MODEL SKILLS INVESTMENTS (PVT) LTD Versus VICTOR And GARACHO And HAILTOP INVESTMENTS (PVT) LTD (HCHC305/25) [2026] ZWHHC 33 (28 January 2026)

8 **HH 70-26** **HCHC 305/25** MODEL SKILLS INVESTMENTS (PVT) LTD Versus CINDY VICTOR And VINCENT GARACHO And HAILTOP INVESTMENTS (PVT) LTD HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHILIMBE J HARARE 21 and 28 January 2026 **Interlocutory application** _H. Madzongwe_ for applicant _F. Mabhungu_ for the respondents CHILIMBE J BACKGROUND [1] An error at inception often results in irredeemable defects, so goes an old adage. The applicant, on its own admission, concluded a sale agreement with the respondents on 11 April 2020. When the transaction soured, applicant proceeded to issue summons on 28 February 2023 in HCHC 724/23. [2] These two exercises-the transaction and litigation were launched before the verification of certain facts critical to both initiatives. Applicant avers that it subsequently unearthed the said critical information which materially impacted its causa and relief. Fortunately for applicant, the law, contrary to the said old adage- creates, under r 49 of the High Court (Commercial Division) Rules SI 123 of 20201, a facility to remedy missteps and oversight in pleadings. [3] Thus, the applicant moved the present application to amend its summons, declaration and bundle of evidence in terms of the said r 49 (“the application for amendment”). The application was opposed by the three respondents (“Ms Victor”, “Mr Garacho” and “Hailtop” respectively). Applicant subsequently moved to withdraw the matter after set down, tendering costs on an ordinary scale. [4] The respondents accepted the withdrawal, but demanded admonitory costs. With applicant persisting with its offer of party-to-party costs, I invited written submissions from both counsel. I will deal with the submissions shortly after outlining the background to the dispute. THE DISPUTE BETWEEN THE PARTIES [5] The founding affidavit filed in the application for amendment was deposed to by Mr Bhudhama Chikamhi, a director of applicant. His story went thus; -applicant purchased directly from Hailtop, and effectively from all three-a Mercedes Benz S500 vehicle (registration number 7499; chassis number WDD2221822A172487) on 11 April 2020 for US$80,000. [6] Mr Chikamhi claimed that the sellers “advised” that the vehicle, though registered in Hailtop`s name, was jointly owned by Ms Victor and Mr Garacho. Contrary to contractual obligation, applicant alleged that the respondents failed to deliver documents confirming “title and ownership”. [7] Applicant then issued summons-on 28 February 2023- against the present respondents in case number HCHC 724/23 seeking an order for (i) cancellation of the sale agreement and (ii) refund of the purchase price. On dates or periods not stipulated in the application, Mr Chikamhi claims that applicant unearthed information pertaining to the importation and registration of the vehicle. It had been, he averred, imported into the country in 2017 by a third party in whose name the vehicle was thereafter registered. [8] Additionally, the vehicle was, according to Mr Chikamhi, later registered in the name of yet another third party. It was also, he discovered, subject to certain statutory encumbrances. As such, he concluded-albeit in retrospect- that the vehicle could not have been legally resold as at 11 April 2020.This position rendered his sale agreement with Hailtop effectively invalid. To aggravate the position, the vehicle was seized by the Zimbabwe Revenue Authority (ZIMRA) on 25 May 2025. THE APPLICATION FOR AMENDMENT [9] Given that the contract was, according to Mr Chikamhi, void _ab initio_ , the original claim and relief required to be revisited. The respondents contested both the claim in the main matter HCHC724/23, as well as present application for amendment. In addition to denials of breach of contract, the respondents` arguments revolved around the previous ownership, registration and customs history of the vehicle. The respondents took the view that both the main claim under HCHC 724/23 and the present application for amendment were ill thought, and ill-meant, hence their claim for punitive costs. [10] Before I turn to the arguments on the question of costs, I make the following observations. Firstly, I reiterate that the withdrawal of the application for amendment itself was not opposed. It was not the respondents` position that the matter be dealt with on the merits. They merely prayed that the applicant settles the costs of suit on the higher scale. [11] This aspect is central to the disposal of the dispute before the court. The court`s mandate in that regard devolves to the age-old considerations applicable in the award of costs. The argument herein is not so much whether costs should be paid by a