Oliver Mutyambizi and Midroc Holdings (Pvt) Ltd v Stanley Kasukuwere and Batsirayi Martha Bakare

### Preamble
1
HH 352-21
HC 4469/20
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OLIVER MUTYAMBIZI

and

MIDROC HOLDINGS (PVT) LTD

versus

STANLEY KASUKUWERE

and

BATSIRAYI MARTHA BAKARE

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 2 & 7 July 2021

Court Application

A Chimhofu, for the applicants

T Sengwayo, for the respondents

MANZUNZU J:  This is an application seeking an order for the dismissal of case numbers HC 1230/19 and HC 3457/19 for want of prosecution. The application is in terms of rule 236 (3) (b) which provides that;

“(3) Where the respondent has filed a notice of opposition and an opposing affidavit and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either—

(a) ………..

(b) make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.”

HC 1230/19 is an application by the respondents for rescission of judgment in case number HC 10839/18. It was filed on 15 February 2019. HC 3457/19 is a chamber application for leave to admit into evidence supporting affidavits in HC 1230/19. It was filed on 26 April 2019. Both applications were opposed.

This application is opposed by the respondents. The application was initially set down for 19 March 2021 when the parties appeared and obtained the following order by consent.

“IT IS ORDERED BY CONSENT THAT:

The application be and is hereby removed from the roll.

The respondents to set down their matters HC 1230/19 and HC 3457/19 for hearing within 14 days of this order. That is to say the respondents shall attend to preparation of the records for the two matters for hearing, apply for the hearing date and pay the Sheriff’s costs of set-down in respect of the two matters and furnish the applicants with proof thereof within 14 days.

Should the respondents not set the matters down as ordered above, the applicants herein may re-set this matter for hearing.”

The respondents having failed to comply with this order, the applicants went ahead and set the matter down for 2 July 2021. The notice of set down was served on the respondents’ lawyers on 15 June 2021. On 29 June 2021 the respondents filed notices of withdrawal of cases number HC 1230/19 and HC 3457/19.  However copies of the withdrawals were then filed in this application.

At the hearing, Mr Chimhofu who appeared for the applicants submitted that the purported withdrawals of cases number HC 1230/19 and HC 3457/19 be treated as invalid as they are not in terms of the law. On the other hand Mr Sengwayo for the respondents said the withdrawals were valid and what should only stand to be determined in this application is the issue of costs.

The position of the law in respect to withdrawal of a matter which is already set down for hearing is now settled. In the matter of Everjoy Meda v Maxiwell Matsvimbo Sibanda & 2 Others, CCZ 10/2016, MALABA DCJ, (as he then was), at page 4 of the cyclostyled judgment, had this to say in relation to a withdrawal of a case after it has been set down:

“While parties may at any time before a matter is set down, withdraw a matter, with a tender of costs the same does not hold true for a matter that has already been set down for hearing… Once a matter has been set down for hearing it is not competent for a party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of the court. In the absence of such consent or leave, a purported notice of withdrawal will be invalid…”

Counsels are in agreement that this is the correct position of the law. However, Mr Sengwayo’s argument is that HC 1230/19 and HC 3457/19 were not set down for hearing and therefore their withdrawal was competent. He was however not quick to comment as to what will become of the application for dismissal in the face of the withdrawals. Realizing the nugatory effect of the withdrawal to this application he suggested that the applicants could also withdraw their application.

Mr Chimhofu argued that this application was not a standalone application in the absence of HC 1230/19 and HC 3457/19. I agree with that submission, because it makes a lot of sense in that an application for dismissal can only relate to a pending matter. Mr Sengwayo’s argument is the splitting of hair kind of argument. The respondents should have sought the consent of the applicants, failing which the leave of the court before the purported withdrawals of HC 1230/19 and HC 3457/19. The purported withdrawals are indeed invalid.

IT IS ORDERED THAT

The notices of withdrawal in cases HC 1230/19 and HC 3457/19 filed on 29 June 2021 be and are hereby declared invalid.

Cases HC 1230/19 and HC 3457/19 remain pending.

Costs shall be in the cause.

Matsikidze Attorneys, applicants’ legal practitioners

Trust Law Chambers, respondents’ legal practitioners