EARTHFIX GLOBAL (PRIVATE) LIMITED v KUZVIPIRA HOUSING CO-OPERATIVE LIMITED and Others (255 of 2025) [2025] ZWHHC 255 (11 April 2025)

8 HH 255-25 HCH 6604/23 EARTHFIX GLOBAL (PRIVATE) LIMITED and KUZVIPIRA HOUSING CO-OPERATIVE LIMITED (1) and TICHAONA MOYO (2) and PONALD MBADZO (3) and TAURAI MBERI (4) and PRECIOUS MAKANHIWA (5) and CHACHA RUVANGA (6) and PETER GOORA (7) and VARAIDZO CHAUKE (8) and BERNARD NKOMO (9) and SABASTIAN GWATI (10) and PAMBISAI MANDAZA (11) and AMON CHIBAYA (12) and ELISON CHADHO (13) and JUDAH MADAMOMBE (14) and AGONY ZHOU (15) and PEACHES MARUVA (16) and CHAUYA PASHATA (17) and LEONARD CHABARIKA (18) and RONALD MADZIVANYIKA (19) and GRACIOUS CHANAKIRA (20) and KENIAS MAZHINDU (21) and CHIYANGWA PASIPANODYA (22) and L. P. MAKARANGE (23) and VIOLA GWATI (24) and SOLOMON NYAUDZE (25) and EUGINE ZIMUNHU (26) and SIMON MAFUKA (27) and BONFACE MATEMA (28) and COASTER MUTUKULA (29) and B. ZANDZA AND D. SAMBOKO (30) and PAINOS SHEDZERI (31) and ADIJA MILADZI (32) and DEREDZAI FARIKANI (33) and EVERJOY TAZVIWANA (34) and CHRISTOPHER CHAKANYUKA (35) and MR MUSHAYI (36) HIGH COURT OF ZIMBABWE DEMBURE J HARARE, 20 March & 11 April 2025 Opposed Court Application P. Tsimba, for the applicant T. S. Manjengwa for the 2nd, 3rd, 15th – 18th, 34th & 35th respondents D. E. Kawenda for the 10th respondent No appearances for the 1st, 4th – 14th, 19th – 33th and 36th respondents DEMBURE J: INTRODUCTION 1. On 20 March 2024, the court issued an ex tempore judgment the operative part of which was that the application for leave to withdraw the matter was granted, that the matter having been withdrawn is struck off the roll and that the applicant shall pay the costs of the application on a legal practitioner and client scale. On 3 April 2025, the applicant’s legal practitioners requested full reasons for the judgment. These are they: 2. The applicant approached this court seeking a declaratory order and consequential relief. The application was filed in terms of s 14 of the High Court Act [Chapter 7:06]. The applicant sought an order declaring it the owner and holder of rights, interest and title in stands 24738, 24739, 24748, 24751, 24753, 24758, 24761, 24765, 24766, 24767, 24769, 24772, 24773, 24774, 24775, 24779, 24780, 24782, 24783, 24784, 24896, 24904, 24907, 24909, 2410, 24927, 24832, 24956, 25957, 24962, 24965, 24966, 24968, 24970, 24981, 25004, 25004 and 25013 of Ruwa Township of Subdivision A of Athelney of Galway Estate situate in the district of Goromonzi (“the stands”). The second, third, tenth, fifteenth, sixteenth, seventeenth, eighteenth, thirty-fourth, and thirty-fifth respondents opposed the application. The first, fourth to fourteenth, nineteenth to thirty-third and thirty-sixth respondents did not oppose the application. FACTUAL BACKGROUND 3. The applicant’s case was that on 29 May 2023, it entered into a contract with the first respondent for the development of a certain piece of land situate in the district of Goromonzi called Subdivision A of Athelney of Galway Estate measuring 22 003 hectares and registered under Deed of Transfer No. 12696/2001. The said piece of land was subdivided to create residential stands, including the stands subject to these proceedings. 4. In terms of the said written contract, the applicant was obliged to service the said first respondent’s land, which works included attending to the installation of sewer and water reticulations, construction of roads up to tar level and a bridge and the installation of culverts and storm drains. The first respondent would surrender one hundred and forty-seven (147) stands as payment for the services. The stands are occupied by the second to thirty-sixth respondents. 5. The applicant also alleged that the first respondent represented that there were no claims by any third party over these stands. It was also averred that the applicant is a bona fide owner of the stands in question and that the balance of convenience favours the granting of the declaratur sought. 6. On 20 March 2024, the court, before katiyo J, granted the application in default of the respondents. The default judgment was subsequently set aside before CHITAPI J on 25 July 2024. This resulted in the respondents who are before me filing their opposing papers. The matter was then referred to me for determination on the opposed roll. 7. The second, third, fifteenth, sixteenth, seventeenth, eighteenth, thirty-fourth, and thirty-fifth respondents raised through their opposing affidavits a point in limine that there was a non-joinder of other interested parties, namely Chemplex Housing Cooperative Limited and CAPH Housing Cooperative Limited. They contended that they are members of CAPH Housing Cooperative Limited. They also raised a point that there were material disputes of fact incapable of resolution on the papers and that the applicant ought to have approached the court by way of an action procedure. 