Earthfix Global (Private) Limited v Kuzvipira Housing Co-operative Limited & 35 Others

The applicant (Earthfix Global) entered into a land development contract with the first respondent (Kuzvipira Housing Co-operative) on 29 May 2023 for the development of land in Goromonzi measuring 22,003 hectares. The applicant was to service the land (install sewer, water reticulation, roads, bridge, culverts, storm drains) and in return would receive 147 residential stands as payment. The contract provided at clause 6.4 that the owner would transfer the stands to the applicant's nominated purchasers upon completion of the whole project and receipt of a certificate of completion from the local authority. The applicant sought a declaratory order under s 14 of the High Court Act declaring it the owner of the stands. The stands were occupied by the 2nd to 36th respondents. A default judgment was initially granted on 20 March 2024 but was set aside on 25 July 2024. Some respondents opposed the application, raising points in limine including non-joinder, material disputes of fact, and that the applicant had not completed the project as required by clause 6.4. After the matter was set down for hearing on 4 March 2025, the applicant filed a notice of withdrawal on 5 March 2025 seeking to withdraw with tender of wasted costs on the ordinary scale.

• Whether leave to withdraw the application should be granted where the matter had already been set down for hearing
• Whether costs should be awarded on the ordinary party-and-party scale or on the legal practitioner-and-client scale
• The legal requirements for withdrawal of proceedings after a matter has been set down
• The circumstances warranting an award of costs on a higher (attorney-client) scale

The application for leave to withdraw the matter was granted. The matter was struck off the roll. The applicant was ordered to pay the costs of the application on a legal practitioner and client scale.

Once a matter has been set down for hearing, it is not competent for a party to withdraw proceedings without either the consent of all parties or leave of the court. A purported notice of withdrawal filed after set down without consent or leave is null and void. The court has discretion whether to grant leave to withdraw, but it is not ordinarily the function of the court to force a person to proceed with an action against their will. Costs on a legal practitioner-and-client scale (as opposed to ordinary party-and-party costs) are justified where: (a) proceedings are frivolous and vexatious or manifestly groundless; (b) there is dishonesty, recklessness or malicious conduct; (c) there is abuse of court process; or (d) a party shows a cavalier disregard for court rules and fails to prosecute matters diligently, thereby needlessly putting the other party out of pocket.

The court noted that bald assertions or unsubstantiated allegations without supporting evidence are insufficient to prove one's case. While counsel for the tenth respondent argued that the applicant had a pattern of filing and withdrawing multiple cases (forum shopping), no documentary evidence was placed before the court to substantiate this allegation beyond a single notice of withdrawal in a Magistrates' Court matter. The court stated that parties are expected to argue their cases to persuade the court, not make unsubstantiated averments and leave it to the court to make of them what it can. The court also indicated it would have been academic to probe the conduct leading to the default judgment given the other grounds for awarding punitive costs, though counsel had raised concerns about how that judgment was obtained.

This judgment reinforces important procedural principles in Zimbabwean civil procedure regarding withdrawal of proceedings and punitive costs awards. It clarifies that once a matter is set down for hearing, withdrawal requires either consent of all parties or leave of the court. The judgment also provides guidance on when costs on a higher scale are appropriate: where proceedings are frivolous and vexatious, manifestly groundless, constitute an abuse of court process, or where a party shows a cavalier disregard for court rules and fails to prosecute matters diligently. The case emphasizes that litigants seeking declaratory relief based on contractual rights must establish their entitlement under the contract, and that applications lacking proper foundation will attract punitive cost orders even if subsequently withdrawn. It serves as a warning against instituting litigation without proper legal foundation and failing to prosecute matters with due diligence.