DUNHURAMAMBO (PVT) LTD t/a ZAMBEZI CRUISE & SAFARIS v MASHAYAMOMBE and Another (278 of 2025) [2025] ZWHHC 278 (30 April 2025)

4 HH 278 -25 Case No HC 1468/24 DUNHURAMAMBO (PVT) LTD t/a ZAMBEZI CRUISE & SAFARIS versus T P MASHAYAMOMBE N.O. and CHARLES NIKOBASA HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 29 January 2025 & 30 April 2025 Opposed Application- Review of Taxation Mrs J Wood, for the applicant Mr G Sithole, for the 2nd respondent MUSITHU J: This an application for the review of taxations carried out by the first respondent in two related matters in which the applicant and the second respondents were the litigants. In both cases, that is HCC 4/22 and HCC 8/22, the second respondent was awarded costs against the applicant on the legal practitioner and client scale. The taxation of the costs in both matters were set down for hearing before the first respondent on 9 February 2024, at the Chinhoyi High Court. The applicant engaged Warhurst Attorneys to oppose the taxation on its behalf. Background to the applicant’s case The applicant’s legal practitioners wrote a letter to Mr Mutsvairo, their correspondent legal practitioner with detailed notes and comments regarding their objections to the draft bills of costs. The offending items on the bill of costs in respect of HCC 4/22, were as follows. In respect of item 4, it was averred that the first respondent should have disallowed all the clerical attendances that Mr Mushuma, the second respondent’s legal practitioner, claimed to have carried out himself. The applicant submitted that Mr Mushuma ought to have employed clerical staff to make these attendances. Item 29 was concerned with the arranging of documents and annexures. This was reduced from 2 and half hours to 1 hour. The applicant argued that it was implausible that Mr Mushuma personally arranged documents and annexures for even one hour and spent another 30 minutes drafting the index and sorting out annexure page numbers in item 30. These were always done by a legal secretary. In item 34 Mr Mushuma claimed that he bound, indexed and paginated three copies, which took him 25 minutes. In respect of item 55, there was a claim for 8 hours of legal research. The applicant contended that the claim was over inflated, and the first respondent ought to have insisted on the notes to confirm the alleged research. It was inconceivable that Mr Mushuma would have spent 8 hours of legal research. In item 56, the second respondent’s counsel claimed that he spent 14 hours drafting heads of argument. The applicant averred that this was physically impossible even if it was true. First respondent reduced the claim by 4 hours to 10 hours. The applicant believed that it was inconceivable that after the 8 hours of research the previous day, counsel would still need 10 hours to prepare the heads of argument. Item 61 was reduced from 5 hours of proof reading, formatting and printing to 1 hour. The applicant argued that the notation regarding formatting, printing and making copies referred to clerical duties and therefore the claim ought to have been disallowed in full. In respect of item 66, it was averred that the first respondent appeared to accept that traveling to Chinhoyi and back including appearing in chambers took nearly 8 hours and then granted a premium on top of that. In respect of item 86, the first respondent reduced the time for perusing judgment to only 20 minutes. In item 91, the claim for drafting the bill of costs was reduced from 6 hours to 5 hours. The applicant averred that it was inconceivable that drafting 97 bill of costs items, most of which were clerical, would have taken 5 hours. In respect of item 93, proofreading the bill of costs, formatting and printing was reduced from 2 hours to 1 hour. The applicant argued that this was absurd for something as inconsequential as having to check the precise wording of standard entries on the bill of costs. In respect of item 96, it was submitted that it was an extra ordinary claim for 5 hours to issue a notice of taxation. This could and should have been done by a corresponding attorney’s clerk, and yet this was only reduced by 20 units. The applicant submitted that it was incumbent on parties to mitigate their costs and it would have been a lot easier and cheaper for Mr Mushuma to have used correspondent attorneys than do the attendances himself. The costs of him travelling for taxation should have been disallowed and a reduced rate for the correspondent attorney of lesser experience could have and should have been used. The applicant was prepared to concede for an hour and a half of a basic rate of US$150.00 per hour, which would equate to US$225.00, rather than the US$620.00 allowed in the one notice of taxation, and US$1210.00 granted in the other taxation. In respect of HCC 8/22, the applicant averred that the only items removed/reduced by the first respondent were item 3, where there was a claim for an hour’s attendance by Mr Mushuma scanning the application to client. It was inconceivable that this was not done by his secretary and therefore should be completely disallowed. The first respondent reduced the attendance to half an hour by Mr Mushuma himself, which was still unacceptable. Item 75 was a claim for drafting an application for joinder. It allegedly took counsel 7 hours to draft that application. The issue was whether this was not a separate application which ought to have been the subject of a separate taxation. Then there was the issue of whether drafting such an application would need 7 hours (a precise round number) in a total of 10 hours of work billed on that day. This was based on adding up all the time spent on all the attendances for 10 February 2022. It was averred that the charge raised for that day was US$3 745.35, which would equate to billing for 12 hours work in one day. The applicant contended that this was just incredible. The applicant further averred that a fair charge for drafting an application of this nature would not exceed 2 hours at most. Item 77 was a claim for proof reading, formatting and