8. They further chronicled the long history concerning the dispute over the stands in question. They contended that they occupied the stands as members of the cooperative and that the applicant cannot seek to obtain rights, interest and title in the property they acquired. It was also argued that they were never part of the agreement between the applicant and the first respondent. It was also stated that the said agreement was entered into without the consent of the cooperatives which had an arrangement with the first respondent governing the development of the stands in question. 9. It was further asserted that the agreement, in any case, prescribed the transfer of the 147 stands to the applicant’s nominated purchasers upon completion of the whole project upon receiving a certificate of completion from the local authority. They also pointed out that the applicant had not pleaded that it had completed the work and received the certificate of completion. On that basis, it was argued that the applicant could not, therefore, claim any right to the ownership of the stands. 10. As for the tenth respondent, it was contended that the agreement between the applicant and the first respondent was illegal as there was no prior approval of the Registrar in terms of s 80 of the Cooperative Societies Act [Chapter 24:05]. It was also averred that the applicant could not seek to be declared the owner of the land by virtue of a contract. That the applicant does not hold any real rights to the stands, and they could not seek to fortify rights they do not hold at law. There was also a supporting affidavit of Chemplex Housing Cooperative Limited attached to the tenth respondent’s opposing affidavit. 11. On 4 November 2024, the tenth respondent’s legal practitioners set down the matter for hearing on the opposed roll. On 4 March 2025, the Registrar set down this matter. Following the said set down, the applicant filed a notice of withdrawal seeking to withdraw the application with a tender of wasted costs on 5 March 2025. Since the matter had already been set down for hearing and there being no consent to the withdrawal by all the parties, two issues arose, namely: whether or not leave to withdraw the application could be granted and if so, whether or not costs should be awarded against the applicant on a legal practitioner and client scale. ISSUES FOR DETERMINATION 1. WHETHER OR NOT LEAVE TO WITHDRAW THE APPLICATION SHOULD BE GRANTED SUBMISSIONS MADE ON THE ISSUE 12. Ms Tsimba, counsel for the applicant, submitted that as noted from the record, the applicant filed a notice of withdrawal and no longer wished to pursue the case. She sought leave to withdraw the matter. She further submitted that the first notice of withdrawal was rejected in February 2025 because they had omitted to offer costs. The amended notice was then refiled on 5 March 2025 after receipt of the notice of set down. It was also submitted that the basis of the application for a declaratur was the agreement between the applicant and the first respondent. The applicant was given assurance by the first respondent that they were the owners of the stands. The first respondent consented for the applicant to get the declaratory order. The applicant became aware of the other respondents when they filed for rescission of the default judgment. The applicant consented to the rescission. The applicant now wants to seek a remedy from the first respondent based on the contract with the first respondent. Therefore, the applicant no longer seeks to persist with the application. The applicant is seeking that the matter be withdrawn with an order for costs on the ordinary scale. 13. Mr Manjengwa submitted that the respondents he was representing were not opposed to the withdrawal of the matter save for costs, which must be granted on a legal practitioner and client scale. 14. On the other hand, Ms Kawenda submitted that the tenth respondent was opposed to the application for leave to withdraw the matter. She argued that there was no consent to the withdrawal. It was the tenth respondent who set down the matter. The applicant cannot willy-nilly withdraw this matter. 