GROLEE MINING (PVT) LTD v EVERGREEN CONSTRUCTION (PVT) LTD (226 of 2025) [2025] ZWHHC 226 (31 March 2025)

16 HH 226-25 HCHC 240/24 GROLEE MINING (PVT) LTD Versus EVERGREEN CONSTRUCTION (PVT) LTD HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHIRAWU-MUGOMBA & CHILIMBE JJ HARARE 17 October 2024 and 31 March 2025 Commercial appeal E. Jera for appellant S. Gutsa for respondent CHILIMBE J BACKGROUND [1] This is an appeal against the entire judgment of the Magistrates Court sitting at Harare on 22 March 2024 which ordered as follows; - “In the result it is ordered that, Defendant ordered to pay the sum of US$45, 508.Interest thereon at the prescribed rate calculated from the date of summons to the date of full and final payment.Payment of costs on a legal practitioner and client scale.” PROCEEDINGS IN THE COURT A QUO [2] I will comment briefly on the above order before concluding this judgment. Turning to appeal, respondent, instituted proceedings in the court a quo claiming the sum of US$45,508 as monies by appellant for hire of construction equipment, namely a Hyundai 305 LC excavator, at the rate of US$10,500 per month. [3] In the alternative, respondent prayed for an order of damages for loss of income arising from the alleged unlawful detention of its equipment by defendant for the period 13 June 2020 to 19 October 2020. [4] The claim and its alternative were based on an alleged breach by appellant of a written agreement titled “Memorandum of Agreement for the Lease of Equipment” executed by the parties on 7 May 2020.Essentially therefore, the court a quo was required to determine the parties` contractual rights and obligations in resolving the dispute before it. In that regard, the present appeal must be approached from that perspective. [5] The appellant`s defence a quo was that the contract provided for rentals based on usage rather than the flat monthly fee of US$10,500. raised protestations of breach on the part of respondent as lessor of equipment including break-down of equipment. It further contested respondent`s interpretation of the contractual provisions on duration, mobilisation and demobilisation of equipment fees as well as termination of contract formalities. [6] Finally, respondent contended that the contract violated (an unstated provision in) the Consumer Protection Act [ Chapter 14:44]. The matter was referred to trial on six issues that crystallised into liability and quantum. Respondent bore the onus to prove the appellant`s liability regarding arrear rentals, the quantum thereof, and the alternative claimed as damages. [7] The appellant carried the burden of proof on the alleged non-fitness for purpose of the equipment, the termination of the contract as well as application of the Consumer Protection Act. En route to its judgment, the court a quo was presented with a request and delivery of further particulars, a replication commentary on the facts, a further ventilation of the law and facts in an application for absolution from the instance, (which resulted in a judgment dismissing the application) and finally closing submissions from both sides. [8] The judgment followed a fully-fledged trial in which plaintiff called one witness; - its chief executive officer Mrs Verity Bosha. Defendant drew on the testimony of two witnesses; - its project finance manager Talent Madzima and the site manager Mr Hyde Chatyoka. THE POINT OF LAW RAISED IN DEFENDANT A QUO`S CLOSING SUBMISSIONS: THE PRINCIPLE IN GOLD DRIVEN INVESTMENTS (PVT) LTD v TEL-ONE (PVT) LTD & ANOR SC 9-13 [9] Appellant raised, as a point of law, the argument that plaintiff a quo`s claim was incompetent. It being couched in United States Dollars (USD) without a conversion into local currency. Appellant cited a number of authorities and legislation including Nyahuma`s Law Golden Stairs Chambers v Joseph Makamba Busha HH 304-21, Manica Zimbabwe Limited v Windmill (Pvt) Ltd HH 705-20, and (an unnamed) Statutory Instrument 118A of 2022. [10] The respondent dismissed this point in supplementary written submissions filed a quo. It relied in that respect, on s 2 of the Exchange Control Act [ Chapter 22:05] as read with the Presidential Powers (Temporary Measures) (Amendment of the Exchange Control Regulations) SI 118A of 2022.This point founds ground of appeal number 2. [11] Suffice to say, there was a “currency clause” in the contract which provided as follows; - “5.6 – The above rental fees and equipment withdrawal fees are calculated in US dollars. If the Zimbabwe monetary policy changes at any time the payment method shall be revised and an addendum to the contract be signed by both parties.” FINDINGS OF THE COURT A QUO [ 12] In her judgment, the trial magistrate analysed the oral and documentary evidence placed before her as against the issues to be determined. She made findings on the terms of the contract, the parties` rights and duties as well as performance and breach. It was the trial court`s conclusion that the machine was leased at the fixed or minimum rate of $10, 920 or 156 hours per month. Any extra hours translated to an additional cost for the hirer defendant. I set out the relevant terms below; - “Clause 5 Rent payment method and working hours 5.1 The monthly rent payable for the excavator is $10, 920. [ full stop] The monthly working time is 156 hours which translate (sic) the amount to $70 per hour. 5.2 In the event that the hours exceed 156 hours for the month, the lessee shall pay for the extra hours at the agreed hourly rate.” [13] The court observed in its judgment, that timesheets signed by both parties logged the machine`s operating and down-time hours. As such, the said hours were not in dispute. This was a critical finding. It related to a key aspect of the defence that the machine was not fit for purpose. Such defence alleged breach on the part of respondent. It also attacked the claim for the monthly rate of US$10, 950. The relevant clause went as follows; - “8. Warranties by the Lessor The Lessor warrants that 8.1 The lease equipment is in a state of good repair 8.2……. 8.3……. 8.4 In the event of the breakdown of its equipment, the Lessor shall immediately rectify such breakdown be (sic) repairing or replacing the equipment within 48 hours of the breakdown and, 8.5 No rentals shall be charged for the period in which the Lessee was unable to operate as a result of the breakdown on the equipment.” [14] Against this main finding, the court a quo then found that the excavator was at appellant`s site from 11 May 2020 to 19 October 2020. The appellant, according to the court`s judgment only paid 2 months` rentals for May and June 2020. Respondent received neither payment from appellant, nor income for the machine for the period 13 June 2020 to 19 October 2020.The latter being the demobilisation date of the machine. Importantly, the court a quo ruled that the parties were still bound by the terms of the contract entitling respondent to its minimum US$10, 950 per month. [15] This conclusion derived from the finding that the appellant had an obligation to terminate the contract but deigned to do so. I refer to the judgment of the court a quo on demobilisation fees; - “Clearly, plaintiff is entitled to the arrear rentals as per the claim. Defendant breached the contract by not paying rent for the claimed period when it had not terminated the said contract as agreed or demobilised the machine back to the contract as agreed in the contract.” [16] The relevant termination clause provided as follows; - “10.2 It is expected that the lease will run for the first two months and shall only be terminated on the happening of the following; a) By mutual termination of both parties where it becomes evident that the intended business for which the equipment is leased cannot be proceeded with. b) Breach of the agreement by any of the parties which is not remedies (sic) within seven ordinary days of dispatch of written notice to remedy such breach. c) Any of the parties committing an act of insolvency or is placed under a provisional or final winding up or judicial management or similar process) or the other party makes an assignment for the benefit of creditors, or fails to satisfy or take steps to have set aside any judgment taken against it within 7 (seven) days after such judgment has come to its notice.” THE GROUNDS OF APPEAL [17] The trial court dismissed the alternative claim for damages. The court a quo resulted in the