then printing taking an hour and half. The applicant claimed that most of the work would have been clerical and therefore not recoverable by the second respondent’s counsel. In any case, proof reading such an application would not have taken more than 15 minutes or 3 units. The first respondent had only disallowed 8 or 10 units. Item 90 was a claim for scanning, photocopying, printing, binding and pagination, all of which could be done by a secretary. This was on 11 February 2022. The claim was for 5 hours, which the first respondent had only reduced by 3 hours. The applicant argued that the claim should be disallowed in its entirety. Item 91 was a claim for attending at the Chinhoyi High Court to file papers and Mr Mushuma had charged for 6 hours of work. The total attendances for 11 February 2022 were 689 minutes. The applicant also contended that throughout the bill of costs there was a 1-unit charge for every little message or email no matter how brief between Mr Mushuma and his client. This, according to the applicant, was unfair. A fairer charge would have been half a unit for an email and one fifth of a unit for a whatsapp message. The applicant also referred to item 97 which was another 7-hour claim where it was alleged that Mr Mushuma argued the matter for 3 hours. The figure was also conveniently rounded up. Counsel was expected to prove the actual time in court instead of a convenient round figure of 7 hours. There was also item 99 for drafting the bill of costs where a claim for 6 hours was made. The first respondent reduced it to 3 hours. The applicant averred that the number was inflated as it should not have taken more than 450 minutes at the most to draft the bill of costs. There was also item 101 for proofreading an 8-page bill of costs. The first respondent disallowed 12 units and accepted an hour worth of the attendances. The applicant averred that at any rate, the second respondent’s legal practitioners had engaged correspondent attorneys being Matarutse & Partners who were based in Chinhoyi. The personal attendances outside Harare by Mr Mushuma were therefore unnecessary, and yet these were claimed and allowed by the first respondent. According to the applicant, no decision was reached immediately on the taxation and the first respondent, withdrew, presumably to consider the submissions made. Eventually on 26 February 2024, the duly taxed Bills of Costs were served on the applicant’s correspondent legal practitioners. Save for a few minor amendments, the draft Bills of Costs were largely not interfered with much to the applicant’s surprise. The applicant averred that the first applicant failed to apply her mind to the exigency of the submissions made and the cogent reasons incorporated therein leading to grossly unreasonable and patently wrong decisions in both cases. For the foregoing reasons, the applicant prayed for the review of the taxation in each case to take cognisance of the comments made in the formal written submission. The applicant also prayed that all formal attendances and those of a secretarial/clerical nature be deleted and that one hour of legal research be permitted and 3 hours for drafting heads of argument and 4 hours for attending the hearing itself. The applicant conceded to the minor amounts and those items not addressed in the written submissions and also in respect of HCC 8/22. The applicant further averred that given the extent of the exaggerations presented by the second respondent’s legal practitioners, this was a befitting case not only for the striking out of the costs of taxation, but also for the costs of the application to be borne by the second respondent de bonis propriis and on the legal practitioner and client scale, to mark the court’s disapproval of the extent of the exaggeration. The Second Respondent’s Case The second respondent’s opposing affidavit was deposed to by Oliver Mushuma, in his capacity as the second respondent’s legal practitioner. He represented the applicant in the proceedings that resulted in the taxed bills of costs. He also prepared the bills of costs and attended taxation on behalf of the second respondent. The opposing raised the preliminary point that the application was improperly before the court on two grounds. The first ground was that the two applications that led to the taxation of the two bills of costs were heard and determined at the High Court in Chinhoyi. Taxation of the bills of costs was also done at the same Court. The present application was filed at the High Court in Harare, instead of the Chinhoyi High Court. The applicant was therefore accused of forum shopping, which was not permissible. The second ground was that the application for review was filed out of time contrary to r 72 subrule 26 of the High Court rules. The bills of costs were taxed on 9 February 2024, and the applicant did not make a follow up to uplift the taxed bills on 10 February 2024. It was not until seventeen days had passed that the applicant uplifted the taxed bills of costs. For purposes of r 72(26), the fourteen-day period within which the application for review ought to have been filed was reckoned from the date on which the decision complained of was made, which was 9 February 2024. The applicant’s counsel had been informed of these anomalies by letter of 19 March 2024, but it did not take heed. The court was urged to dismiss the application with costs de bonis propriis on an attorney and client scale on account of the applicant’s attorneys ignoring pertinent issues brought to their attention. As regards the merits, it was averred that the averments made from para (s) 8.1 to 8.2.18 of the applicant’s founding affidavit did not meet the peremptory requirements of r 72 subrule 28 para(s) (a),(b),(c) and (d) in that: the applicant did not specify the specific items forming the subject of its grievance; the application lacked particularity and specificity in that it assumed that oral objections were made in respect of everything mentioned in Annexure B to its founding affidavit; there were no grounds of objection in the