Yang Linhai v Cheng Minglei and Others

The applicant Yang Linhai approached the High Court seeking to be declared the lawful owner of all 2000 shares in Timsite Enterprises (Pvt) Ltd. The application was filed on 30 October 2015. The first respondent filed an opposing affidavit in 2023, which did not initially raise any defects in the founding affidavit. However, in a second set of heads of argument filed in 2024, the first respondent raised a point in limine that the founding affidavit had a computer-generated date and was improperly commissioned. On the day of the hearing (28 October 2025), the applicant filed a notice of withdrawal. An application for joinder in case number HCH3096/25 by interested parties was deemed abandoned on 23 October 2025. The applicant's counsel argued that the withdrawal was motivated by the defect in the founding affidavit and sought to have the application struck from the roll with costs.

• Whether an application for withdrawal may be granted after a matter has been set down for hearing without the consent of the parties or leave of the court
• Whether the application should be dismissed or struck from the roll
• Whether costs should be awarded on an attorney and client scale or on an ordinary scale

A. The oral application for the withdrawal of the matter is dismissed. B. The application is struck from the roll with costs on an ordinary scale.

Once a matter has been set down for hearing, it is not competent for a party to withdraw proceedings without either the consent of all parties or the leave of the court. A purported notice of withdrawal filed without such consent or leave is invalid and will be dismissed. Where a matter is struck from the roll (as opposed to dismissed), the applicant retains the right to institute fresh proceedings, thereby preserving access to justice. Costs on an attorney and client scale should only be awarded where there are special circumstances such as vexatious or frivolous proceedings, dishonesty or fraud, reckless or malicious conduct, or deplorable attitude towards the court. The court must exercise judicial discretion on costs based on all the circumstances of the case, including the conduct of the parties and fairness between the parties.

The court observed that dismissal of a matter would shut the door of access to justice and should therefore be approached with caution. The court noted with apparent sympathy that the founding affidavit was filed only 15 days after the Mandishaika v Sithole judgment introduced new jurisprudence on improperly commissioned affidavits, suggesting that parties should not be unduly penalized for failing to comply with legal requirements that emerge from very recent jurisprudence. The court also commented that a dismissal on jurisdictional or procedural grounds leaves nothing further before the court to dismiss, implying that striking from the roll is the more appropriate remedy in such circumstances.

This case reinforces important principles of civil procedure in Zimbabwean law (which shares common law heritage with South African law) regarding: (1) the proper procedure for withdrawing matters that have been set down for hearing, requiring either consent of all parties or leave of the court; (2) the distinction between dismissing a matter and striking it from the roll, with the latter preserving the applicant's right to bring fresh proceedings and protecting access to justice; (3) the exercise of judicial discretion in awarding costs, including the high threshold that must be met before punitive costs on an attorney and client scale are awarded; and (4) the court's consideration of the timing of raising procedural defects in relation to the development of jurisprudence, demonstrating a balanced approach where parties are not unduly penalized for filing documents shortly after new legal principles emerge.