party withdrawing its claim or matter against another. It was accepted that costs were payable, but it is the scale thereof that was placed in issue. [12] That aside, I must still recognise the underlying principles governing the withdrawal of matters as set out in the leading decision of _Everjoy Meda_ v _Maxwell Matsvimbo Sibanda & 3 Others 2016 (ZLR) 474 (CC_). MALABA DCJ (as he then was) held, at page 4 that “The question of injustice to the other parties is germane to the exercise of the court’s discretion”. GENERAL PRINCIPLES ON COSTS [13] Secondly therefore, I will focus on (i) the court`s discretion on matters of costs in general, and (ii) the exercise of such discretion in awarding or refusing punitive costs in particular. On (i), counsel from both sides drew my attention to A.C. Cilliers -_Law of Costs_ , and Herbstein and Van Winsen`s _The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa_ 2 among other authorities. [14] Van Winsen and Herbstein set out the general position on costs as follows- citing _Fripp v Gibbon & Co_ 1913 AD 354 at 363; - “The award of costs is a matter wholly within the discretion of the court, but this is a judicial discretion and must be exercised on the grounds upon which a reasonable person could have come to the conclusion arrived at. In leaving the magistrate (or judge) a discretion, “…. the law contemplates that he should take into consideration the circumstances of each case, carefully weighing the various issues in the case, the conduct of the parties and any other circumstances which may have a bearing upon the question of costs and then make such order as to costs as would be fair and just between the parties. And if he does this, and brings his unbiased judgment to bear upon a matter and does not act capriciously or upon any wrong principle, I know of no right on the part of a court of appeal to interfere with the honest exercise of his discretion.” [15] As regards point (ii) on punitive costs, this court held as follows per CHEDA J (as he then was) in _Mahembe v Matambo_ 2003 (1) ZLR 226, at page 231 B-E; - “Our courts will not resort to this drastic award lightly, due to the fact that a person has a right to obtain a judicial decision against a genuine complaint. It is, therefore, essential that the courts only award such costs in situations where it is clear that the losing litigant was not genuine in the pursuance of a stand in the litigation process. Rubin L _Law of Costs in South Africa_ Juta & Co (1949) 190, classified the grounds upon which would the court be justified in awarding the costs as between attorney and client: 1. Dishonest conduct either in the transaction giving rise to the proceedings or in the proceedings 2. Malicious conduct 3. Vexatious proceedings 4. Reckless proceedings 5. Frivolous proceedings” [16] The above list shows that punitive costs serve to chastise and discourage the disdainful, mischievous and malicious litigant. The very type seeking to deliberately impair, in one form or other, the very administration of justice itself. One may also explain courts` displeasure with the bad litigant by viewing litigation itself as a paradox. On one hand, litigation reflects a societal failure to address disputes between its members. But in the same vein, litigation demonstrates society`s sacrosanct option to resolve disputes in a civilised fashions through application of the law. As such, litigation becomes an invaluable tool to attain societal harmony. [17] But whilst they may serve to defend the justice delivery system from the despicable, punitive costs may become an unintentional impediment barring deserving litigants from accessing this worthy option, as Van Winsen states at page 971; - “An award of attorney-and-client costs will not be granted lightly, as the court looks upon such orders with disfavour and is loath to penalise a person who has exercised a right to obtain a judicial decision on any complaint such party may have.” [18] See also a reiteration of this same principle in paragraphs [26] to [30] hereunder. Having said so, I must dispense, at this stage the question of onus. In their written submissions, the respondents argued that the applicant carried the burden to justify why punitive costs ought not be imposed. Reference was made to _Protea Assurance Co, Ltd v Gamlase and Others 1971 (1) SA 460 (E)_ in support. My reading of that authority is that is basically fortifies the common position supporting a court`s discretionary latitude in addressing the issue of costs rather than the specific issue of onus. [19] The court enjoys, in that regard, the flexibility to determine-in appropriate circumstances-which party ought to carry the burden of justifying a certain order of costs. Herein, I do not intend to be distracted by the question of who should bear the onus. An examination