founding affidavit as required by para (c) of r 72(28). The contents of annexure B did not comply with para (c) because the statements made therein were argumentative, and the author was expressing an opinion and making general comments. Lastly, it was averred that the application did not list any findings of fact made by the first respondent in respect of each item objected to. According to the second respondent, the taxed bill of costs in HCCC 4/22 was concerned with an urgent chamber application filed by the applicant on an ex parte basis seeking final relief attaching the second respondent’s houseboat without citing the second respondent. When the second respondent became aware of these developments, he then made the application for joinder under HCCC 8/22. The second respondent maintained that annexure B did not comply with the requirements of r 72(28) (a)(b)(c) and (d). Further, and in any event, it was averred that every item taxed and allowed by the first respondent was proved to the satisfaction of the first respondent at taxation. The court was urged to dismiss the application on the attorney and client scale for lack of merit. Submissions At the commencement of the hearing, Mr Sithole for the second respondent abandoned the preliminary point on forum shopping. He however persisted with the submission that the application was not properly before the court because it was out of time. Mr Sithole submitted that the first respondent endorsed her decision on 9 February 2024. The present application was filed on 18 March 2024. Fourteen working days lapsed on 1 March 2024. It was therefore filed out of time. No condonation was sought and non was granted for non-compliance with r 72(26). Mr Sithole further submitted that it was wrong for the applicant to count the dies induciae from the time they uplifted the taxed bill. The provision was not concerned with when a litigant got the ruling of the first respondent, but the date of the ruling. Further, the first respondent was not required to serve the taxed bill. Rather, it was the parties who were expected to go and uplift the taxed bill. In response, Mrs Wood for the applicant submitted that the second respondent’s counsel had conveniently avoided mentioning the supporting affidavit of the Chinhoyi correspondent legal practitioner who attended taxation on behalf of the applicant. The said legal practitioner had explained the circumstances under which the appellant obtained the first respondent’s ruling. In the answering affidavit, the applicant averred that it was unlikely that the bills were taxed on 9 February 2024. Counsel further submitted that if the court considered that there was a delay, then this was a proper case for condonation. Analysis of the preliminary point This application was filed in terms of r 72(26) of the rules. Rule 72 deals with the taxation of costs and review of taxation. The relevant provision reads as follows: “(26) A party aggrieved by the decision of a taxing officer may apply to court within fourteen days after the taxation to review such taxation. The application shall be by court application to the taxing officer and to the opposite party, if such opposite party was present at the taxation or if the court decides that such opposite party should be represented.” (Underlining for emphasis) My interpretation of the above provision is that an application for review must be filed within 14 days of the handing down of the first respondent’s decision on the taxation. Both parties were represented at the taxation by their respective counsels. The stamp impression on the two taxed bills showed that the two bills were taxed and signed by the first respondent on 9 February 2024. The fourteen days within which the application for review was to be filed lapsed on 1 March 2024. The second respondent’s contention was that this application ought to have been filed within 14 days from the date the taxing officer made her decision. That date was 9 February 2024. Counsel for the applicant on the other hand urged the court to consider the explanation given by their correspondent legal practitioner in Chinhoyi for the delay in the handing down of the decision and its service on the applicant. The supporting affidavit of Tinashe Douglas Dzvore, the applicant’s Chinhoyi correspondent was attached to the applicant’s answering affidavit. He attended taxation on 9 February 2024 together with Mr Mushuma for the second respondent. Mr Dzvore claimed that the first respondent requested him to leave the detailed email from Mr Warhurst in which all objections were set out, and in respect of which Mr Dzvore had made submissions on during taxation. Mr Dzvore claimed that the first respondent informed the parties that she would go through the objections and collate them with the bills of costs and then serve the parties thereafter. He further claimed to have made a follow up enquiry with the first respondent on 13 February 2024, and he was advised that she was still working on the bills. A further follow up enquiry was made on 20 February 2024, and he was given the same response. The copies of the taxed bills of costs were only served at their offices on 26 February 2024. Mr Dzvore then referred to what he called “the receiving stamp indicating clearly the date that we received the taxed Bill of Costs”. The apparent lack of detail in Mr Dzvore’s supporting affidavit does little to help explain the delay in filing the application. The supporting affidavit does not explain who served the copies of the taxed bills at Mr Dzvore’s offices on 26 February 2024. Further, the document with the stamp impression confirming the date on which the correspondent attorney received the taxed bills of costs was also not attached. It is not clear whose stamp impression Mr Dzvore was even referring to. The importance of complying with rules of court has been restated by the superior courts’ times without number. In Delta Beverages (Private) Limited v Zimbabwe Revenue Authority1, the Supreme Court reiterated the position of the law as follows: “The need to comply