Musa Kika v Luke Malaba and Others

The applicant filed an urgent court application which was allocated to a panel of three judges on 14 June 2021. The matter was set down for hearing on 15 June 2021 at 2pm for case management purposes. One hour before the scheduled hearing, the applicant served a notice of withdrawal of the application on all parties together with a tender for wasted costs. At the hearing, the respondents' lawyers appeared but the applicant's lawyers failed to appear despite being directed to do so by the Registrar. When contacted, the applicant's lawyers informed the Registrar that they were not coming to court. The respondents' counsels submitted that they had received the notice of withdrawal just before the hearing time and that they had all finished preparing opposing papers in anticipation of the hearing and filing by the end of that day. This was the applicant's third application in 4 weeks.

• Whether the court should exercise its discretion to allow withdrawal of the application or dismiss it on the merits
• Whether the applicant's conduct warranted dismissal on the merits given the pattern of litigation
• What costs order should be made, particularly whether wasted costs should explicitly include costs of preparing notices of opposition

1. The matter is withdrawn. 2. The applicant shall pay the respondents' wasted costs.

Once a matter has been set down for hearing, its withdrawal is at the discretion of the court, which must consider the conduct of the party seeking withdrawal. Where a notice of withdrawal is filed before opposing papers are filed and the matter is not yet ready for hearing, the court should allow withdrawal rather than dismiss on the merits. Wasted costs, by definition, include all costs reasonably incurred in preparation for the case, and therefore do not need to be itemized in a costs order to include specific items such as costs of preparing notices of opposition.

The court noted with apparent disapproval the applicant's pattern of litigation (being the third application in 4 weeks) and the lack of courtesy shown by the applicant's lawyers in failing to appear before court despite being directed to do so. While these factors were considered, they were not determinative in this instance because the procedural posture of the matter (withdrawal before opposing papers filed) meant dismissal on the merits was not appropriate. The court's comments suggest that in different procedural circumstances, such conduct might warrant dismissal on the merits rather than allowing withdrawal.

This case clarifies the court's discretion regarding withdrawal of matters once they have been set down for hearing in Zimbabwean law. It affirms that the court will consider the conduct of the withdrawing party and may refuse withdrawal in cases of vexatious or unnecessarily litigious conduct. The case also clarifies the scope of wasted costs orders, confirming that the definition of wasted costs encompasses all costs reasonably incurred in preparation for the case without need for itemization in the order.