of the respective arguments should settle the point. Against the above legal principles, I advert to the arguments submitted herein. THE RESPONDENTS` ARGUMENT [20] Ms _Mabhungu_ for the respondents contended that the application for leave to amend was “unmeritorious, reckless and malicious”3. Citing Cilliers on Costs, she escalated her attack on the application through terms such as “vexatious and frivolous”, and “dishonesty of fraud of litigant”. Counsel justified these criticisms under the following heads; - [21] Ms _Mabhungu_ submitted that - “Applicant deliberately disregarded the Honourable Court`s Directive”. She averred that on a date not disclosed, MAFUSIRE J (as he then was) directed that case HCHC 724/23 “be joined” with case number HCHC 491/22. As stated above, case number HCHC 724/23 is the main matter in the present dispute. In case number HCHC 491/22, Cindy issued summons against applicant for moneys due and owing on the sale of a Range Rover vehicle. [22] I may dispose of the above argument instantly. The records expose counsel`s submission, as, with respect, inaccurate, distractive and unhelpful. There is no suggestion that the court in HCHC 491/22 ordered a joinder of parties nor consolidation of matters. That case related to a different claim and causa whose impact on the present matter is not immediately apparent. Even if such a directive was in fact issued, it is not clear how it would have obviated the need, as expressed by applicant, for an application for amendment of pleadings. [23] Having so observed, I will now paraphrase the further alleged improprieties on the part of applicant according to Ms _Mabhungu_ ; - 1. The belated withdrawal of the matter despite knowledge that the main matter had been deemed as abandoned by the Registrar on 29 December 2025,4 2. The respondents were, by applicant`s conduct, precluded from recovering costs under HCHC 724/23, 3. Applicant persisted with the application to amend despite cogent advice in the respondents` opposition and heads of argument warning of the impropriety of such course of action, 4. The last-minute withdrawal demonstrated a malicious approach which caused financial prejudice to the respondents including the expense of preparing for a hearing, 5. The applicant had misled the court in its founding affidavit herein by suggesting that it at one stage, caused a removal of the matter from the roll in order to pursue a settlement when in fact it had no such intent, 6. Failure by applicant to raise, in the pre-trial conference minute, of the issues later canvased in the application to amend, which evidenced applicant`s mala fides. [24] In response, Ms _Madzongwe_ for the applicant restated the basis of the application for amendment of the summons, declaration and bundle of evidence. She stressed the principle that punitive costs should be sparingly imposed by the court and only in extreme cases. Herein, the applicant had not misconducted itself as alleged. Bordering on offering testimony from the bar, counsel tendered the reason why the withdrawal could not be earlier made-the parties were negotiating-she said. THE LAW ON PURPOSE OF PLEADINGS [25] The withdrawal of the application to amend and its acceptance obviate a definitive ruling of the merits of that application. But in order to resolve the question of costs, I must nonetheless, briefly opine on the _bona fides_ of the application. And the starting point in that (brief) inquiry is the law on amendment of pleadings. Rule 49 of the Commercial Court Rules governing the withdrawal of matters prescribes that; - _49 Amendment of pleadings_ (1) The court or judge may, **at any stage of the proceedings,** allow either party to the proceedings to amend or alter his or her or its pleadings, against such order as to costs or otherwise as may be just and equitable, and in such manner as it or he or she may direct. (2) Subject to sub rule (1), any party to any proceeding may amend his or her or its pleadings at any time before service to the other party without an order of the court or judge subject to payment of the prescribed fee. (3) **The amendment under this rule shall be for the purposes of—** (a) correcting any patent defect or error in any pleading; (_b_) **determining the real question(s) in issue; or** (c) **to achieve justice between the parties.