with the rules of court cannot be over emphasised especially where the rule is peremptory. Where strict compliance with Rules of court is required, litigants must so comply because anything less will potentially prejudice the other party. In Chikura & Anor v Al Sham’s Global BVI Limited SC 17/2017 Ziyambi Ja had occasion to remark that: “The Rules are made for the proper running of the Court. Failure to comply with its mandatory provisions will render an appeal a nullity. See Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).” In casu, it is clear that the applicant failed to comply with r 30 (c). It has not been condoned for its non-compliance with the Rules of court hence this application is a legal nullity. Against the backdrop of the foregoing, it becomes unnecessary for me to deal with the merits of this application.” In a recent judgment from the same court in Cape Valley Properties (Private) Limited & 2 Ors v Chiduku & 3 Ors2, the court also underscored the importance of complying with rules of court when it held as follows: “[17] A party who seeks the assistance of the court must do so in terms of the court’s rules. Disregarding the court’s rules renders the applicant’s application fatally defective and a nullity. In the case of Mupungu v Minister of Justice, Legal & Parliamentary Affairs CCZ 7/21, PATEL JCC commenting on the need to comply with the rules of court at pp 34 to 35 of the cyclostyled judgment said: “One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited. To conclude this aspect of the matter, I am satisfied that the proceedings a quo were fatally defective and constitute a nullity for failure to comply with r 18 of the High Court Rules...” What emerges from these two authorities is that where rules of court prescribe the time limits within which certain actions must be undertaken, then those time limits must be observed. There must be a reason why the drafters of the rules considered it necessary to prescribe those time limits. It was clear to the applicant’s legal practitioners that the decision of the first respondent was made on 9 February 2024. There was the court’s stamp impression and the first respondent’s signature to that effect. In the answering affidavit, the applicant sought to cast some doubt on whether the bills of costs were taxed on 9 February 2024. This allegation probably insinuated some underhand tactics involving the first respondent. It was however not explained further, and neither did the applicant indicate when it thought the decision was actually made by the first respondent. Notwithstanding the above unverified allegation, it is clear to me that the applicant’s counsel was aware that the period within which the application for review ought to be filed was to be reckoned from within 14 days of the first respondent’s decision. Rule 72(26) is not concerned about the date the applicant became aware of the decision or the date of service of that decision. That provision is concerned with the date on which the decision was made. The request by the applicant’s counsel for the court to condone the filing of the application must be considered in the context of the overall circumstances of the case. It must also be recalled that a request for condonation is not there for the mere asking. The court is reposed with discretion to condone or not to condone depending on the explanation given for non-compliance with the rules. The applicant’s legal practitioners did not dispute that they were served with a letter from the second respondent’s legal practitioners dated 19 March 2024, warning them that the application for review was filed out of time. In the answering affidavit, the applicant sought to dismiss the said letter on the basis that the second respondent had attached the wrong letter to his opposing affidavit. The correct letter had only been attached to the second respondent’s supplementary affidavit which the applicant averred was filed out of time. Be that as it may, in para 6 of his opposing affidavit, the second respondent clearly stated that the attention of the applicant’s counsel had been drawn to this anomaly by way of a letter dated 19 March 2024. It was only that a wrong letter was then attached. The applicant’s counsel was aware of that letter and its contents. The applicant’s legal practitioners were therefore aware that an objection was going to be taken concerning the late filing of the application for review. Instead of dealing with that anomaly through an application for condonation, they attached to the applicant’s answering affidavit, the supporting affidavit of Mr Dzvore. Mr Dzvore’s explanation would have assisted the applicant’s cause in an application for condonation. Although Mr Dzvore sought to explain the date on which the first respondent’s decision was served on him, still the explanation did not assist the applicant’s cause because r 72(26) is not concerned with the service of the decision on the parties. It is concerned with the date on which the decision was made. The court is satisfied that the application for review was out of time. It did not comply with r 72(26). The applicant ought to have approached the court for condonation for non-compliance with that provision before launching the present application. Having made that finding, it becomes unnecessary to traverse the remaining preliminary points and the merits of the matter. Costs of suit The court was urged to dismiss the application with costs de bonis propriis on an attorney and client scale because of the conduct of the applicant’s attorneys in ignoring pertinent issues brought to their attention. The court was not satisfied that the conduct of the applicant’s legal practitioners was so gross as to invite an order of costs on that scale. Resultantly it is ordered that: The application is hereby struck of the roll.The applicant shall bear the second respondent’s costs of suit. Musithu J…………………………………………………………….. Warhurst Attorneys, legal practitioners for the applicant Mushuma Law Chambers, legal practitioners for the 2nd respondent 1 SC 9/19 at pages 3-4 2 