present appeal whose grounds I set out below; - “Grounds of appeal The court quo erred in making a finding that the applicant paid for demobilisation fees on the 19th of October 2020 without any evidence to support that finding.The Court quo erred in failing to make a determination on the legality of granting a claim solely in United States dollars without an alternative option to pay in Zimbabwe dollars at the prevailing rate despite that the legal issue has been raised and argued before it.The court a quo and grossly misdirected itself in finding that the Appellant was supposed to pay rent for the period 13 June 2020 to 19 October 2020 notwithstanding clear evidence that the machine was dysfunctional and could not be used.The court a quo erred in failing to find, as it ought to have done, that the lease between the parties terminated on the 12th of June 2020. The court a quo erred in failing to find that by failing to repair the machine from 13 June 2020, after it had broken down, the Respondent repudiated the contract between the parties.The court a quo erred findings that the appellant was contractually bound to demobilise the machine notwithstanding clear evidence that the machine itself had become dysfunctional.The Court erred and grossly misdirected itself in failing to make a determination on the unfairness of the clause in the agreement between Appellant and Respondent which stated that the agreement could not be terminated in the first two months.The court erred and grossly misdirected itself in finding, contrary to the evidence presented, that it was common cause that Defendant demobilised the machine on 19 October 2020.The court a quo erred and grossly misdirected itself in exercising the discretion to grant costs on a legal practitioner to client scale against the respondent when such costs were not justified. ARGUMENTS BEFORE THIS COURT Grounds number 1 and 8 - no evidence that appellant paid demobilisation fees. [18] Mr Jera argued that there was no evidence that such fees were ever paid. For that reason, he argued that the judgment of the court a quo ought to be vacated. Neither the grounds of appeal nor argument fortifying it expressed how this finding by the court a quo tainted its judgment. I say so because of the well -established protocol which defines the appellate court`s right to interfere with the findings of a subordinate court`s findings generally- and superficially on findings of fact. [19] Further, this ground must be viewed against the dispute that faced the court a quo and key issued to be determined therein. The matter was not whether or not the demobilisation fee was paid. If anything, such was no longer due given the provisions of clause of the contract which waived such fee if the hire exceeded a period of 4 months. The grounds of appeal is not contesting the obligation this finding. [20] The court a quo had to determine the duration of the contract as well as either party`s compliance with it terms. The court found that the appellant had not exercised its right in terms of the contract to call the Lessor-respondent to order. Indeed the contract extracted warranties from the respondent on suitability of the equipment. All that the appellant needed to do was to exercise its rights in terms of clauses 8 and 10.2 on warranties and termination respectively. [21] The court a quo`s conclusions on the payment of the demobilisation fee is in essence, inconsequential to the ratio decidendi regarding breach by appellant for failure to exercise its right to terminate the contract for breach. This is the classic situation of the appellant having tried a quo and herein to use its shield as a sword to borrow the principle enunciated in Sumbureru v Chirunda 1992 (1) ZLR 240 (H). Ground number 2-failure to render a decision on the point of law raised on the absence of the US-local currency option. [22] The appellant`s argument is predicated on the established position that a court must resolve a point in contention. I refer to the authority cited by appellant of the point being Nhimbe Fresh Export (Pvt) Ltd v Prisma Packaging & Anor SC 07/24 where the Supreme Court held per GUVAVA JA as follows at [13] that; - “This Court has in numerous judgments stated its position in instances where a court fails to determine an issue that is before it. This Court, in PG Industries (Zimbabwe) Ltd v Bvekerwa & Ors 2016 (2) ZLR 14 (S) at 18 H stated the effect of a court’s failure to determine an issue placed before it for determination. GOWORA JA (as she then was) stated as follows: “The position is settled that where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings. Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.” (See also Gwaradzimba N.O. v CJ Petron & Co. (Pty) Ltd. 2016 (1) ZLR 28 (S) and Lungu & Ors v RBZ SC 26/21). [23] The appellant`s argument started and ended with this dictum. Respondent on the other hand, went further in its argument to deal with the veracity of the point that was raised by appellant. Respondent submitted that it was not tenable. It referred to clause of the agreement which provided for, in its view, payment of the contractual rentals in USD. THE PRINCIPLE IN PG INDUSTRIES (ZIMBABWE) LTD V BVEKERWA & ORS 2016 (2) ZLR 14 (S) [24] It is indeed an established position of our law, one reiterated by the Supreme Court, that failure to determine a matter placed before it constitutes a gross misdirection. (See also Fox & Carney P/L v Sibindi 1989 (2) ZLR 173 and N.O. v CJ Petron & Co. (Pty) Ltd. 2016 (1) ZLR 28 (S)). The corollary being the rule that a court must confine itself to matters pleaded before it rather than depart on what since been commonly referred to as “a frolic of its own” also observed in PG Industries as well as the oft-cited Shorai Mavis Nzara and Others v Cecilia Kashumba N. O. and Others SC 18-18. [25] PG Industries was followed in Nhimbe as well as Lungu & Ors v Reserve Bank of Zimbabwe SC 26-21. A quick preview of the respective matters will further accentuate the basis behind such principle. [26] Fox & Carney P/L v Sibindi 1989 (2) ZLR 173, the appellant had obtained leave to appeal against the grant of an application for rescission of judgment. The trial court`s failure to furnish written reasons for its decision invited the appellate` s court`s criticism. There was no way, the appellate court held, that the determination of the fundamental issues placed before the trial court could be ascertained. It was held page 179 that; - “It appears to me that in contested matters of this nature reasons for rescinding judgments are a compulsive necessity. The parties must know why they succeeded or failed. It is to be expected that they should want to know the reasons that led to their success or failure. After all, they had each sworn affidavits. They must be given reasons why their evidence was rejected. In my opinion it is proper for the appellant or the respondent to expect to be informed by the court why the judgment was rescinded or the application for rescission dismissed.” [27] Citing the South African decision of Cohn v Rand Rietfontein Estates Ltd 1939 TPD 319 where Grindley-Ferris J, referred to what Spencer Bower wrote in art 23 of Res Judicata, stated at 324: DUMBUTSHENA stated as follows at page 180; - “This passage makes it clear that when there is a trial there must be a decision which, when reference is made to it, relates to the question in issue. It is only just and fair that in a disputed and contested matter brought to the court by notice of motion an adjudication must be made by the court. The facts and the law upon which the decision is based can only be reflected in a written judgment.” [28] In PG Industries, the issue which the trial court had missed a fundamental matter which demanded resolution as a matter of primacy as observed by GOWORA J (as she then was) at page 7 that; - “Two issues arise immediately. The first is that the court failed to deal with and determine an issue that had been raised before it. The point in limine was to the effect that due to the irregularity in the citation of the respondent to the appeal, there was in fact no respondent before the court. The preliminary point raised was such that the court could not dispose of any issue in relation to the matter without making a finding on the point. The court could not simply wish it away as a non-issue. It had to make a determination. In my view, the failure