** (4) An amendment shall be made by filing a copy of the amended document, which shall indicate the amendment proposed and serving a copy of it on all other interested parties. (5) Where— (a) the amendment is allowed during a trial, hearing of any action or application proceedings; or (_b_) all parties are present when the amendment is made, the court or judge may amend the document in the court record accordingly and further service on the parties shall not be necessary. [Marked in bold for emphasis] [26] The marked wording in r 49 clearly demonstrates the purpose behind amendment of pleadings. The option represents a critical facility to assist the courts distil disputes to their very core. Ascertainment of the real controversy between parties is pre-requisite to the resolution of a dispute which, as earlier discussed in paragraph [16] above, is a crucial societal functionality. [27] This point was expressed in the following terms by MATHONSI JA in _Veronica Nyoni v Bernadette Eva Ndoro_ NO, SC 79-22 at pages 8-9; - “The first port of call is an examination of the principles governing pleadings in civil matters. Pleadings in civil litigation are the cornerstone in the resolution of disputes between litigants. They have the dual purpose of giving the opposite party fair notice of the case he or she has to meet and also play the role of clarifying the issues between the parties requiring determination by the court. See _Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd_ 2018 (1) ZLR49 (S) at 45G and 454G.” [28] The Learned judge of appeal proceeded to examine a number of authorities on the need for a party to plead its causa with clarity including _Mashonaland Tobacco Company (Pvt) Ltd v Mahem Farins (Pvt) Ltd & Anor_ SC 152/20. He concluded with the following remarks on the predecessor to r 49, at pages 9-10; - “Having said that, it must also be mentioned that the legal principles applicable to pleadings are not inflexible. A litigant is generally permitted to depart from or amend its pleadings with the rider that, before that occurs, the leave of the court must be sought and granted. Rule 132 of the repealed High Court Rules, 1971, which were applicable at the time the trial in this matter was held, permit an amendment of the pleadings at any stage of the proceedings; “… for the purpose of determining the real question in controversy between the parties.” See _Raftsman Investments (Pvt) Ltd v Tebb & Anor_ SC 138/20; _Timbe v Ngonidzashe Family Trust_ SC 53/09.” [29] As such, whilst an application for amendment of pleadings will not be granted for the mere asking, courts generally regard such applications favourably. See _Angelique Enterprises (Pvt) Ltd_ v _Albco (Pvt) Ltd_ 1990 (1) ZLR 6 (H),_Chikadaya_ v _Chikadaya & Anor_ 2001 (1) ZLR 421 (S), and _Butau_ v _Butau_ 2011 (2) ZLR 74 (H). In the above decisions, the limitations to the court`s indulgence in granting amendment applications were also set out. [30] Thus, this court in _Angelique v Albco_ (supra), cited with approval at page 8, the following remarks by DUMBUTSHENA CJ in _Lourenco v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd_ 1984(2) ZLR 151 (SC) at 159E-F, as follows; - “The main aim and object in allowing an amendment to pleadings is to do justice to the parties by deciding the real issues between them. The mistake or neglect of one of the parties in the process of placing the issues before the court and on record will not stand in the way of this unless the prejudice caused to the other party cannot be compensated for in an award of costs. The position is that even where a litigant has delayed in bringing forward his amendment, as in this case, this delay in itself, in the absence of prejudice to his opponent which is not remediable by payment of costs, does not justify refusing the amendment.” ANALYSIS OF THE ARGUMENTS [31] In summation, the award of punitive costs is an extraordinary measure. The courts will not lightly award such. In the same vein, a party moving to amend its pleadings will, unless such motion is manifestly improper, stand favourably before the court. Given these two pillars which are clearly supportive of the applicant`s cause, can the court depart from norm and consider the application so badly tainted as to grant the prayer for costs on a higher scale? [ 32] I think not and below are my reasons. Firstly, the applicant alleged discovery of facts not disclosed to it by the respondents at the time of concluding the contract. The multiple registrations of the vehicle were in fact largely admitted by respondents. Of course, they defended such under the general disclaimer that a vehicle registration book was not proof of ownership. It is not in dispute that the applicant was not furnished, as at 11 April 2020, with the registration book of the vehicle. [33] I may, on this point, refer to two decisions in which I commented on the exasperations and opportunities associated with conclusive proof of title to movable chattels such as motor vehicles. See _Ecobank Zimbabwe Limited v Solgas (Pvt) Ltd & 3 Ors_ HH 62-25 at [10] on the Movable Property Security Interest Act [ Chapter 14:35], and _The Sheriff for Zimbabwe & Anor v Wilton and Maks (Pvt) Ltd & Anor_ HH 186-23 where I noted as follows; - “[ 42] One can only speculate (as a second point continuing