SC 113/23 at pages 3-4 4 HH 278 -25 Case No HC 1468/24 4 HH 278 -25 Case No HC 1468/24 DUNHURAMAMBO (PVT) LTD t/a ZAMBEZI CRUISE & SAFARIS versus T P MASHAYAMOMBE N.O. and CHARLES NIKOBASA HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 29 January 2025 & 30 April 2025 Opposed Application- Review of Taxation Mrs J Wood, for the applicant Mr G Sithole, for the 2nd respondent MUSITHU J: This an application for the review of taxations carried out by the first respondent in two related matters in which the applicant and the second respondents were the litigants. In both cases, that is HCC 4/22 and HCC 8/22, the second respondent was awarded costs against the applicant on the legal practitioner and client scale. The taxation of the costs in both matters were set down for hearing before the first respondent on 9 February 2024, at the Chinhoyi High Court. The applicant engaged Warhurst Attorneys to oppose the taxation on its behalf. Background to the applicant’s case The applicant’s legal practitioners wrote a letter to Mr Mutsvairo, their correspondent legal practitioner with detailed notes and comments regarding their objections to the draft bills of costs. The offending items on the bill of costs in respect of HCC 4/22, were as follows. In respect of item 4, it was averred that the first respondent should have disallowed all the clerical attendances that Mr Mushuma, the second respondent’s legal practitioner, claimed to have carried out himself. The applicant submitted that Mr Mushuma ought to have employed clerical staff to make these attendances. Item 29 was concerned with the arranging of documents and annexures. This was reduced from 2 and half hours to 1 hour. The applicant argued that it was implausible that Mr Mushuma personally arranged documents and annexures for even one hour and spent another 30 minutes drafting the index and sorting out annexure page numbers in item 30. These were always done by a legal secretary. In item 34 Mr Mushuma claimed that he bound, indexed and paginated three copies, which took him 25 minutes. In respect of item 55, there was a claim for 8 hours of legal research. The applicant contended that the claim was over inflated, and the first respondent ought to have insisted on the notes to confirm the alleged research. It was inconceivable that Mr Mushuma would have spent 8 hours of legal research. In item 56, the second respondent’s counsel claimed that he spent 14 hours drafting heads of argument. The applicant averred that this was physically impossible even if it was true. First respondent reduced the claim by 4 hours to 10 hours. The applicant believed that it was inconceivable that after the 8 hours of research the previous day, counsel would still need 10 hours to prepare the heads of argument. Item 61 was reduced from 5 hours of proof reading, formatting and printing to 1 hour. The applicant argued that the notation regarding formatting, printing and making copies referred to clerical duties and therefore the claim ought to have been disallowed in full. In respect of item 66, it was averred that the first respondent appeared to accept that traveling to Chinhoyi and back including appearing in chambers took nearly 8 hours and then granted a premium on top of that. In respect of item 86, the first respondent reduced the time for perusing judgment to only 20 minutes. In item 91, the claim for drafting the bill of costs was reduced from 6 hours to 5 hours. The applicant averred that it was inconceivable that drafting 97 bill of costs items, most of which were clerical, would have taken 5 hours. In respect of item 93, proofreading the bill of costs, formatting and printing was reduced from 2 hours to 1 hour. The applicant argued that this was absurd for something as inconsequential as having to check the precise wording of standard entries on the bill of costs. In respect of item 96, it was submitted that it was an extra ordinary claim for 5 hours to issue a notice of taxation. This could and should have been done by a corresponding attorney’s clerk, and yet this was only reduced by 20 units. The applicant submitted that it was incumbent on parties to mitigate their costs and it would have been a lot easier and cheaper for Mr Mushuma to have used correspondent attorneys than do the attendances himself. The costs of him travelling for taxation should have been disallowed and a reduced rate for the correspondent attorney of lesser experience could have and should have been used. The applicant was prepared to concede for an hour and a half of a basic rate of US$150.00 per hour, which would equate to US$225.00, rather than the US$620.00 allowed in the one notice of taxation, and US$1210.00 granted in the other taxation. In respect of HCC 8/22, the applicant averred that the only items removed/reduced by the first respondent were item 3, where there was a claim for an hour’s attendance by Mr Mushuma scanning the application to client. It was inconceivable that this was not done by his secretary and therefore should be completely disallowed. The first respondent reduced the attendance to half an hour by Mr Mushuma himself, which was still unacceptable. Item 75 was a claim for drafting an application for joinder. It allegedly took counsel 7 hours to draft that application. The issue was whether this was not a separate application which ought to have been the subject of a separate taxation. Then there was the issue of whether drafting such an application would need 7 hours (a precise round number) in a total of 10 hours of work billed on that day. This was based on adding up all the time spent on all the attendances for 10 February 2022. It was averred that the charge raised for that day was US$3 745.35, which would equate to billing for 12 hours work in one day. The applicant contended that this was just incredible. The applicant further averred that a fair charge for drafting an application of this nature would not exceed 2 hours at most. Item 77 was a claim for proof reading, formatting and then printing taking an hour and half. The applicant claimed that most