to deal with an issue raised is an irregularity that can serve to vitiate the proceedings.” [29] The trial court in Lunga v RBZ had sidestepped the central issue regarding applicability of a Works Council agreement to the resolution of the dispute. It is useful to pay regard to the remarks of MAKONI JA on the reasons why a court must resolve questions placed before it. Citing with approval the case of Pillay v Krishna & Another 1946 AD 946 at 952-953, the Learned judge of appeal opined thus at pages 14-15; - “From these remarks, one can note that the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour. It invariably involves a court’s weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought. Therefore the question of whether or not a party has discharged the onus upon it cannot be determined by a court’s indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true. It is on this basis that I have concluded that the court a quo did not correctly apply the principle of onus of proof to the matter before it.” [30] Finally, in Nhimbe Fresh Exports, the Supreme Court found that the trial court had neglected to determine a matter that had not only been specifically pleaded, but constituted a key component of the relief sought. In that regard, it seems to me that a reading of the authorities suggests that the consideration of failure by a court to determine matters placed before it is inseparable from the materiality of the issues in question. [31] Herein, the question is; - should the court a quo`s decision be vacated on the basis that it omitted to comment on an afterthought that was not only unpleaded, but never pursued beyond mere mention on appeal? The appellant made no reference to the contract between the parties. This aspect, as per the decision of Breastplate Service (Pvt) Ltd v Cambria Africa PLC SC 66-20, forms the beginning of the inquiry into the applicable currency. [32] This question reflects the very reason why a court must determine matters contested before it. Resolution of matters so placed in contention entails answering questions on materiality of the matter concerns. I note however, that ground of appeal number 2 does not essentially attack the fundamental finding of the court a quo on liability. [33] Its success would merely relate to the currency option to be paid. According to Zambezi Gas (Pvt) Ltd v N.R. Barber Limited & Anor SC 3-20, where an exchange rate is fixed between a local and other currency, the issue of value is automatically reconciled. The Supreme Court held per MALABA CJ at page 12 that; - “The Court finds that the arguments by counsel are devoid of merit. Counsel would like the Court to believe that a conversion of a foreign currency denomination to a local currency denomination amounts to a lesser value in the local currency. This reasoning is wrong at law. There can be no parity to talk about once it is accepted that the RTGS dollar is a currency denomination with a set legal value. It is the legal tender used in Zimbabwe and as such carries a specific value. Once a conversion of the value of an asset or liability denominated in United States dollars is made to the value of RTGS dollars, the converted value remains the same, as the two different currency denominations both carry value.” [34] On that basis, I do not find that the misdirection by the court a quo to that extent irreversibly taints its proceedings. Especially given that the relief sought by appellant that; -“Plaintiff`s claim be and is hereby dismissed with costs on a higher scale”. My comment is that the court a quo pronounced itself substantively on the issue of liability, a matter not contested in the second ground of appeal. [35] In my view, the effect of its failure to render a ruling on the question of currency can be distinguished, under the present circumstances, from that discussed in the authorities cited above. As such, this ground of appeal fails. Grounds of appeal 3 to 6 [36] These grounds of appeal may be addressed all at once. Importantly, as noted above, the court`s task in the matter placed before it was to interpret the contract and determine the parties` rights and obligation. This duty was stated by the South African Constitutional Court as follows in University of Johannesburg v Auckland Park Theological Seminary & Anor [ 2021] ZACC 13 1, at [63]; - ‘It is perspicuous that when a court determines the nature of the parties’ rights and obligations in a contract, it is involved in an exercise of contractual interpretation” [37] The court a quo made two critical findings; - it interpreted the contract and found it a valid memorandum of the parties` rights and duties. This finding has not been impugned in that regard by the appellant. Secondly, the trial court concluded that appellant breached the contract between the parties. [38] In doing so, the court a quo referred to the contractual provisions and, on that basis, cannot be faulted. The respondent made a number of warranties on the suitability of the machine. If these warranties were breached then the simplest thing for respondent to do was to invoke its rights under clause of the contract. It did not do so and the court a quo observed as such. [39] For that reason, the judgment of the court a quo cannot be interfered with for finding that the appellant neither terminated the contract nor took steps to enforce its rights. As noted, it was a matter of the onus placed upon the appellant to prove breach on the basis of defective equipment. No counter claim was filed herein and the defence cannot per Sumbureru v Chirunda2, constitute a spear. [40] In any event, the position regarding (a) the appellate court interfering with the factual of trial court and (b) courts generally interfering with parties` contracts is well-settled in both aspects. The first principle was articulated as follows in decisions such as Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) and Sable Chemical Industries v David Peter Easterbrook SC 18- 10, and Barros and Anor v Chimphonda 1999 (1) ZLR 58 (S) where the Supreme Court said at 63 that: “It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant some consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always has the materials for so doing” [41] On contractual freedom, the Supreme Court held as follows in Grandwell Holdings (Pvt) Ltd v ZMDC & 2 Ors SC 5-20 at page 6; - “Generally the policy of the law is to give effect to the contracts of the parties because it is salutary in our jurisdiction to uphold the freedom of the parties to contract lawfully. This notion is embodied in the principle of sanctity of contract. Once the parties have contracted, it is not open to the courts to rewrite the contract they have entered into. In addition, the court will not excuse any of the parties from the consequences of the contract that they freely and voluntarily entered into with their eyes wide open. This is so even if the consequences are onerous or oppressive. See Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S) at 403 C-D.” Ground of appeal 7 [42] The court a quo`s findings on the validity of the contract and breach of its terms by appellant effectively dispose of ground of appeal number 7. This is because such finding rendered it unnecessary for the court a quo to then rule on the alternative defence regarding the unfairness of the contract. I set out paragraph 11.1 hereunder; - “11.1 This is denied. There is no basis for this claim in the agreement. Alternatively, the clauses that entrenched the clauses in the agreement were in violation on the Consumer Protection Act.” Grounds of appeal number 9- no basis was given for the award of costs at a higher scale. [43] This ground was conceded and as such, it must succeed. The effect however is to require the court a quo to remedy the defect. Costs are a matter wholly within the discretion of the court. And court generally follows the successful party but punitive costs should be justified as observed by GWAUNZA DCJ in Dongo v Naik & 5 Ors SC 52-20 at [19] that; - “It is settled law that costs are at the discretion of the court. The award can only be set aside where the discretion was not exercised judiciously. It is also settled that costs on a higher scale are granted in exceptional circumstances. The grounds upon which the court would be justified to make an award for costs on a legal practitioner and client scale include dishonest or malicious