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

The applicants had filed two applications (HC 1230/19 and HC 3457/19) which they failed to prosecute. The respondent filed a chamber application (HC 4469/20) for their dismissal for want of prosecution. On 19 March 2021, by consent, the court directed applicants to set down their two matters within 14 days, failing which the respondents could reset their dismissal application. The applicants failed to comply, and the respondent reset the dismissal application for 2 July 2021. Three days before the hearing (on 29 June 2021), the applicants filed notices of withdrawal of both matters. On 2 July 2021, despite the notices of withdrawal, the court dismissed both matters, reasoning that the withdrawal notices were invalid because they were filed after the dismissal application had been set down. The court held that the dismissal application and the matters sought to be dismissed were not severable, and withdrawal required either consent of the other party or leave of the court. Dissatisfied, the applicants sought leave to appeal against the judgment in HH 352/21.

• Whether an application for dismissal for want of prosecution can be separated from the matters it seeks to dismiss
• Whether the setting down of a dismissal application constitutes setting down of the underlying matters
• Whether parties can validly withdraw matters after a dismissal application has been set down without consent or leave of court
• Whether the applicants had reasonable prospects of success on appeal
• Whether the applicants' grounds of appeal were sufficiently clear and concise to meet procedural requirements

The application for leave to appeal was dismissed with costs on the ordinary scale.

Once an application for dismissal for want of prosecution has been set down for hearing, the underlying matters sought to be dismissed cannot be withdrawn without the consent of all parties or leave of the court. The dismissal application and the matters it seeks to dismiss are not severable - the setting down of the dismissal application effectively constitutes the setting down of the underlying matters for the purpose of determining their fate. A notice of withdrawal filed after such set down, without consent or leave, is invalid. For leave to appeal to be granted, an applicant must demonstrate reasonable prospects of success - more than mere arguability, but a realistic chance of success based on a sound rational basis. Grounds of appeal must be clear, concise, and to the point as required by the rules of court.

The court observed that the withdrawal notices were filed as a "pre-emptive strike to save applicants faces from the inevitable dismissal of their matters for want of prosecution." The court noted that had the matters been withdrawn before the set down date, the applicants would have had the right as dominus litus to withdraw them. The court commented that while respondents sought costs at a higher scale, this was not a case where such costs were justified. The court also noted that the moot argument raised in written submissions was not motivated in oral argument and therefore nothing turned on that point.

This case reinforces important principles of Zimbabwean civil procedure regarding the validity of withdrawal of court applications after a dismissal application has been set down. It clarifies that an application for dismissal for want of prosecution and the underlying matters are inseparable for procedural purposes. The case also emphasizes the strict requirements for grounds of appeal to be clear and concise, and reiterates the test for reasonable prospects of success on appeal - requiring more than mere arguability but a realistic chance of success based on a sound rational basis. It confirms that appeals are directed at orders, not at obiter dicta or the reasoning of the court.