MOTOR INSURANCE POOL OF ZIMBABWE Versus TRACY IRENE MARK (formerly known as TRACEY IRENE McANINCH) And 2 Others (HB 08 of 26) [2026] ZWBHC 8 (21 January 2026)

3 HB 08/26 HCBC 563/25 **MOTOR INSURANCE POOL OF ZIMBABWE** **Versus** **TRACY IRENE MARK (formerly known as TRACEY IRENE McANINCH)** **And** **ANDREW JOHN McANINCH** **And** **JONATHAN MARC ORGILL (formerly known as JONATHAN MARC McANINCH)** **And** **DANIEL RYAN McANINCH** IN THE HIGH COURT OF ZIMBABWE NDUNA J BULAWAYO 21 JANUARY 2026 _**Court application for payment of security for costs in terms of rule 75 (3) of the high court rules**_ _L Nkomo,_ for the applicant _N Mazibuko,_ for the respondents **NDUNA J** : A party may demand security for costs to ensure that, in the event the party making demand is successful in the litigation, the costs incurred can be recovered. The common law primarily identifies three situations where security for costs can be demanded: viz: 1. actions by peregrini plaintiffs, 2. actions by insolvents, and, 3. cases where the action is vexatious, reckless, or amounts to an abuse of the court process. Rule 75 of the High Court Rules, 2021 lays down the framework by which security for costs may be demanded. The rule, however, remains silent on the grounds for such a demand, these being found primarily in common law and statutory provisions, which must be examined to discern the circumstances under which security for costs may be warranted. A notable common law principle is that a peregrinus (a party outside the territorial jurisdiction of the court) may be called upon to provide security for costs, especially in the absence of unmortgaged immovable property owned within Zimbabwe. The relevant rule, that is Rule 75, provides as follows:— _75\. Security for costs_ (1) A party entitled and desiring to demand security for costs from another shall, as soon as possible after the commencement of proceedings, deliver a notice setting forth the grounds upon which security is claimed and the amount demanded. (2) If the amount of security only is contested the registrar shall determine the amount to be given and his or her decision shall be final. (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_. (4) The judge or court may, if security is not given within a reasonable time, on application dismiss any proceedings instituted or strike out any pleadings filed by the party in default, or make such other order as to it may seem fit. (5) Any security for costs shall, unless the judge or court otherwise directs, or the parties otherwise agree, be given in the form, amount and manner directed by the registrar. (6) The registrar may, upon the application of the party in whose favour security is to be provided and on notice to interested parties, increase the amount thereof if he or she is satisfied that the amount originally furnished is no longer sufficient and his or her decision shall be subject to review by the court. (7) Notwithstanding anything contained in this rule a person to whom legal aid is rendered by a statutorily established legal aid board or in terms of these rules, is not compelled to give security for the costs of the opposing party, unless the court directs otherwise. The demand for security of costs is being resisted by the Respondents. The grounds for such resistance are as follows: - 1. that the respondents are citizens of Zimbabwe and therefore are not supposed to pay the security for costs 2. that by virtue of section 35 and section 56(1) of the Constitution which bars any discrimination are protected from the payment of security of costs 3. that the requirement for costs is rule of practice which this court can choose not to enforce In order to arrive at a decision in this regard, it is in my view imperative to go back to the fundamentals. According to the old decision _of Witham v Venables (1828) Menzies 291_ the general rule applicable to security for costs, was stated in the following terms: “No person, who is either civis municeps or incola of this country, can, as plaintiff, be compelled to give security for costs, whether he be rich or poor, solvent or insolvent, and on the other hand, . . . every person, who is neither civis municeps, nec incola, may be called on to give security for costs, unless he proves that he is possessed of immovable property, situated within the colony.” The upshot of this decision, and what is inevitably deducible from the foregoing, is that the issue of security for costs is primarily designed to protect an _incola_ from being put to the expense of defending a claim in his or her jurisdiction at the instance of a _peregrinus_ of that court. Though not stated above, this is so for the reason that, should the defendant successfully defend or deflect the said lawsuit and a favourable order for costs be granted in that party’s favour, the party would only be able to satisfy that judgment by having to pursue the said _peregrinus_ in his or her country of domicile, as he or she will ordinarily not have any property against which to satisfy the judgment within the _incola_ ’s jurisdiction where the proceedings would have been instituted. In _Setecki v Setecki,_ _1917 TPD (Vol I) 165_ the court stated the following:- ‘Apparently it was by practice of the Courts that a foreigner was compelled to select a _domicilium citandi_ and to give security for costs: the reasons for this practice are plain and justifiable, and the rule though not due to any definite law, so far as I can judge, probably originated in the old custom of requiring all plaintiffs to give security. But the practice seems always to have been applied in favour of an incola.’ It therefore becomes clear that the grant of an application for security for costs was primarily made in favour of _an incola_. Furthermore, such applications were born out of practice and not from application of principles of substantive law. It is imperative to add that in Zimbabwe we have a statutory provision which provides for costs. The learned author, A.C. Cilliers _,_ on _Law of Costs, 2_ _nd_ _edition at para 5.18_. states the purpose of security for costs as the following: ‘It has been suggested that the object of this rule is to ensure that the successful litigant recovers his costs from an unsuccessful peregrini plaintiff whether the latter was vexatious or not. For if the peregrini plaintiff loses the action, the security deposited by him is available to defray the successful defendant’s costs’. In _Prosecutor-General v Nzinu, (A22/2013)[[2014] NAHCNLD 38](/akn/na/judgment/nahcnld/2014/38) (02 July 2014) _CHEDA J stated the following nuggets of wisdom regarding the factors that the court may take into account in the exercise of its discretion in such matters: – 1. the residential circumstances and domicile of the foreigner. If the foreigner has no fixed address and country of domicile, the court is likely to order such a foreigner to furnish security for costs than in a case of one who has a fixed address and domicile. In this regard, the court is also more likely to order security to a foreigner who lives in a country where the court’s order cannot be executed than where it can be easily given effect to; 2. the financial circumstances of the said foreigner, so as not to place access to the court and justice, so to speak, beyond the means of the foreigner; 3. the character of the foreigner. If the foreigner strikes the court as a person not to be a person of honour and integrity, a rascal, for the lack of a better word, the court is likely to order security against such a party. The Respondents in this matter do not declare themselves to be owners of any property in Zimbabwe and this militates towards the granting of the order sought by the applicant. It would not be proper for this court to adopt the approach forwarded by the Respondents. The issue relating to the furnishing of security for costs by a plaintiff who is a _peregrinus_ is discussed by the learned authors of _The Civil Practice of the Superior Courts of South Africa 3rd ed at p 251_. There, the learned authors have this to say: “A peregrinus who initiates proceedings in our courts must, as a general rule, give security to the defendant for his costs, unless he has within the area of jurisdiction of the court immovable property with a sufficient margin unburdened to satisfy any costs which may arise. The presence of immovable property is a defence to a claim for security, but the doctrine has not been extended to include movable property. The court has, however, a discretion to dispense with security in exceptional cases, but should exercise its discretion sparingly”. The rule for the _peregrinas_ to pay security for costs has been in place for quite a long time. It is recorded to have been in place as far back as 1828 in the case of _Witham ve Venables_(supra). The object of the rule is to make sure that an _incola_ will not suffer any loss if he is awarded the costs of the proceedings. The rule exists primarily to protect the interests of an i _ncola_ who is sued by _a peregrinus_. (_Zendera v Mcdade & Anor 1985 (2) ZLR 18 (HC)._ It is therefore clearly the case that this cannot be resisted by a resident of a foreign country on the basis of a claim to citizenship of this country. Being a citizen of Zimbabwe when one has no meaningful links with the country is not acceptable as the basis to resist a cost order. The question of having immovable property in Zimbabwe is meant to safe guard the question of costs. Now where there is no fixed property in Zimbabwe and the _peregrinus_ has effectively relocated to a foreign country makes this application more appropriate to safe guard the applicant’s costs in the litigation. Accordingly, the application should be granted. It is ordered as follows: - 1. The Application for Security for Costs be and is hereby granted. 2. The Respondents be and are hereby ordered to pay security for the Applicant’s costs in HCBC1237/24 and the proceedings in Case number HCBC1237/24 be and are hereby stayed pending the payment of security for legal costs by the Respondents. 3. Within seven (7) days from the date of this order, the Applicant shall deliver a notice to the court and to the Respondents setting forth the amount of security for costs they propose that the Respondents pay and the grounds for claiming such an amount as applicable. 4. Within seven (7) days from the date of delivery of such notices, the Respondents shall deliver a response to the notices dealing with the quantum of the proposed security for costs. 5. Should the Respondents not be in agreement with the proposed amount for security for costs, the matter shall be referred by the Applicant to the Registrar of the High Court who within fourteen (14) days from the date of referral shall determine the amount, form and manner of payment of the security for costs and the Registrar’s decision shall in terms of r 75(2) of the High Court Rules, 2021, be final. 6. The Respondents shall pay the amount determined by the Registrar as applicable within twenty-one (21) days from the date of the decision and should they fail, refuse or neglect to pay the Applicant may make an application for the dismissal of the HCBC 1237/24. 7. Upon payment of security for costs, the Respondents’ legal practitioners shall notify the court in writing. 8. The Respondents shall pay the costs of this application. _Calderwood, Bryce Hendrie and Partners_ , applicant’s legal practitioners _Atherstone and Cook_ , respondents’ legal practitioners