conduct, and vexatious, reckless or frivolous proceedings by and on the part of the litigant concerned.3 [44] On the possible course the appellate court can follow in such circumstances, the Supreme Court held and proceeded as follows in Nyamande vs. Mahachi and Ors SC-45-23; - [30] With regards to costs granted a quo, it is apparent that the court granted costs on a legal practitioner and client scale without giving the reasons for the order. The court fell into error in this regard. It is trite that while the award of costs is in the discretion of the court, a court that awards costs on a legal practitioner and client scale must establish a legal basis for doing so. These are punitive costs and the court must justify why the party so saddled with this cost has raised the ire of the court. Whilst the award may have been justified, unfortunately the reasons for this decision remained embedded in the mind of the judge. In the absence of such reasons, the order of costs made by the court a quo cannot stand and all that can be done is to substitute the award to an award on the ordinary scale. In this regard the appeal will succeed only to the extent that the order for costs on a higher scale is set aside. [45] We will thus adopt this pragmatic approach and interfere with the court a quo `s order of costs to convert the punitive order into an award on the ordinary scale. SOME COMMENTS ON THE ORDER OF THE COURT A QUO AND APPEAL RECORD [46] I comment, for further guidance of the trial court and litigants, on the order of the court and the consolidated bundle placed before us. Firstly, slight as it may seem, the anomaly in the preamble and paragraph 1 of the order4 invites the below reminder which I sounded in Christine Dadirai Jijita v Zimbabwe Women`s Empowerment Bank HH 515-24 in the following terms; - “[4] ……...A court order must, in all instances, be framed with clarity and specificity. That is a trite position at law. GOWORA JA (as she then was), expressed this point as follows in Streamsleigh Invstms (Pvt) Ltd v Autoband Invstms (Pvt) Ltd 2014 (1) ZLR 736 (S) at page 749 A-B; - ‘An order must be framed in such a manner as to leave no doubt in the minds of any party to the dispute as to its meaning, effect and application. It should not be vague or ambiguous. It must be clear and precise.” [5] The need for clarity and certainty in a court order is self-evident. An order of court must prescribe specific directions to parties in a suit just as it must announce to the whole world the exact outcome of a court`s resolution of a controversy. Beyond that, an order must render itself indisputably lucid for purposes of execution.” [47] Secondly, the record of proceedings a quo and bundle placed before us breached the provisions of rule 4 of Order 31 of the Magistrates Court (Civil) Rules SI 11 of 2019 which prescribes as follows; - 4. Record of trial (1) The clerk of the court shall, as soon as reasonably possible after the date of noting an appeal; lodge with the Registrar of the High Court the original record together with four typed copies, which copies shall be certified as true and correct copies. (2) The copies of the record shall be— (a) clearly typed with double or one and a half linear spacing in black record ink and on one side of the paper only; (b) paginated from the first to the last page, whether the pages contain evidence or not, and at the top of each page containing evidence the name of the witness giving such evidence shall appear. (3) Every tenth line on each page of the copies of the record shall be numbered in the left-hand margin. (4) The evidence in the original record shall be paginated from the first to the last page. (5) All records shall contain a complete and correct index of the evidence and of all documents and exhibits in the case, the nature of the exhibits being briefly stated in the index. (6) All records shall be securely bound in stout covers disclosing— (a) the names of the parties; and (b) the court appealed from; and (c) the names of the legal practitioners of the parties. (7) Bulky records shall be divided into separate conveniently sized volumes numbered consecutively. (8) Merely formal documents shall be omitted from the records, and no document shall be included more than once. (9) Subject to sub rule (10), the clerk of the court, after consultation with the magistrate, shall omit from the record— (a) all documents which are not relevant to the appeal; and (b) the evidence of any witness, or any part of such evidence, which is not relevant to the appeal. (10) The magistrate may, on application by either party, order the clerk of court to include any document or evidence in the record. [48] There was duplicitous presentation of documents. The contract founding the dispute-as an example- appears no less than four times. Receipts, correspondence, payment schedules and other documents were also duplicated. Some pleadings were juxtaposed in pagination sequence. [49] Further, the consolidated appeal bundle contained a “dead index” which rendered the bulk of the bundle unnavigable. The Registrar is encouraged for future purposes, to engage parties and assist them compile bundles that comply with IECMS`s capabilities and r 48. This r 48 dovetails into r 4 of Order 32 on the need to streamline bundles placed before the court. See also FBC Holdings Limited v Zimbabwe Nantong International (Pvt) Ltd & Anor HH 369-24 and CABS v Magodo HH 34-22.) [50] The entire purpose of raising this issue is to accentuate the need to capitalise on the ease and convenience intended and envisaged by the IECMS system. Further, a well-structured bundle enables the court and parties to navigate the papers with ease and convenience. This in turn, supports the preparation, hearing and disposal of disputes. It also sustains the integrity required in the records of court proceedings. After all, our courts are courts of record. DISPOSITION [51] The appeal thus succeeds in part. On costs, we note that the respondent has substantially succeeded in resisting the appeal. It did not oppose the sole ground of appeal that has been allowed. The court a quo`s error did not emanate from the respondent`s papers. In that respect, we see no reason why the costs should not follow the successful party. [52] There is nothing however, that has been placed before the court to justify the punitive order of costs sought. It being noted that such costs must, according to established practice and authorities5, be granted in extraordinary circumstances. It is therefore ordered that; - The appeal be and is hereby allowed in part with the appellant to bear the costs on an ordinary scale. Paragraph 3 of the judgment of the court a quo is set aside and substituted with the following: “3. The plaintiff be and is hereby ordered to pay the plaintiff`s costs on an ordinary scale.” CHIRAWU-MUGOMBA J ____________I agree Moyo and Jera Legal Practitioners -appellant`s legal practitioners. Gutsa and Partners-respondent`s legal practitioners [CHILIMBE J___31/03/25] 1 Cited with approval in Dairibord Zimbabwe (Pvt) Ltd v Chivandire HH 90-23. 2 Sumbureru v Chirunda, 1992 (1) ZLR 240 (H) which was stated as follows by SMITH J at 242 G-H; - “I agree with Mr. Chikumbirike` s submissions that in notice of motion proceedings the respondent should, according to the rules of court, in the opposing affidavit, confine his opposition to a defence. He should not, in the opposing affidavit, launch an attack on the applicant and make a claim in reconvention.” 3 Mahembe v Matombo 2003 (1) ZLR 148 (H) where the court made reference to Rubin L Law of Costs in South Africa Juta & Co (1949) 4 The statement “It is ordered that defendant ordered...” is incongruent. Further, the order does not stipulate who exactly is being ordered to pay and such matter ought not be left to presumption. 