a Mazda T3500 ABG 8923 and a Vintage Dodge ACB 8557 were attached by the first respondent, the Sheriff and were due to be removed on 7 November 2018. This prompted the applicant to file the present urgent chamber application for stay of execution on the ground that the attachment which was done by the Sheriff is null and void because he has already paid all his dues to the second respondent, Maparahwe Properties (Pvt) Ltd and the third respondent, Norton Town Council.

The background of this matter is as follows. Sometime in 2017 the second respondent sought to evict 629 residents from its property in Norton. The applicant who happens to be the Member of Parliament for Norton Constituency was not among them. The 629 residents filed an urgent chamber application under HC 4619/17 against the second respondent challenging the evictions. The third respondent was inexplicably joined as a respondent in that application. On the basis of being the Member of Parliament for the Norton Constituency, the applicant joined the 629 residents as a co-applicant in their application. The urgent chamber application was heard by this court on 14 June 2017. At the same time the applicants filed a notice of withdrawal which was to the effect that,

“Take notice that the applicants hereby withdraw their application and tender costs at a 	client legal practitioner scale.”

This court gave the following order;

“It is ordered that applicants withdraw the application with a tender of costs on an attorney and client scale.”

Both the second and the third respondents had their bills of costs taxed. The total taxed costs are about US$136 000. Out of this total, the costs for the second respondent are US$103 560.00. The balance is for the third respondent. Pursuant to the taxation, both respondents had writs of execution against property issued against the applicant. At one stage the first respondent had the applicant’s assets amounting to US$2 991.91 attached. The applicant decided to save his assets by paying cash. He paid US$3 227.00 and his property was released. On 1 November 2018 the Sheriff came again and attached the applicant’s three motor vehicles, a Mercedes Benz AEK 1985, a Mazda T3500 ABG 8923 and a Vintage Dodge ACB 8557. It is the applicant’s contention that since the court order did not order payment of costs jointly and severally, the one paying the others to be absolved, each individual applicant in HC 4619/17 should pay an equal portion of US$216.00 towards the costs. He contends that as it is, with the payment of US$ 3 227.00 that he made, he has already paid more than the $216 that he should pay as his share of costs. It is for this reason that the applicant wants execution stayed. He avers that there is no legal basis for the attachment of his property.

The applicant has joined the third respondent in the present application for the reason that although no attachment has been made by the Sheriff at the instance of the third respondent so far, a writ of execution has already been issued against the applicant by the third respondent.

At the hearing of the matter on 7 November 2018, l dismissed the point in limine raised by the second respondent that the matter was not urgent. With the applicant’s property having been attached over and above a payment of US$3 227.00 that he had already made towards costs, the matter was obviously urgent. A determination needed to be made on whether or not the applicant is liable to pay the full costs before the attached motor vehicles were removed by the Sheriff.

On the merits, the three counsels agreed to file heads of argument on the interpretation of the court order which was granted by this court vis a vis payment of costs in HC 4619/17. Does the order mean that the full costs can be recovered from any one of the 630 applicants or does it mean that each applicant is liable to pay a proportionate share?	Although the second and third respondents’ counsels delayed in filing their heads of argument, I am indebted to all counsels for their heads of arguments.

It is common cause that this court did not in its order in HC 4619/17 state that the applicants in that matter were to pay costs, ‘jointly and severally, the one paying the others to be absolved.’ The High Court Rules, 1971 do not have a provision on how liability for costs should be dealt with where two or more litigants are involved. However, the Magistrates Court (Civil) Rules, 1980 in Order 32 Rule 1 (4) provides that,

“Where a judgment or order for costs is made against two or more persons, it shall, unless the contrary is stated, have effect against such persons severally as well as jointly.”

The second and third respondents’ counsels submitted that the Magistrates’ Court Order 32 Rule 1 (4) therefore provides guidance on the approach that courts in this jurisdiction follow or ought to follow. They submitted that whilst the Magistrates Court is inferior to the High Court, there is really no reason why the situation obtaining in the Magistrates Court should be departed from by this court. The respondents’ counsels argued that the applicant in the present matter together with his co-applicants in the HC 4619/17 acted together when it was to their benefit and as such they should be considered as one in paying costs. They contended that it will be unfair to require the respondents to pursue their costs from the 630 applicants individually. They argued that the applicant in the present matter can obtain contributions from his co-litigants for any amounts recovered from him beyond his proportionate share. They submitted that the cost of issuing a single writ exceeds $216 which the applicant says each individual applicant is liable to pay in HC 4619/17. They contended that the costs of execution to recover taxed costs will far exceed the judgment debt and this is contrary to the principle behind the awarding of costs jointly and severally. They argued that it is not practical to issue 630 writs in a case where the applicant took a representative role as the Member of Parliament for his area coupled with a duty of care he exercised over his co-litigants.