of the work would have been clerical and therefore not recoverable by the second respondent’s counsel. In any case, proof reading such an application would not have taken more than 15 minutes or 3 units. The first respondent had only disallowed 8 or 10 units. Item 90 was a claim for scanning, photocopying, printing, binding and pagination, all of which could be done by a secretary. This was on 11 February 2022. The claim was for 5 hours, which the first respondent had only reduced by 3 hours. The applicant argued that the claim should be disallowed in its entirety. Item 91 was a claim for attending at the Chinhoyi High Court to file papers and Mr Mushuma had charged for 6 hours of work. The total attendances for 11 February 2022 were 689 minutes. The applicant also contended that throughout the bill of costs there was a 1-unit charge for every little message or email no matter how brief between Mr Mushuma and his client. This, according to the applicant, was unfair. A fairer charge would have been half a unit for an email and one fifth of a unit for a whatsapp message. The applicant also referred to item 97 which was another 7-hour claim where it was alleged that Mr Mushuma argued the matter for 3 hours. The figure was also conveniently rounded up. Counsel was expected to prove the actual time in court instead of a convenient round figure of 7 hours. There was also item 99 for drafting the bill of costs where a claim for 6 hours was made. The first respondent reduced it to 3 hours. The applicant averred that the number was inflated as it should not have taken more than 450 minutes at the most to draft the bill of costs. There was also item 101 for proofreading an 8-page bill of costs. The first respondent disallowed 12 units and accepted an hour worth of the attendances. The applicant averred that at any rate, the second respondent’s legal practitioners had engaged correspondent attorneys being Matarutse & Partners who were based in Chinhoyi. The personal attendances outside Harare by Mr Mushuma were therefore unnecessary, and yet these were claimed and allowed by the first respondent. According to the applicant, no decision was reached immediately on the taxation and the first respondent, withdrew, presumably to consider the submissions made. Eventually on 26 February 2024, the duly taxed Bills of Costs were served on the applicant’s correspondent legal practitioners. Save for a few minor amendments, the draft Bills of Costs were largely not interfered with much to the applicant’s surprise. The applicant averred that the first applicant failed to apply her mind to the exigency of the submissions made and the cogent reasons incorporated therein leading to grossly unreasonable and patently wrong decisions in both cases. For the foregoing reasons, the applicant prayed for the review of the taxation in each case to take cognisance of the comments made in the formal written submission. The applicant also prayed that all formal attendances and those of a secretarial/clerical nature be deleted and that one hour of legal research be permitted and 3 hours for drafting heads of argument and 4 hours for attending the hearing itself. The applicant conceded to the minor amounts and those items not addressed in the written submissions and also in respect of HCC 8/22. The applicant further averred that given the extent of the exaggerations presented by the second respondent’s legal practitioners, this was a befitting case not only for the striking out of the costs of taxation, but also for the costs of the application to be borne by the second respondent de bonis propriis and on the legal practitioner and client scale, to mark the court’s disapproval of the extent of the exaggeration. The Second Respondent’s Case The second respondent’s opposing affidavit was deposed to by Oliver Mushuma, in his capacity as the second respondent’s legal practitioner. He represented the applicant in the proceedings that resulted in the taxed bills of costs. He also prepared the bills of costs and attended taxation on behalf of the second respondent. The opposing raised the preliminary point that the application was improperly before the court on two grounds. The first ground was that the two applications that led to the taxation of the two bills of costs were heard and determined at the High Court in Chinhoyi. Taxation of the bills of costs was also done at the same Court. The present application was filed at the High Court in Harare, instead of the Chinhoyi High Court. The applicant was therefore accused of forum shopping, which was not permissible. The second ground was that the application for review was filed out of time contrary to r 72 subrule 26 of the High Court rules. The bills of costs were taxed on 9 February 2024, and the applicant did not make a follow up to uplift the taxed bills on 10 February 2024. It was not until seventeen days had passed that the applicant uplifted the taxed bills of costs. For purposes of r 72(26), the fourteen-day period within which the application for review ought to have been filed was reckoned from the date on which the decision complained of was made, which was 9 February 2024. The applicant’s counsel had been informed of these anomalies by letter of 19 March 2024, but it did not take heed. The court was urged to dismiss the application with costs de bonis propriis on an attorney and client scale on account of the applicant’s attorneys ignoring pertinent issues brought to their attention. As regards the merits, it was averred that the averments made from para (s) 8.1 to 8.2.18 of the applicant’s founding affidavit did not meet the peremptory requirements of r 72 subrule 28 para(s) (a),(b),(c) and (d) in that: the applicant did not specify the specific items forming the subject of its grievance; the application lacked particularity and specificity in that it assumed that oral objections were made in respect of everything mentioned in Annexure B to its founding affidavit; there were no grounds of objection in the founding affidavit as required by para (c) of r 72(28). The contents of