5 Muduma v Municipality of Chinhoyi and Samuriwo 1986(1) ZLR 12 (HC Mutunhu v Crest Poultry Group (Pvt) Ltd HH 399-17, Dongo v Naik & 5 Ors SC 52-20, 16 HH 226-25 HCHC 240/24 16 HH 226-25 HCHC 240/24 GROLEE MINING (PVT) LTD Versus EVERGREEN CONSTRUCTION (PVT) LTD HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION CHIRAWU-MUGOMBA & CHILIMBE JJ HARARE 17 October 2024 and 31 March 2025 Commercial appeal E. Jera for appellant S. Gutsa for respondent CHILIMBE J BACKGROUND [1] This is an appeal against the entire judgment of the Magistrates Court sitting at Harare on 22 March 2024 which ordered as follows; - “In the result it is ordered that, Defendant ordered to pay the sum of US$45, 508. Interest thereon at the prescribed rate calculated from the date of summons to the date of full and final payment. Payment of costs on a legal practitioner and client scale.” PROCEEDINGS IN THE COURT A QUO [2] I will comment briefly on the above order before concluding this judgment. Turning to appeal, respondent, instituted proceedings in the court a quo claiming the sum of US$45,508 as monies by appellant for hire of construction equipment, namely a Hyundai 305 LC excavator, at the rate of US$10,500 per month. [3] In the alternative, respondent prayed for an order of damages for loss of income arising from the alleged unlawful detention of its equipment by defendant for the period 13 June 2020 to 19 October 2020. [4] The claim and its alternative were based on an alleged breach by appellant of a written agreement titled “Memorandum of Agreement for the Lease of Equipment” executed by the parties on 7 May 2020.Essentially therefore, the court a quo was required to determine the parties` contractual rights and obligations in resolving the dispute before it. In that regard, the present appeal must be approached from that perspective. [5] The appellant`s defence a quo was that the contract provided for rentals based on usage rather than the flat monthly fee of US$10,500. raised protestations of breach on the part of respondent as lessor of equipment including break-down of equipment. It further contested respondent`s interpretation of the contractual provisions on duration, mobilisation and demobilisation of equipment fees as well as termination of contract formalities. [6] Finally, respondent contended that the contract violated (an unstated provision in) the Consumer Protection Act [ Chapter 14:44]. The matter was referred to trial on six issues that crystallised into liability and quantum. Respondent bore the onus to prove the appellant`s liability regarding arrear rentals, the quantum thereof, and the alternative claimed as damages. [7] The appellant carried the burden of proof on the alleged non-fitness for purpose of the equipment, the termination of the contract as well as application of the Consumer Protection Act. En route to its judgment, the court a quo was presented with a request and delivery of further particulars, a replication commentary on the facts, a further ventilation of the law and facts in an application for absolution from the instance, (which resulted in a judgment dismissing the application) and finally closing submissions from both sides. [8] The judgment followed a fully-fledged trial in which plaintiff called one witness; - its chief executive officer Mrs Verity Bosha. Defendant drew on the testimony of two witnesses; - its project finance manager Talent Madzima and the site manager Mr Hyde Chatyoka. THE POINT OF LAW RAISED IN DEFENDANT A QUO`S CLOSING SUBMISSIONS: THE PRINCIPLE IN GOLD DRIVEN INVESTMENTS (PVT) LTD v TEL-ONE (PVT) LTD & ANOR SC 9-13 [9] Appellant raised, as a point of law, the argument that plaintiff a quo`s claim was incompetent. It being couched in United States Dollars (USD) without a conversion into local currency. Appellant cited a number of authorities and legislation including Nyahuma`s Law Golden Stairs Chambers v Joseph Makamba Busha HH 304-21, Manica Zimbabwe Limited v Windmill (Pvt) Ltd HH 705-20, and (an unnamed) Statutory Instrument 118A of 2022. [10] The respondent dismissed this point in supplementary written submissions filed a quo. It relied in that respect, on s 2 of the Exchange Control Act [ Chapter 22:05] as read with the Presidential Powers (Temporary Measures) (Amendment of the Exchange Control Regulations) SI 118A of 2022.This point founds ground of appeal number 2. [11] Suffice to say, there was a “currency clause” in the contract which provided as follows; - “5.6 – The above rental fees and equipment withdrawal fees are calculated in US dollars. If the Zimbabwe monetary policy changes at any time the payment method shall be revised and an addendum to the contract be signed by both parties.” FINDINGS OF THE COURT A QUO [ 12] In her judgment, the trial magistrate analysed the oral and documentary evidence placed before her as against the issues to be determined. She made findings on the terms of the contract, the parties` rights and duties as well as performance and breach. It was the trial court`s conclusion that the machine was leased at the fixed or minimum rate of $10, 920 or 156 hours per month. Any extra hours translated to an additional cost for the hirer defendant. I set out the relevant terms below; - “Clause 5 Rent payment method and working hours 5.1 The monthly rent payable for the excavator is $10, 920. [ full stop] The monthly working time is 156 hours which translate (sic) the amount to $70 per hour. 5.2 In the event that the hours exceed 156 hours for the month, the lessee shall pay for the extra hours at the agreed hourly rate.” [13] The court observed in its judgment, that timesheets signed by both parties logged the machine`s operating and down-time hours. As such, the said hours were not in dispute. This was a critical finding. It related to a key aspect of the defence that the machine was not fit for purpose. Such defence alleged breach on the part of respondent. It also attacked the claim for the monthly rate of US$10, 950. The relevant clause went as follows; - “8. Warranties by the Lessor The Lessor warrants that 8.1 The lease equipment is in a state of good repair 8.2……. 8.3……. 8.4 In the event of the breakdown of its equipment, the Lessor shall immediately rectify such breakdown be (sic) repairing or replacing the equipment within 48 hours of the breakdown and, 8.5 No rentals shall be charged for the period in which the Lessee was unable to operate as a result of the breakdown on the equipment.” [14] Against this main finding, the court a quo then found that the excavator was at appellant`s site from 11 May 2020 to 19 October 2020. The appellant, according to the court`s judgment only paid 2 months` rentals for May and June 2020. Respondent received neither payment from appellant, nor income for the machine for the period 13 June 2020 to 19 October 2020.The latter being the demobilisation date of the machine. Importantly, the court a quo ruled that the parties were still bound by the terms of the contract entitling respondent to its minimum US$10, 950 per month. [15] This conclusion derived from the finding that the appellant had an obligation to terminate the contract but deigned to do so. I refer to the judgment of the court a quo on demobilisation fees; - “Clearly, plaintiff is entitled to the arrear rentals as per the claim. Defendant breached the contract by not paying rent for the claimed period when it had not terminated the said contract as agreed or demobilised the machine back to the contract as agreed in the contract.” [16] The relevant termination clause provided as follows; - “10.2 It is expected that the lease will run for the first two months and shall only be terminated on the happening of the following; a) By mutual termination of both parties where it becomes evident that the intended business for which the equipment is leased cannot be proceeded with. b) Breach of the agreement by any of the parties which is not remedies (sic) within seven ordinary days of dispatch of written notice to remedy such breach. c) Any of the parties committing an act of insolvency or is placed under a provisional or final winding up or judicial management or similar process) or the other party makes an assignment for the benefit of creditors, or fails to satisfy or take steps to have set aside any judgment taken against it within 7 (seven) days after such judgment has come to its notice.” THE GROUNDS OF APPEAL [17] The trial court dismissed the alternative claim for damages. The court a quo resulted in the present appeal whose grounds I set out below; - “Grounds of appeal The court quo erred in making a finding that the applicant paid for demobilisation fees on the 19th of October 2020 without any evidence to support that finding. The Court quo erred in failing to make a determination on the legality of granting a claim solely in United States dollars without an alternative option to pay in Zimbabwe dollars at the prevailing rate despite that the legal issue has been raised and argued before it. The court a quo and