from [38] above), because this aspect (of vehicle registration books being prima facie but not conclusive proof of legal ownership) was not argued in the matters before me. What emerged were a few equally speculative submissions from counsel after probing from the bench. I raise this issue because it is pertinent to the matter herein whose main purpose is to ascertain ownership of property. [ 43] As noted above,[23] and [24], citizens should be able to prove title or interest variously. Official documents form part of the compendium of such records. Official documents or certificates should be able to speak unequivocally on matters for which they were issued. The vehicle registration certificate does not quite do so. The question being; - what then will constitute unquestionable title to legal ownership of a motor vehicle? [ 44] Unless there exists a valid and persuasive reason (which escaped the attention of argument in this application) why officialdom seemingly separates registration from ownership, it may be timely for authority to rethink the issue of conclusive proof of ownership of motor vehicles. Regulatory data bases are invaluable sources of official, certain, dependable and verifiable information. The nation should be able to rely on same- for various purposes, apart from the resolution of disputes in courts. Motor vehicles constitute, from various perspectives, a critical class of national asset. [ 45] Relevant to this discourse on vehicle registration books, are the new dimensions introduced by the Movable Property Security Interests Act _[ Chapter 14:35]_ enacted in 2017.This Act attempts to blow a gust of fresh breath into the tired lungs of the Deeds Registry Act [ Chapter 20:05] enacted _circa_ 1958\. The Movable Property Security Interests Act `s self-explanatory short title reads ‘- “AN ACT to provide for the registration of movable property security interests; to amend various Acts; and to provide for matters incidental thereto or connected with the foregoing.” [ 46] The status of registration books as proof of ownership of a very common type of movable asset capable of hypothecation becomes apt. As my parting _obiter_ shot, I express the optimism that commerce will shift a gear up and embrace these new perspectives in securitisation of risk and relationships, given the agony associated with traditional recovery options such as execution. But possibly a discourse for another day. Having opined thus I revert to the present dispute.” [34] The above exerts refer to the tribulations faced by many a citizen in the realm of vehicle registration. The applicant`s application for amendment is predicated on similar impediments or frustrations associated with perfecting ownership to the chattel it purchased. Could its attempt at vindication, via the amendment application be dismissed is the colourful terms of “malicious”, “frivolous” and “vexatious?” That it is “… _obviously unsustainable, manifestly groundless or utterly hopeless and without foundation”_? 5 DISPOSITION [35] Ms _Mabhungu`_ s spirited cavils to me amounted to no more than a commentary on inelegant litigation rather than outright misconduct or mala fides. Clearly, as noted at commencement of this judgment, the applicant could have prosecuted its rights with greater diligence or perspicacity. But the missteps it took form the very factors which the facility of r 49 was created to address. [36] Much was said by Ms _Mabhungu_ about prejudice on the part of the respondents. But in my view, the protestations relate to matters ordinarily assuaged by a normal order of costs. I am fortified in this conclusion given that this withdrawal effectively puts the litigation between the parties (in both the main and this application) to rest. The main matter is already out of court. I am thus not persuaded that the respondents have made a proper case for an award of punitive costs. It is therefore ordered that; - 1. The prayer by applicant to withdraw the present application for leave to amend its summons, declaration and evidentiary bundle in case number HCHC 724/23 be and is hereby granted. 2. Applicant pays costs of suit on an ordinary scale. _Matsikidze Attorneys At-Law_ – applicant`s legal practitioners _Dube-Banda, Nzarayapenga & Partners_\- respondents` legal practitioners **[CHILIMBE J___28/1/26]** . 1 Hereinafter referred to as the “Commercial Court Rules” to distinguish them from their tandem High Court Rules SI 123/20 (“the High Court Rules”) 2 5th edition, Volume 2, Juta. 3 See paragraph 2 of the respondents` “Supplementary Heads on Costs” filed on 21 January 2026. 4 In terms of r 66 (3) of the High Court Rules as read with r 4 (2) of the Commercial Court Rules. 5 Per MATHONSI J (as he then was) in _Gillespie v Msema_ HB 149-18. See also _S v Cooper & Ors_ 1977 (3) SA 475 (T) at 476,