The respondents’ counsels went on to cite case authorities from outside this jurisdiction which state that unsuccessful litigants should be held jointly and severally liable for costs. Reference was made to the Canadian cases of King v On-Stream Natural Gas Management Incl (1993), 21 C.P.C (3d) 16 at para 17 and Filipovic v Upshall (1998) O.J. No. 4498 ct.j. (Gen. Div) at para 11. In both these cases the issue before the court was whether or not the unsuccessful plaintiffs should be ordered to pay costs jointly and severally. In the end the plaintiffs were ordered to pay costs jointly and severally because they had acted jointly in bringing actions against the defendants. It was held that it would be unfair for the defendants having won the actions to be obliged to undertake proceedings against several separate plaintiffs, each for a minor portion of the costs. It was held that the plaintiffs as the losing parties should bear the burden of enforcing contribution for costs by each individual plaintiff.

The respondents’ counsels submitted that whilst this court is not bound by these case authorities, it should be persuaded by them. What the respondents’ counsels failed to appreciate is that whilst the courts in these cases were supposed to make a determination on whether or not to give an order for costs jointly and severally against the losing plaintiffs in the cases they were dealing, I am not in the present matter dealing with such a scenario. I am not being asked to give an order for costs. The order for costs is already there. It was given in HC 4619/17 by a different judge on 14 June 2017.  What I am being asked to do now is to interpret that order. So these arguments by the respondents’ counsels that are being made in the present matter are misplaced. They are the arguments that should have been made before the judge who granted the order for costs in HC 4619 /17 for the costs to be awarded jointly and severally. The present matter is past that stage now and clearly, the cases cited are distinguishable from the present case. The cases are therefore irrelevant for the determination of the present matter.

The simple question now is what does the order in HC 4619/17 mean? Does it mean that the costs should be paid jointly and severally, the one paying the others to be absolved? I am in agreement with Mr Madhuku that unless the court specifically orders costs to be paid jointly and severally, a co-litigant only has joint liability. Whilst the court has discretion, in appropriate circumstances, to order co-litigants to pay costs jointly and severally, the one paying the others to be absolved, where no such specific order is made, a general order of costs means that each co-litigant is liable for his or her proportionate share. This is the common law position. Herbstein & Van Winsen in The Civil Practice of the High Courts of South Africa (5th ed) p 991 summarise the law as follows.

“Apart from the above mentioned statutory provisions, which do not limit the discretion of the court in any way, even in circumstances in which those provisions apply, the general rule in awarding costs is that liability of co-litigants is joint, each being liable for his aliquot share. Accordingly, it has been held that normally an order that costs be paid jointly and severally will be granted only if it is specifically claimed and if the court is satisfied that there are facts justifying a departure from the general rule.”(My emphasis)

This position is based on the following authorities. Colonial Government v Bonner (1904) 21 SC 477; Gray v Goodwood Municipality & Blackie 1943 CPD 78, Hassan v Voss & Heunis 1946 CPD 664 at 666; Butterworth Bantu School v Sihlali 1957 (4) SA 451 (A).

Therefore, a party that wants costs jointly and severally must (i) make a specific claim for the costs and (ii) obtain a specific order to that effect. The court has discretion to alter the general rule and order costs jointly and severally, if asked to do so. In light of this common law position, I do not agree with the respondents’ counsels’ submission that this court should be guided by Order 32 Rule 1 (4) of the Magistrate’s Court Rules because whilst the Magistrates Court is a creature of statute, this court is not. As a creature of statute the Magistrates Court can only do what is conferred on it by statute. Order 32 Rule 1 (4) of the Magistrate’s Court Rules is actually a departure from the common law position and this court cannot be guided by that.

The order for costs in HC 4619/17 is a general order which does not order the applicants in that matter to pay these costs jointly and severally. The applicant’s liability therefore can only be jointly but not severally. In the result, I will grant the interim relief the applicant is seeking.

It be and is hereby order that:

Pending determination of this matter on the return date:

The first respondent is ordered to stay the removal of the applicant’s movable assets attached on or about 1st November 2018.

The first respondent is ordered to remove any other assets of the applicant attached pursuant to the order of costs in HC 4619/17 whether the attachment was before, on or after 1st November, 2018

Lovemore Madhuku Lawyers, applicants’ legal practitioners

C Mpame & Associates, 2nd respondent’s legal practitioners

Mwonzora & associates, 3rd respondent’s legal practitioners