grossly misdirected itself in finding that the Appellant was supposed to pay rent for the period 13 June 2020 to 19 October 2020 notwithstanding clear evidence that the machine was dysfunctional and could not be used. The court a quo erred in failing to find, as it ought to have done, that the lease between the parties terminated on the 12th of June 2020. The court a quo erred in failing to find that by failing to repair the machine from 13 June 2020, after it had broken down, the Respondent repudiated the contract between the parties. The court a quo erred findings that the appellant was contractually bound to demobilise the machine notwithstanding clear evidence that the machine itself had become dysfunctional. The Court erred and grossly misdirected itself in failing to make a determination on the unfairness of the clause in the agreement between Appellant and Respondent which stated that the agreement could not be terminated in the first two months. The court erred and grossly misdirected itself in finding, contrary to the evidence presented, that it was common cause that Defendant demobilised the machine on 19 October 2020. The court a quo erred and grossly misdirected itself in exercising the discretion to grant costs on a legal practitioner to client scale against the respondent when such costs were not justified. ARGUMENTS BEFORE THIS COURT Grounds number 1 and 8 - no evidence that appellant paid demobilisation fees. [18] Mr Jera argued that there was no evidence that such fees were ever paid. For that reason, he argued that the judgment of the court a quo ought to be vacated. Neither the grounds of appeal nor argument fortifying it expressed how this finding by the court a quo tainted its judgment. I say so because of the well -established protocol which defines the appellate court`s right to interfere with the findings of a subordinate court`s findings generally- and superficially on findings of fact. [19] Further, this ground must be viewed against the dispute that faced the court a quo and key issued to be determined therein. The matter was not whether or not the demobilisation fee was paid. If anything, such was no longer due given the provisions of clause of the contract which waived such fee if the hire exceeded a period of 4 months. The grounds of appeal is not contesting the obligation this finding. [20] The court a quo had to determine the duration of the contract as well as either party`s compliance with it terms. The court found that the appellant had not exercised its right in terms of the contract to call the Lessor-respondent to order. Indeed the contract extracted warranties from the respondent on suitability of the equipment. All that the appellant needed to do was to exercise its rights in terms of clauses 8 and 10.2 on warranties and termination respectively. [21] The court a quo`s conclusions on the payment of the demobilisation fee is in essence, inconsequential to the ratio decidendi regarding breach by appellant for failure to exercise its right to terminate the contract for breach. This is the classic situation of the appellant having tried a quo and herein to use its shield as a sword to borrow the principle enunciated in Sumbureru v Chirunda 1992 (1) ZLR 240 (H). Ground number 2-failure to render a decision on the point of law raised on the absence of the US-local currency option. [22] The appellant`s argument is predicated on the established position that a court must resolve a point in contention. I refer to the authority cited by appellant of the point being Nhimbe Fresh Export (Pvt) Ltd v Prisma Packaging & Anor SC 07/24 where the Supreme Court held per GUVAVA JA as follows at [13] that; - “This Court has in numerous judgments stated its position in instances where a court fails to determine an issue that is before it. This Court, in PG Industries (Zimbabwe) Ltd v Bvekerwa & Ors 2016 (2) ZLR 14 (S) at 18 H stated the effect of a court’s failure to determine an issue placed before it for determination. GOWORA JA (as she then was) stated as follows: “The position is settled that where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings. Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.” (See also Gwaradzimba N.O. v CJ Petron & Co. (Pty) Ltd. 2016 (1) ZLR 28 (S) and Lungu & Ors v RBZ SC 26/21). [23] The appellant`s argument started and ended with this dictum. Respondent on the other hand, went further in its argument to deal with the veracity of the point that was raised by appellant. Respondent submitted that it was not tenable. It referred to clause of the agreement which provided for, in its view, payment of the contractual rentals in USD. THE PRINCIPLE IN PG INDUSTRIES (ZIMBABWE) LTD V BVEKERWA & ORS 2016 (2) ZLR 14 (S) [24] It is indeed an established position of our law, one reiterated by the Supreme Court, that failure to determine a matter placed before it constitutes a gross misdirection. (See also Fox & Carney P/L v Sibindi 1989 (2) ZLR 173 and N.O. v CJ Petron & Co. (Pty) Ltd. 2016 (1) ZLR 28 (S)). The corollary being the rule that a court must confine itself to matters pleaded before it rather than depart on what since been commonly referred to as “a frolic of its own” also observed in PG Industries as well as the oft-cited Shorai Mavis Nzara and Others v Cecilia Kashumba N. O. and Others SC 18-18. [25] PG Industries was followed in Nhimbe as well as Lungu & Ors v Reserve Bank of Zimbabwe SC 26-21. A quick preview of the respective matters will further accentuate the basis behind such principle. [26] Fox & Carney P/L v Sibindi 1989 (2) ZLR 173, the appellant had obtained leave to appeal against the grant of an application for rescission of judgment. The trial court`s failure to furnish written reasons for its decision invited the appellate` s court`s criticism. There was no way, the appellate court held, that the determination of the fundamental issues placed before the trial court could be ascertained. It was held page 179 that; - “It appears to me that in contested matters of this nature reasons for rescinding judgments are a compulsive necessity. The parties must know why they succeeded or failed. It is to be expected that they should want to know the reasons that led to their success or failure. After all, they had each sworn affidavits. They must be given reasons why their evidence was rejected. In my opinion it is proper for the appellant or the respondent to expect to be informed by the court why the judgment was rescinded or the application for rescission dismissed.” [27] Citing the South African decision of Cohn v Rand Rietfontein Estates Ltd 1939 TPD 319 where Grindley-Ferris J, referred to what Spencer Bower wrote in art 23 of Res Judicata, stated at 324: DUMBUTSHENA stated as follows at page 180; - “This passage makes it clear that when there is a trial there must be a decision which, when reference is made to it, relates to the question in issue. It is only just and fair that in a disputed and contested matter brought to the court by notice of motion an adjudication must be made by the court. The facts and the law upon which the decision is based can only be reflected in a written judgment.” [28] In PG Industries, the issue which the trial court had missed a fundamental matter which demanded resolution as a matter of primacy as observed by GOWORA J (as she then was) at page 7 that; - “Two issues arise immediately. The first is that the court failed to deal with and determine an issue that had been raised before it. The point in limine was to the effect that due to the irregularity in the citation of the respondent to the appeal, there was in fact no respondent before the court. The preliminary point raised was such that the court could not dispose of any issue in relation to the matter without making a finding on the point. The court could not simply wish it away as a non-issue. It had to make a determination. In my view, the failure to deal with an issue raised is an irregularity that can serve to vitiate the proceedings.” [29] The trial court in Lunga v RBZ had sidestepped the central issue regarding applicability of a Works Council agreement to the resolution of the dispute. It is useful to pay regard to the remarks of MAKONI JA on the reasons why a court must resolve questions placed before it. Citing with approval the case of Pillay v Krishna & Another 1946 AD 946 at 952-953, the Learned judge of appeal opined thus at pages 14-15; - “From