15. Counsel further argued that she would highlight four issues. The first issue is that in respect of the application before the court, the applicant was represented, and as such, it had the purview of counsel to advise it. What was required for the applicant to do in terms of s 80(1) of the Cooperative Societies Act was not done. The applicant overlooked that whilst in the hands of counsel. Secondly, the applicant is seeking a declarator to be declared the owner of the land but failed to appreciate the provisions of s 14 of the Deeds Registries Act [Chapter 20:05], where ownership is only obtained by way of a deed of transfer. 16. Ms Kawenda also submitted that this application should not have been filed. It is a frivolous application. The other issue is that the applicant is forum shopping. Over the past two years, the cooperative members had been, in one court or the other, being dragged by the applicant. When a point of law arises, the applicant has a tendency to withdraw. At the same time, it still seeks to assert rights over the same land. This matter must be brought to finality. This is now an abuse of court process and cannot go on. How the default judgment was obtained leaves a lot to be desired. If the withdrawal is to be granted, it must be granted with costs on an attorney-client scale. 17. In her reply, Ms Tsimba submitted that what the applicant sought in the declaratur emanated from the development contract. When the court queried the basis of the application for a declaratory order given clause 6.4 of the agreement, counsel conceded that the approach to the court given clause 6.4 was unnecessary. Counsel also accepted that there was no other agreement between the applicant and the first respondent before the court besides the one attached to the application. ANALYSIS OF THE LAW AND THE FACTS 18. The settled principle of the law is that parties are at liberty to withdraw a matter at any time before it is set down for hearing and that once the matter is set down, it can only be withdrawn either with the consent of the other party or the leave of the court. Accordingly, once the matter is set down, its withdrawal is not there for the taking. The law was enunciated by the Constitutional Court in the case of Overjoy Meda v Maxwell Matsvimbo Sibanda & 3 Ors CCZ 10/16 at p 4, where MALABA DCJ (as he then was) had this to say: “While parties may at any time before a matter is set down, withdraw a matter, with a tender of costs the same does not hold true for a matter that has already been set down for hearing. Once a matter is set down, withdrawal is not there for the taking. The applicable principles are set out in Erasmus “Superior Court Practice” B1-304. A person who has instituted proceedings is entitled to withdraw such proceedings without the other party’s concurrence and without leave of the court at any time before the matter is set down. The proceedings are those in which there is lis between the parties one of whom seeks redress or the enforcement of rights against the other. An application for appropriate relief on the grounds of alleged violation of a right is such a proceeding. Once a matter has been set down for hearing it is not competent for a party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of the court. In the absence of such consent or leave, a purported notice of withdrawal will be invalid. The court has a discretion whether or not to grant such leave upon application. The question of injustice to the other parties is germane to the exercise of the court’s discretion. It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one. See - Abramacos v Abramacos 1953 (4) SA 474(SR); Pearson & Hutton NNO v Hitseroth 1967 (3) 591(E) at 593D, 594H Protea Assurance Co Ltd v Gamlase 1971 (1) SA 460(E) at 465G Huggins v Ryan NO 1978 (1) SA 216(R) at 218D Franco Vignazia Enterprises (Pty) Ltd v Berry 1983 (2) SA 290(C) at 295H Levy v Levy 1991 (3) SA 614(A) at 620B Herbstein & Van Winsen “The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa” (5ed) p 750 From the above authorities, it is the law that a court, having satisfied itself that a matter is properly before it, can refuse to grant an application for withdrawal of the matter.” 