Jaisere Madhume v The Provincial Magistrate and Mrs Wakatama N.O and Rebecca Kunaka

On 10 March 2006, the applicant noted an appeal to the High Court against the decision of the second respondent under case No. CIV(A) 162/06. The appeal was set down for hearing on 31 October 2006. During the hearing, the presiding judges raised concerns about the state of the record. Following this, the applicant withdrew the appeal. The applicant then filed a court application seeking to set aside the second respondent's decision, which he withdrew on 26 October 2007. On 19 November 2007, the applicant filed the present application seeking re-instatement of the appeal in case No CIV(A) 162/06. His basis for seeking reinstatement was that he was now in possession of the "Reasons for Judgment" which he did not have at the time of the hearing of the appeal, and he now intended to proceed with the appeal.

• Whether the High Court has jurisdiction to re-instate an appeal which has been consciously withdrawn by a party
• Whether Rule 449 of the High Court Rules 1971 applies to permit the court to interfere with a withdrawn appeal
• Whether the matter is res judicata
• The proper interpretation and application of the High Court's inherent jurisdiction

1. The application is dismissed. 2. The applicant to pay the third respondent's costs.

There is no procedure in law permitting the re-instatement of an appeal that has been consciously withdrawn by a party. When a party withdraws an appeal, they remove the proceedings from the purview of the court and abandon the claim - the claim no longer exists on the court's roll. This is distinguishable from situations where an appeal is struck off or removed from the roll on technical grounds, which can be reinstated once deficiencies are remedied. The High Court's inherent jurisdiction does not mean it can entertain applications without a legal basis in common law or statute - any application and relief sought must be authorized by statute or common law. An application stands or falls on the facts alleged in the founding affidavit, which informs the respondent of the case that must be met.

The court clarified the proper understanding of the High Court's inherent jurisdiction, explaining that the concept only distinguishes the High Court from inferior courts which are creatures of statute bound by the four corners of their enabling legislation. The inherent jurisdiction does not create a carte blanche power to hear any matter regardless of whether there is a legal foundation. The court also noted that the applicant, when encountering problems with the appeal, should have applied to have it struck off or removed from the roll rather than opting to withdraw, as this would have preserved the option of reinstatement.

This case is significant in Zimbabwean civil procedure law as it establishes the important distinction between withdrawal of an appeal and striking off/removal from the roll. It clarifies that there is no procedure in law to re-instate a withdrawn appeal, as withdrawal constitutes abandonment of the claim and removal of the matter from the court's purview. The case also provides important guidance on the limits of the High Court's inherent jurisdiction, clarifying that such jurisdiction does not permit the court to entertain applications without a legal basis in statute or common law. The judgment reinforces the fundamental principle that applications stand or fall on their founding affidavits, and parties cannot rely on submissions or arguments that are not supported by the pleaded facts.