Magaga Masedza and Reuben Masedza v Gospel of God International and Commissioner General of the Zimbabwe Republic Police N.O

The applicants sought an interdict against the respondents. The matter was set down for hearing and the respondents prepared for it, briefing counsel. One day before the hearing, the applicants filed a notice of withdrawal seeking that each party bear its own costs. The respondents objected, arguing that the applicants waited until the eleventh hour to withdraw despite a Supreme Court judgment that affected the relief sought having been handed down days earlier. At the hearing, it was common cause that the relief sought had been overtaken by events, specifically a Supreme Court pronouncement that rendered the controversy academic.

• Whether withdrawal without leave should be permitted on the eve of hearing after the matter had been set down
• Whether the applicants should bear the respondents' costs despite the matter becoming moot due to a supervening Supreme Court judgment
• What is the appropriate order when an application becomes academic due to supervening events
• Whether dismissal or withdrawal with costs is the proper remedy when respondents have incurred costs preparing for a hearing

The applicants were granted leave to withdraw the application. The application was withdrawn. The applicants were ordered to pay the respondents' advocate's fees for preparation and appearance on the date of set down, such fees to be taxed by the Registrar if not agreed.

Where an application becomes moot due to supervening events (such as a superior court judgment that resolves the underlying controversy), the court has discretion to permit withdrawal without traversing the academic merits. However, where a party seeks to withdraw on the eve of a hearing after the matter has been set down and the opposing party has incurred costs in preparation, including briefing counsel, the withdrawing party should bear the wasted costs occasioned by the set-down and appearance, even though the matter became moot through no fault of either party. The general principle that a party whose conduct causes another to incur wasted costs should bear such costs applies, and fairness requires compensating the prejudiced party to the limited extent of counsel's fees for preparation and appearance.

The court observed that the case of Khupe & Ors v Parliament of Zimbabwe CCZ 20/19, relied upon by the respondents for the proposition that withdrawal should not be permitted post set-down and that dismissal is the proper remedy, was distinguishable on the facts and posture. The court noted that in the present case, the controversy did not fall away by the applicants' whim but because of a superior court's pronouncement. The court further observed that the respondents' legitimate concern lay not in vindication on the merits but in not being left out of pocket for costs unnecessarily incurred. The court commented that the approach adopted "levels the playing field, without converting a moot dispute into punitive litigation."

This judgment clarifies the approach to be adopted when an application becomes moot due to supervening events, particularly superior court judgments. It establishes the principles governing withdrawal at the door of court after set-down and the appropriate costs order in such circumstances. The case balances the principle that moot matters need not be determined on the merits against the principle that parties should not be left out of pocket for costs unnecessarily incurred. It demonstrates judicial discretion in crafting tailored costs orders that achieve fairness without converting moot disputes into punitive litigation.