these remarks, one can note that the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour. It invariably involves a court’s weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought. Therefore the question of whether or not a party has discharged the onus upon it cannot be determined by a court’s indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true. It is on this basis that I have concluded that the court a quo did not correctly apply the principle of onus of proof to the matter before it.” [30] Finally, in Nhimbe Fresh Exports, the Supreme Court found that the trial court had neglected to determine a matter that had not only been specifically pleaded, but constituted a key component of the relief sought. In that regard, it seems to me that a reading of the authorities suggests that the consideration of failure by a court to determine matters placed before it is inseparable from the materiality of the issues in question. [31] Herein, the question is; - should the court a quo`s decision be vacated on the basis that it omitted to comment on an afterthought that was not only unpleaded, but never pursued beyond mere mention on appeal? The appellant made no reference to the contract between the parties. This aspect, as per the decision of Breastplate Service (Pvt) Ltd v Cambria Africa PLC SC 66-20, forms the beginning of the inquiry into the applicable currency. [32] This question reflects the very reason why a court must determine matters contested before it. Resolution of matters so placed in contention entails answering questions on materiality of the matter concerns. I note however, that ground of appeal number 2 does not essentially attack the fundamental finding of the court a quo on liability. [33] Its success would merely relate to the currency option to be paid. According to Zambezi Gas (Pvt) Ltd v N.R. Barber Limited & Anor SC 3-20, where an exchange rate is fixed between a local and other currency, the issue of value is automatically reconciled. The Supreme Court held per MALABA CJ at page 12 that; - “The Court finds that the arguments by counsel are devoid of merit. Counsel would like the Court to believe that a conversion of a foreign currency denomination to a local currency denomination amounts to a lesser value in the local currency. This reasoning is wrong at law. There can be no parity to talk about once it is accepted that the RTGS dollar is a currency denomination with a set legal value. It is the legal tender used in Zimbabwe and as such carries a specific value. Once a conversion of the value of an asset or liability denominated in United States dollars is made to the value of RTGS dollars, the converted value remains the same, as the two different currency denominations both carry value.” [34] On that basis, I do not find that the misdirection by the court a quo to that extent irreversibly taints its proceedings. Especially given that the relief sought by appellant that; -“Plaintiff`s claim be and is hereby dismissed with costs on a higher scale”. My comment is that the court a quo pronounced itself substantively on the issue of liability, a matter not contested in the second ground of appeal. [35] In my view, the effect of its failure to render a ruling on the question of currency can be distinguished, under the present circumstances, from that discussed in the authorities cited above. As such, this ground of appeal fails. Grounds of appeal 3 to 6 [36] These grounds of appeal may be addressed all at once. Importantly, as noted above, the court`s task in the matter placed before it was to interpret the contract and determine the parties` rights and obligation. This duty was stated by the South African Constitutional Court as follows in University of Johannesburg v Auckland Park Theological Seminary & Anor [ 2021] ZACC 13 1, at [63]; - ‘It is perspicuous that when a court determines the nature of the parties’ rights and obligations in a contract, it is involved in an exercise of contractual interpretation” [37] The court a quo made two critical findings; - it interpreted the contract and found it a valid memorandum of the parties` rights and duties. This finding has not been impugned in that regard by the appellant. Secondly, the trial court concluded that appellant breached the contract between the parties. [38] In doing so, the court a quo referred to the contractual provisions and, on that basis, cannot be faulted. The respondent made a number of warranties on the suitability of the machine. If these warranties were breached then the simplest thing for respondent to do was to invoke its rights under clause of the contract. It did not do so and the court a quo observed as such. [39] For that reason, the judgment of the court a quo cannot be interfered with for finding that the appellant neither terminated the contract nor took steps to enforce its rights. As noted, it was a matter of the onus placed upon the appellant to prove breach on the basis of defective equipment. No counter claim was filed herein and the defence cannot per Sumbureru v Chirunda2, constitute a spear. [40] In any event, the position regarding (a) the appellate court interfering with the factual of trial court and (b) courts generally interfering with parties` contracts is well-settled in both aspects. The first principle was articulated as follows in decisions such as Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) and Sable Chemical Industries v David Peter Easterbrook SC 18- 10, and Barros and Anor v Chimphonda 1999 (1) ZLR 58 (S) where the Supreme Court said at 63 that: “It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant some consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always has the materials for so doing” [41] On contractual freedom, the Supreme Court held as follows in Grandwell Holdings (Pvt) Ltd v ZMDC & 2 Ors SC 5-20 at page 6; - “Generally the policy of the law is to give effect to the contracts of the parties because it is salutary in our jurisdiction to uphold the freedom of the parties to contract lawfully. This notion is embodied in the principle of sanctity of contract. Once the parties have contracted, it is not open to the courts to rewrite the contract they have entered into. In addition, the court will not excuse any of the parties from the consequences of the contract that they freely and voluntarily entered into with their eyes wide open. This is so even if the consequences are onerous or oppressive. See Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S) at 403 C-D.” Ground of appeal 7 [42] The court a quo`s findings on the validity of the contract and breach of its terms by appellant effectively dispose of ground of appeal number 7. This is because such finding rendered it unnecessary for the court a quo to then rule on the alternative defence regarding the unfairness of the contract. I set out paragraph 11.1 hereunder; - “11.1 This is denied. There is no basis for this claim in the agreement. Alternatively, the clauses that entrenched the clauses in the agreement were in violation on the Consumer Protection Act.” Grounds of appeal number 9- no basis was given for the award of costs at a higher scale. [43] This ground was conceded and as such, it must succeed. The effect however is to require the court a quo to remedy the defect. Costs are a matter wholly within the discretion of the court. And court generally follows the successful party but punitive costs should be justified as observed by GWAUNZA DCJ in Dongo v Naik & 5 Ors SC 52-20 at [19] that; - “It is settled law that costs are at the discretion of the court. The award can only be set aside where the discretion was not exercised judiciously. It is also settled that costs on a higher scale are granted in exceptional circumstances. The grounds upon which the court would be justified to make an award for costs on a legal practitioner and client scale include dishonest or malicious conduct, and vexatious, reckless or frivolous proceedings by and on the part of the litigant concerned.3 [44] On the possible course the appellate court can follow in such circumstances, the Supreme Court held and proceeded as follows in Nyamande vs. Mahachi and Ors SC-45-23; - [30] With regards to costs granted a quo, it is apparent that the court granted costs on a legal practitioner and client scale without giving the reasons for the order. The court fell into error in this regard. It is trite that while the award