19. It is common cause that this matter was set down for hearing on 4 March 2025. It is also not in dispute that the purported notice of withdrawal in this case was filed on 5 March 2025. It was, therefore, filed after the matter was set down. Applying the above legal principles, the applicant was required by the law to seek the consent of all the respondents or the leave of the court before purporting to withdraw the matter. The applicant could no longer withdraw the matter willy-nilly. Ms Tsimba confirmed that she did not seek the consent of all the parties to withdraw the matter. The legal practitioners also filed the notice on 5 March 2025 without the leave of the court. The purported notice of withdrawal was, therefore, null and void. 20. The applicant’s counsel accepted the above position and applied to be granted the leave to withdraw the matter at the hearing. As was clear from the submissions, the other respondents represented by Mr Manjengwa did not oppose the withdrawal of the matter. The application for leave to withdraw the matter was only opposed by the tenth respondent. Ms Tsimba gave cogent reasons for the withdrawal of the matter. The applicant intended to pursue contractual remedies against the first respondent, the other contracting party. There would not be any prejudice to the other respondents if that course is taken. There will not be any injustice to talk about or which I perceived would be occasioned by the withdrawal to the respondents before me. I did not, therefore, find any good reason why the withdrawal could not be sanctioned. As stated in the Meda v Sibanda judgment supra, “It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one.” 21. I adopted the above reasoning in this case, as that was what was warranted in the circumstances. I must admit that the greater part of the submissions from Ms Kawenda in opposing the application to withdraw the matter were focused on the merits of the application for a declaratory order itself rather than the application for leave to withdraw the matter. She also argued that there must be finality to litigation and that the applicant had been filing several applications and withdrawing them. Unfortunately, counsel simply made bald assertions on this point. She did not place before the court the said matters or make any references to the case numbers of those numerous matters filed and withdrawn over the same cause of action. While counsel could not lead evidence from the bar, she should have at least referred me to some court record numbers, or at least the opposing papers filed by the tenth respondent would have established such averments. It is trite that bald assertions or unsubstantiated allegations are insufficient to prove one’s case or position. In Delta Beverages (Pvt) Ltd v Murandu SC 38/15, the court made the following remarks, which apply to this case with full force: “I take the time to point out that parties are expected to argue their cases so as to persuade the court to see merit, if any, in the arguments advanced by them. They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.” 22. I, however, noted that there is a notice of withdrawal of a Magistrate's Court summons matter for an eviction order filed under Case No. Hre C-CG2530/23 attached to the other respondents’ opposing papers at p 89 of the record. That single notice could not, even if I consider the record as a whole, create a pattern of litigation to constitute forum shopping as argued by Ms Kawenda. There was no evidence of repeated filing and withdrawals of cases as had been alleged. The tenth respondent did not attach any documentary evidence or made averments to that effect in his opposing affidavit, nor did his counsel refer me to any such cases. The court was, accordingly, satisfied that the application for leave to withdraw the matter ought to be granted. That was the decision it could only make in the exercise of its discretion, given the circumstances. WHETHER OR NOT COSTS ON A LEGAL PRACTITIONER AND CLIENT SCALE SHOULD BE GRANTED SUBMISSIONS MADE ON THE ISSUE 23. Ms Tsimba submitted that the wasted costs should be granted on an ordinary scale as tendered by the applicant. On the other hand, Mr Manjengwa argued that the costs must be awarded against the applicant on a legal practitioner and client scale. He further argued that costs on a higher scale are granted where there is dishonesty and other conduct by a party, such as where the proceedings are frivolous and vexatious. He referred the court to the case of Mahembe v Matambo 2003 (1) ZLR 148. It was further argued that the conduct of the applicant was dishonest. The proceedings were instituted and purported to be served on the respondents. That conduct led to the default judgment. This necessitated the application for rescission, and the costs were reserved. There was pending litigation where the applicant was aware of the legal practitioners for the respondents, yet they claimed that the respondents were represented by Mutonhori & Partners. The applicant knew the respondents were being represented by Wintertons. They were reckless or dishonest to serve on a legal practitioner who was not representing them. This also amounted to malicious conduct. 