annexure B did not comply with para (c) because the statements made therein were argumentative, and the author was expressing an opinion and making general comments. Lastly, it was averred that the application did not list any findings of fact made by the first respondent in respect of each item objected to. According to the second respondent, the taxed bill of costs in HCCC 4/22 was concerned with an urgent chamber application filed by the applicant on an ex parte basis seeking final relief attaching the second respondent’s houseboat without citing the second respondent. When the second respondent became aware of these developments, he then made the application for joinder under HCCC 8/22. The second respondent maintained that annexure B did not comply with the requirements of r 72(28) (a)(b)(c) and (d). Further, and in any event, it was averred that every item taxed and allowed by the first respondent was proved to the satisfaction of the first respondent at taxation. The court was urged to dismiss the application on the attorney and client scale for lack of merit. Submissions At the commencement of the hearing, Mr Sithole for the second respondent abandoned the preliminary point on forum shopping. He however persisted with the submission that the application was not properly before the court because it was out of time. Mr Sithole submitted that the first respondent endorsed her decision on 9 February 2024. The present application was filed on 18 March 2024. Fourteen working days lapsed on 1 March 2024. It was therefore filed out of time. No condonation was sought and non was granted for non-compliance with r 72(26). Mr Sithole further submitted that it was wrong for the applicant to count the dies induciae from the time they uplifted the taxed bill. The provision was not concerned with when a litigant got the ruling of the first respondent, but the date of the ruling. Further, the first respondent was not required to serve the taxed bill. Rather, it was the parties who were expected to go and uplift the taxed bill. In response, Mrs Wood for the applicant submitted that the second respondent’s counsel had conveniently avoided mentioning the supporting affidavit of the Chinhoyi correspondent legal practitioner who attended taxation on behalf of the applicant. The said legal practitioner had explained the circumstances under which the appellant obtained the first respondent’s ruling. In the answering affidavit, the applicant averred that it was unlikely that the bills were taxed on 9 February 2024. Counsel further submitted that if the court considered that there was a delay, then this was a proper case for condonation. Analysis of the preliminary point This application was filed in terms of r 72(26) of the rules. Rule 72 deals with the taxation of costs and review of taxation. The relevant provision reads as follows: “(26) A party aggrieved by the decision of a taxing officer may apply to court within fourteen days after the taxation to review such taxation. The application shall be by court application to the taxing officer and to the opposite party, if such opposite party was present at the taxation or if the court decides that such opposite party should be represented.” (Underlining for emphasis) My interpretation of the above provision is that an application for review must be filed within 14 days of the handing down of the first respondent’s decision on the taxation. Both parties were represented at the taxation by their respective counsels. The stamp impression on the two taxed bills showed that the two bills were taxed and signed by the first respondent on 9 February 2024. The fourteen days within which the application for review was to be filed lapsed on 1 March 2024. The second respondent’s contention was that this application ought to have been filed within 14 days from the date the taxing officer made her decision. That date was 9 February 2024. Counsel for the applicant on the other hand urged the court to consider the explanation given by their correspondent legal practitioner in Chinhoyi for the delay in the handing down of the decision and its service on the applicant. The supporting affidavit of Tinashe Douglas Dzvore, the applicant’s Chinhoyi correspondent was attached to the applicant’s answering affidavit. He attended taxation on 9 February 2024 together with Mr Mushuma for the second respondent. Mr Dzvore claimed that the first respondent requested him to leave the detailed email from Mr Warhurst in which all objections were set out, and in respect of which Mr Dzvore had made submissions on during taxation. Mr Dzvore claimed that the first respondent informed the parties that she would go through the objections and collate them with the bills of costs and then serve the parties thereafter. He further claimed to have made a follow up enquiry with the first respondent on 13 February 2024, and he was advised that she was still working on the bills. A further follow up enquiry was made on 20 February 2024, and he was given the same response. The copies of the taxed bills of costs were only served at their offices on 26 February 2024. Mr Dzvore then referred to what he called “the receiving stamp indicating clearly the date that we received the taxed Bill of Costs”. The apparent lack of detail in Mr Dzvore’s supporting affidavit does little to help explain the delay in filing the application. The supporting affidavit does not explain who served the copies of the taxed bills at Mr Dzvore’s offices on 26 February 2024. Further, the document with the stamp impression confirming the date on which the correspondent attorney received the taxed bills of costs was also not attached. It is not clear whose stamp impression Mr Dzvore was even referring to. The importance of complying with rules of court has been restated by the superior courts’ times without number. In Delta Beverages (Private) Limited v Zimbabwe Revenue Authority1, the Supreme Court reiterated the position of the law as follows: “The need to comply with the rules of court cannot be over emphasised especially where the rule