of costs is in the discretion of the court, a court that awards costs on a legal practitioner and client scale must establish a legal basis for doing so. These are punitive costs and the court must justify why the party so saddled with this cost has raised the ire of the court. Whilst the award may have been justified, unfortunately the reasons for this decision remained embedded in the mind of the judge. In the absence of such reasons, the order of costs made by the court a quo cannot stand and all that can be done is to substitute the award to an award on the ordinary scale. In this regard the appeal will succeed only to the extent that the order for costs on a higher scale is set aside. [45] We will thus adopt this pragmatic approach and interfere with the court a quo `s order of costs to convert the punitive order into an award on the ordinary scale. SOME COMMENTS ON THE ORDER OF THE COURT A QUO AND APPEAL RECORD [46] I comment, for further guidance of the trial court and litigants, on the order of the court and the consolidated bundle placed before us. Firstly, slight as it may seem, the anomaly in the preamble and paragraph 1 of the order4 invites the below reminder which I sounded in Christine Dadirai Jijita v Zimbabwe Women`s Empowerment Bank HH 515-24 in the following terms; - “[4] ……...A court order must, in all instances, be framed with clarity and specificity. That is a trite position at law. GOWORA JA (as she then was), expressed this point as follows in Streamsleigh Invstms (Pvt) Ltd v Autoband Invstms (Pvt) Ltd 2014 (1) ZLR 736 (S) at page 749 A-B; - ‘An order must be framed in such a manner as to leave no doubt in the minds of any party to the dispute as to its meaning, effect and application. It should not be vague or ambiguous. It must be clear and precise.” [5] The need for clarity and certainty in a court order is self-evident. An order of court must prescribe specific directions to parties in a suit just as it must announce to the whole world the exact outcome of a court`s resolution of a controversy. Beyond that, an order must render itself indisputably lucid for purposes of execution.” [47] Secondly, the record of proceedings a quo and bundle placed before us breached the provisions of rule 4 of Order 31 of the Magistrates Court (Civil) Rules SI 11 of 2019 which prescribes as follows; - 4. Record of trial (1) The clerk of the court shall, as soon as reasonably possible after the date of noting an appeal; lodge with the Registrar of the High Court the original record together with four typed copies, which copies shall be certified as true and correct copies. (2) The copies of the record shall be— (a) clearly typed with double or one and a half linear spacing in black record ink and on one side of the paper only; (b) paginated from the first to the last page, whether the pages contain evidence or not, and at the top of each page containing evidence the name of the witness giving such evidence shall appear. (3) Every tenth line on each page of the copies of the record shall be numbered in the left-hand margin. (4) The evidence in the original record shall be paginated from the first to the last page. (5) All records shall contain a complete and correct index of the evidence and of all documents and exhibits in the case, the nature of the exhibits being briefly stated in the index. (6) All records shall be securely bound in stout covers disclosing— (a) the names of the parties; and (b) the court appealed from; and (c) the names of the legal practitioners of the parties. (7) Bulky records shall be divided into separate conveniently sized volumes numbered consecutively. (8) Merely formal documents shall be omitted from the records, and no document shall be included more than once. (9) Subject to sub rule (10), the clerk of the court, after consultation with the magistrate, shall omit from the record— (a) all documents which are not relevant to the appeal; and (b) the evidence of any witness, or any part of such evidence, which is not relevant to the appeal. (10) The magistrate may, on application by either party, order the clerk of court to include any document or evidence in the record. [48] There was duplicitous presentation of documents. The contract founding the dispute-as an example- appears no less than four times. Receipts, correspondence, payment schedules and other documents were also duplicated. Some pleadings were juxtaposed in pagination sequence. [49] Further, the consolidated appeal bundle contained a “dead index” which rendered the bulk of the bundle unnavigable. The Registrar is encouraged for future purposes, to engage parties and assist them compile bundles that comply with IECMS`s capabilities and r 48. This r 48 dovetails into r 4 of Order 32 on the need to streamline bundles placed before the court. See also FBC Holdings Limited v Zimbabwe Nantong International (Pvt) Ltd & Anor HH 369-24 and CABS v Magodo HH 34-22.) [50] The entire purpose of raising this issue is to accentuate the need to capitalise on the ease and convenience intended and envisaged by the IECMS system. Further, a well-structured bundle enables the court and parties to navigate the papers with ease and convenience. This in turn, supports the preparation, hearing and disposal of disputes. It also sustains the integrity required in the records of court proceedings. After all, our courts are courts of record. DISPOSITION [51] The appeal thus succeeds in part. On costs, we note that the respondent has substantially succeeded in resisting the appeal. It did not oppose the sole ground of appeal that has been allowed. The court a quo`s error did not emanate from the respondent`s papers. In that respect, we see no reason why the costs should not follow the successful party. [52] There is nothing however, that has been placed before the court to justify the punitive order of costs sought. It being noted that such costs must, according to established practice and authorities5, be granted in extraordinary circumstances. It is therefore ordered that; - The appeal be and is hereby allowed in part with the appellant to bear the costs on an ordinary scale. Paragraph 3 of the judgment of the court a quo is set aside and substituted with the following: “3. The plaintiff be and is hereby ordered to pay the plaintiff`s costs on an ordinary scale.” CHIRAWU-MUGOMBA J ____________I agree Moyo and Jera Legal Practitioners -appellant`s legal practitioners. Gutsa and Partners-respondent`s legal practitioners [CHILIMBE J___31/03/25] 1 Cited with approval in Dairibord Zimbabwe (Pvt) Ltd v Chivandire HH 90-23. 1 Cited with approval in Dairibord Zimbabwe (Pvt) Ltd v Chivandire HH 90-23. 2 Sumbureru v Chirunda, 1992 (1) ZLR 240 (H) which was stated as follows by SMITH J at 242 G-H; - “I agree with Mr. Chikumbirike` s submissions that in notice of motion proceedings the respondent should, according to the rules of court, in the opposing affidavit, confine his opposition to a defence. He should not, in the opposing affidavit, launch an attack on the applicant and make a claim in reconvention.” 2 Sumbureru v Chirunda, 1992 (1) ZLR 240 (H) which was stated as follows by SMITH J at 242 G-H; - “I agree with Mr. Chikumbirike` s submissions that in notice of motion proceedings the respondent should, according to the rules of court, in the opposing affidavit, confine his opposition to a defence. He should not, in the opposing affidavit, launch an attack on the applicant and make a claim in reconvention.” 3 Mahembe v Matombo 2003 (1) ZLR 148 (H) where the court made reference to Rubin L Law of Costs in South Africa Juta & Co (1949) 3 Mahembe v Matombo 2003 (1) ZLR 148 (H) where the court made reference to Rubin L Law of Costs in South Africa Juta & Co (1949) 4 The statement “It is ordered that defendant ordered...” is incongruent. Further, the order does not stipulate who exactly is being ordered to pay and such matter ought not be left to presumption. 4 The statement “It is ordered that defendant ordered...” is incongruent. Further, the order does not stipulate who exactly is being ordered to pay and such matter ought not be left to presumption. 5 Muduma v Municipality of Chinhoyi and Samuriwo 1986(1) ZLR 12 (HC Mutunhu v Crest Poultry Group (Pvt) Ltd HH 399-17, Dongo v Naik & 5 Ors SC 52-20, 5 Muduma v Municipality of Chinhoyi and Samuriwo 1986(1) ZLR 12 (HC Mutunhu v Crest Poultry Group (Pvt) Ltd HH 399-17, Dongo v Naik & 5 Ors SC 52-20,