Winston Andre McConville (On behalf of Buck Gordon Lohan) v Hugo Nagel and The Master of High Court

The first respondent Hugo Nagel was married to Collen Cathy McConville (the applicant's sister) who passed away on 4 March 2013 in South Africa. The deceased left a son, Buck Gordon Lohan (born 20 January 1983), who is the first respondent's stepson. The applicant alleged that Buck was mentally disturbed and that after Cathy's death, the first respondent unlawfully evicted Buck from No 97 Harare Drive, Marlborough, Harare, which was part of the deceased's estate. The applicant, claiming to act on behalf of Buck, brought an urgent chamber application seeking Buck's restoration to the property. The applicant alleged he was incurring expenses caring for Buck in Gwanda and renting accommodation for him in Harare. The first respondent denied the eviction and disputed Buck's alleged mental state. Significantly, the applicant had previously brought a substantially similar application before the Harare Magistrates Court on 25 October 2013, which was dismissed.

• Whether the applicant has locus standi in judicio to bring the application on behalf of Buck Gordon Lohan
• Whether the High Court proceedings were proper given the prior dismissal of a similar application by the Magistrates Court
• Whether the applicant complied with Rule 249(1)(a) of the High Court Rules 1971 regarding the appointment of a curator ad litem for a person suffering from mental disability
• Whether an applicant may competently withdraw an application after parties have argued points in limine but before judgment is delivered
• What costs order is appropriate where an application is withdrawn in circumstances where it was ill-advised and bad at law

1. The urgent chamber application was withdrawn. 2. The applicant was ordered to pay costs of the application on a legal practitioner-client scale (higher scale).

An applicant, being dominus litis (master of the suit), has the right to withdraw an application at any stage before the court pronounces judgment. Once a withdrawal is made, there are no proceedings before the court as the proceedings are terminated, leaving no issues of contestation for the court to determine. It would be improper for the court to proceed to rule on and dismiss an application after it has been withdrawn. However, the court retains discretion on the question of costs, and where an application is ill-advised, bad at law, disregards mandatory procedural rules (such as Rule 249(1)(a) regarding curator ad litem for mentally disabled persons), constitutes forum shopping after an adverse ruling in a lower court, and is doomed to fail, the court may impose costs on a higher legal practitioner-client scale to discourage such conduct and prevent unnecessary burdening of the courts.

The court made several obiter observations: (1) The court commented on the inappropriateness and difficulty in appreciating the nature of the interim relief sought by the applicant, though it did not deal with this aspect fully given the withdrawal; (2) The court expressed concern about the multifaceted legal battle between the applicant and first respondent involving the estate registration, validity of the joint will, and correctness of information supplied to the Master, though noting these issues were not directly relevant to the application; (3) The court noted the first respondent's belief that the applicant had launched an unwarranted but relentless legal battle to cripple him financially and adversely affect his health; (4) The court observed that it had reluctantly set down the urgent application for hearing on 20 November 2013, having already realized the non-compliance with Rule 249(1)(a), wrongly hoping that the applicant had simply omitted to include documents showing curator ad litem appointment; and (5) The court used the metaphor that courts should 'descend heavily on applicant's knuckles with a nine pound hammer' to emphasize the need for deterrent costs orders in appropriate cases.

This case is significant in Zimbabwean civil procedure for several reasons: (1) It reinforces the principle that an applicant as dominus litis retains the right to withdraw proceedings at any stage before judgment is delivered, even after points in limine have been argued; (2) It emphasizes the mandatory nature of Rule 249(1)(a) requiring appointment of a curator ad litem when representing persons with mental disabilities in legal proceedings; (3) It discourages forum shopping by litigants who seek to re-litigate matters in a different court after an adverse ruling, rather than pursuing the proper appellate remedies; (4) It demonstrates the court's willingness to impose punitive costs orders on a legal practitioner-client scale to discourage ill-advised and legally deficient applications that waste judicial resources; and (5) It clarifies issues of locus standi when purporting to act on behalf of mentally incapacitated persons without proper legal authority.