is peremptory. Where strict compliance with Rules of court is required, litigants must so comply because anything less will potentially prejudice the other party. In Chikura & Anor v Al Sham’s Global BVI Limited SC 17/2017 Ziyambi Ja had occasion to remark that: “The Rules are made for the proper running of the Court. Failure to comply with its mandatory provisions will render an appeal a nullity. See Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).” In casu, it is clear that the applicant failed to comply with r 30 (c). It has not been condoned for its non-compliance with the Rules of court hence this application is a legal nullity. Against the backdrop of the foregoing, it becomes unnecessary for me to deal with the merits of this application.” In a recent judgment from the same court in Cape Valley Properties (Private) Limited & 2 Ors v Chiduku & 3 Ors2, the court also underscored the importance of complying with rules of court when it held as follows: “[17] A party who seeks the assistance of the court must do so in terms of the court’s rules. Disregarding the court’s rules renders the applicant’s application fatally defective and a nullity. In the case of Mupungu v Minister of Justice, Legal & Parliamentary Affairs CCZ 7/21, PATEL JCC commenting on the need to comply with the rules of court at pp 34 to 35 of the cyclostyled judgment said: “One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited. To conclude this aspect of the matter, I am satisfied that the proceedings a quo were fatally defective and constitute a nullity for failure to comply with r 18 of the High Court Rules...” What emerges from these two authorities is that where rules of court prescribe the time limits within which certain actions must be undertaken, then those time limits must be observed. There must be a reason why the drafters of the rules considered it necessary to prescribe those time limits. It was clear to the applicant’s legal practitioners that the decision of the first respondent was made on 9 February 2024. There was the court’s stamp impression and the first respondent’s signature to that effect. In the answering affidavit, the applicant sought to cast some doubt on whether the bills of costs were taxed on 9 February 2024. This allegation probably insinuated some underhand tactics involving the first respondent. It was however not explained further, and neither did the applicant indicate when it thought the decision was actually made by the first respondent. Notwithstanding the above unverified allegation, it is clear to me that the applicant’s counsel was aware that the period within which the application for review ought to be filed was to be reckoned from within 14 days of the first respondent’s decision. Rule 72(26) is not concerned about the date the applicant became aware of the decision or the date of service of that decision. That provision is concerned with the date on which the decision was made. The request by the applicant’s counsel for the court to condone the filing of the application must be considered in the context of the overall circumstances of the case. It must also be recalled that a request for condonation is not there for the mere asking. The court is reposed with discretion to condone or not to condone depending on the explanation given for non-compliance with the rules. The applicant’s legal practitioners did not dispute that they were served with a letter from the second respondent’s legal practitioners dated 19 March 2024, warning them that the application for review was filed out of time. In the answering affidavit, the applicant sought to dismiss the said letter on the basis that the second respondent had attached the wrong letter to his opposing affidavit. The correct letter had only been attached to the second respondent’s supplementary affidavit which the applicant averred was filed out of time. Be that as it may, in para 6 of his opposing affidavit, the second respondent clearly stated that the attention of the applicant’s counsel had been drawn to this anomaly by way of a letter dated 19 March 2024. It was only that a wrong letter was then attached. The applicant’s counsel was aware of that letter and its contents. The applicant’s legal practitioners were therefore aware that an objection was going to be taken concerning the late filing of the application for review. Instead of dealing with that anomaly through an application for condonation, they attached to the applicant’s answering affidavit, the supporting affidavit of Mr Dzvore. Mr Dzvore’s explanation would have assisted the applicant’s cause in an application for condonation. Although Mr Dzvore sought to explain the date on which the first respondent’s decision was served on him, still the explanation did not assist the applicant’s cause because r 72(26) is not concerned with the service of the decision on the parties. It is concerned with the date on which the decision was made. The court is satisfied that the application for review was out of time. It did not comply with r 72(26). The applicant ought to have approached the court for condonation for non-compliance with that provision before launching the present application. Having made that finding, it becomes unnecessary to traverse the remaining preliminary points and the merits of the matter. Costs of suit The court was urged to dismiss the application with costs de bonis propriis on an attorney and client scale because of the conduct of the applicant’s attorneys in ignoring pertinent issues brought to their attention. The court was not satisfied that the conduct of the applicant’s legal practitioners was so gross as to invite an order of costs on that scale. Resultantly it is ordered that: The application is hereby struck of the roll. The applicant shall bear the second respondent’s costs of suit. Musithu J…………………………………………………………….. Warhurst Attorneys, legal practitioners for the applicant Mushuma Law Chambers, legal practitioners for the 2nd respondent 1 SC 9/19 at pages 3-4 1 SC 9/19 at pages 3-4 2 SC 113/23 at pages 3-4 2 SC 113/23 at pages 3-4