Simon Mupindu v Sandra Mupindu

The plaintiff instituted divorce proceedings against the defendant in 2024, seeking ancillary relief relating to custody, maintenance and sharing of matrimonial property. The matter was set down for continuation of hearing on 5 February 2026 following a postponement granted at the plaintiff's instance on 14 January 2026. The earlier postponement was granted on the basis that the plaintiff needed to obtain a valuation report of immovable property, address alleged changes in custody circumstances, and subpoena the defendant's banking records. On 4 February 2026, one day before the rescheduled hearing, the plaintiff unilaterally filed a notice of withdrawal of the entire action without a tender of costs and without prior engagement with the defendant. The plaintiff's stated reason for withdrawal was a desire to pursue possible negotiations with the defendant to resolve the matter amicably. The defendant opposed the withdrawal, submitting that the marriage had irretrievably broken down, there were no realistic prospects of reconciliation (the plaintiff had moved on with another partner), and she had prepared for the hearing in reasonable expectation it would proceed.

• Whether a court should permit the withdrawal of an action after the matter has been set down for hearing
• Whether withdrawal after set down should be granted with or without an order as to costs
• Whether costs require specific pleading in order to be awarded
• What standard of conduct is expected of litigants seeking to withdraw proceedings after set down

1. The plaintiff's withdrawal of the action is permitted. 2. The plaintiff shall pay all the defendant's costs on the ordinary scale for the entire matter.

Once a matter has been set down for hearing, a plaintiff does not have an unfettered right to withdraw proceedings; withdrawal is subject to the court's discretion which must be exercised judicially having regard to the interests of justice, fairness to both parties, and finality in litigation. Costs are a matter for the court's discretion and do not require specific pleading to be awarded. A withdrawal after set down is ordinarily treated as an abandonment of the claim, entitling the opposing party to costs, as the withdrawing party is in the same position as an unsuccessful litigant. The general principle that costs follow the event applies to withdrawals after set down. However, compelling a plaintiff to proceed with an action he no longer wishes to pursue, in the absence of a counterclaim, serves little practical purpose.

The court observed that while matrimonial matters undoubtedly involve sensitive and far-reaching consequences, that consideration alone does not entitle a litigant to act unilaterally in a manner that disregards the position of the opposing party and the processes of the court. The court noted that the defendant remains at liberty, should she wish, to institute or pursue her own proceedings for divorce. The court also made observations about the importance of litigants engaging timeously and transparently with opposing parties if their intentions change, and that while parties in matrimonial disputes may reassess their positions particularly where alternative resolution is contemplated, such reassessment must be undertaken in a manner that is fair to the other party and respectful of the court process. The court emphasized that in matrimonial matters, considerations of fairness and proportionality are of particular importance when determining the appropriate costs order.

This judgment is significant in Zimbabwean civil procedure as it clarifies the principles governing withdrawal of proceedings after a matter has been set down for hearing. It reinforces that withdrawal after set down is not an automatic right but subject to judicial discretion. The case establishes important guidance on costs consequences when a party withdraws proceedings late in the process, particularly after obtaining postponements. It confirms that costs do not require specific pleading and that a withdrawal after set down ordinarily attracts costs on the basis that the withdrawing party is in the same position as an unsuccessful litigant. The judgment also provides guidance on the standard of procedural fairness expected of litigants, emphasizing the importance of timely engagement with opposing parties and respect for court processes, even in sensitive matrimonial matters. While this is a Zimbabwean case, its reasoning on civil procedure principles may have persuasive value in South African courts dealing with similar issues of withdrawal and costs.