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

The first and second respondents filed two applications with the High Court in February 2019: HC 1230/19 seeking rescission of judgment in HC 10839/18, and HC 3457/19 for leave to admit supporting affidavits. The applicants filed notices of opposition to both matters. After the respondents filed their answering affidavit in HC 3457/19 on 12 June 2019, they failed to file heads of argument or set the matters down for hearing. The applicants then filed HC 4469/20 seeking dismissal of both matters for want of prosecution under Rule 236(3)(b). The respondents subsequently attempted to withdraw cases HC 1230/19 and HC 3457/19, but Manzunzu J found the withdrawals invalid as HC 4469/20 had already been set down. The respondents filed HC 3984/21 to withdraw the cases, which was dismissed by Bachi-Muzawazi J on 12 October 2022. The respondents sought to appeal that decision.

• Whether HC 4469/20 should be postponed pending the respondents' intended appeal against the decision in HC 3984/21
• Whether an ancillary matter (application for leave to appeal and condonation) should be resolved before the main matter proceeds
• Whether a party should be granted postponement to file an application for leave to appeal that has not yet been properly filed with the court

The application for postponement was granted. Case HC 4469/20 was postponed sine die pending final determination of HC 3984/21. There was no order as to costs.

Where an ancillary matter has a direct bearing on the main matter such that the outcome of the ancillary matter could render the main matter moot, the main matter should be postponed pending final determination of the ancillary matter, even where the ancillary application (for leave to appeal and condonation) has not yet been formally filed but there is a reasonable explanation for the delay. A defendant ought not to be deprived of the opportunity to have an application for condonation disposed of before judgment is given against him where there appears to be an adequate explanation for why that application is not properly before the court.

The court noted the procedural history showing that respondents had been ordered on 19 March 2021 to set down cases HC 1230/19 and HC 3457/19 within 14 days but failed to do so, instead attempting to withdraw those matters. The court also observed that while the application for leave to appeal was not properly before the court at the time of the hearing, the respondents had provided a reasonable explanation for the delay and had prepared the necessary papers.

This case illustrates the Zimbabwean High Court's approach to managing interlinked litigation and the principle that ancillary matters should be resolved before the main matter proceeds. It demonstrates the court's willingness to grant procedural indulgences where there is a reasonable explanation and where ancillary applications have a direct bearing on the substantive matter. The case affirms that litigants should not be deprived of the opportunity to pursue appeals on preliminary matters that could render the main application moot.