Urgent
Court Application
MUREMBA
J:
This
is a unanimous decision of the court.
The
applicant filed an urgent court application which was allocated to us
on the 14th
of June 2021. After perusing it, we set it down for hearing today at
2pm for the purpose of doing case management.
An
hour before the hearing we were served with a notice of withdrawal of
the application with a tender for wasted costs.
The
respondents lawyers appeared for the hearing. However, the
applicant's lawyers did not appear even after we had directed them
to appear through the Registrar's office.
The
Registrar informed us that they said that they were not coming.
We
note the following uncontested submissions which were made by the
respondents counsels:
1.
That they all received the notice of withdrawal just before the time
set for the hearing.
2.
That they had all finished preparing opposing papers in anticipation
of the hearing and filing by end of day this date.
Mr
Nzarayapenga
and Mr Chinake
accepted the withdrawal and a tender of wasted costs. Both counsels
further submitted that these costs should be inclusive of the costs
of preparing the notices of opposition. They asked the court to make
this clear in the order for costs.
Citing
the cases of Meda
v Sibanda
2016 (2) ZLR 232 (CCZ) and
Abramacos
v Abramacos 1953
(4) SA 474 (SR), Mr Magwaliba
submitted
that once a matter has been set down for hearing its withdrawal is at
the discretion of the court.
In
exercising its discretion, the court considers the conduct of the
party withdrawing the matter. If the party withdrawing a matter is
unnecessarily litigious, the court may decline a withdrawal and opt
instead to dismiss the matter on the merits.
He
submitted that in
casu,
this was applicant's third application in 4 weeks. In addition, the
applicant had no courtesy to appear before the court as directed. Mr
Magwaliba
moved the court to exercise its discretion whether to accept the
withdrawal or to dismiss the application on the merits and in either
case with an order for wasted costs.
Disposition
Having
carefully considered submissions made by counsels for all the
respondents, it is the decision of this court to allow the withdrawal
with a tender of wasted costs.
We
have decided not to dismiss the application on the merits because the
notice of withdrawal was filed before the respondents had filed their
notices of opposition. This is a matter which was not yet ready for
hearing. So, it may not be dismissed on the merits.
With
regards to the issue of costs, we note that the applicant has
tendered wasted costs. That tender is enough to take care of concerns
raised by Messrs Chinake
and
Nzarayapenga.
By
definition, wasted costs are all costs reasonably incurred in
preparation for the case.
In
light of this definition, there is no need for the order to spell out
that wasted costs shall include costs for preparing the notices of
opposition.
In
the result, it be and is hereby ordered that:
1.
The matter is withdrawn.
2.
The applicant shall pay the respondents wasted costs.
KWENDA
J agrees …………………………………………..
MUSITHU
J agrees……………………………………………
Dube-Banda
Nzarayapenga,
1st
respondent's legal practitioners
Kantor
& Immerman,
3rd
respondent's legal practitioners
Attorney
General's Office, Civil Division,
2nd
& 4th
respondents legal practitioners