24. Mr Manjengwa further submitted that in relation to the main matter, the proceedings were frivolous and vexatious. The basis of the application is an agreement between the applicant and the first respondent. In the same agreement, the applicant’s entitlement to payment with stands only accrue after performance of the contract. These proceedings were commenced when there was no performance. He also submitted that the last point relates to a litigant who lacks seriousness in his approach. He also argued that he wrote to the applicant’s legal practitioners to take their matter seriously and to take further steps to prosecute their case. The withdrawal was made when the matter was set down for hearing. 25. Ms Kawenda submitted that she would adopt most of the submissions made by Mr Manjengwa. She submitted that the same issues she raised in opposition to the application for withdrawal would still apply in respect of costs. She further argued that over a year of trying to put reason to the applicant, the applicant had been adamant that it has a case. Meetings have been held over the matter, and the burden cannot continue lying with the respondent. She also queried how the default judgment was obtained and said that it also leaves a lot to be desired. She finally argued that costs on a higher scale are warranted if the withdrawal of the matter is granted. ANALYSIS OF THE LAW AND THE FACTS 26. It is a settled principle of the law that the issue of costs is within the discretion of the court. See Hebstein & Van Winsen in The Civil Practice of the High Court and the Supreme Court of Appeal of South Africa, 5 ed: Vol 2 p 954, where it was stated as follows: “The award of costs in a matter is wholly within the discretion of the Court, but this is a judicial discretion and must be exercised on grounds upon which a reasonable person could have come to the conclusion arrived at. The law contemplated that he should take into consideration the circumstances of each case, carefully weighing the various issued in the case, the conduct of the parties and any other circumstances which may have a bearing upon the question of costs and then make such order as to costs as would be fair and just between the parties...” 27. On when the court should award costs on a legal practitioner and client scale, in Crief Investments (Pvt) Ltd & Anor v Grand Home Centre & Ors HH 12/18 MUSHORE J restated the legal position as follows: “The learned authors According to the leading authority as to attorney and client costs in South African law, Nel v Waterberg Landbouwers Ko-operative Vereeninging 1946 AD 597 at 607 where his Lordship Tindal JA stated: “The true explanation of awards of attorney and client costs not authorized by statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the courts in case considers it just, by means of such order, to ensure more effective than it can do by means of judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation .” AC Cilliers in The Law of Costs 2nd ed p 66, classified the grounds upon which the court would be justified in awarding the costs as between attorney and client: (a) Vexatious and frivolous proceedings (b) Dishonesty or fraud of litigant (c) Reckless or malicious proceedings (d) Litigant’s deplorable attitude towards the court (e) Other circumstances In essence, the cases establish a position that courts should award costs at a higher scale in exceptional cases where the degree of irregularities, bad behaviour and vexatious proceedings necessitates the granting of such costs, and not merely because the winning party requested for them. Costs should not be a deterrent factor to access to justice where future litigants with genuine matters which deserve judicial alteration. In awarding costs at a higher scale the courts should therefore exercise greater vigilance.” [my emphasis] See also Mahembe v Matambo supra. 28. There was no issue whether the costs should be awarded. The applicant tendered such costs but on the ordinary scale of party and party. The only issue that arose was whether such costs had to be granted on a legal practitioner and client scale, as argued by the respondents. I found the costs on a legal practitioner and client scale to be justified in the circumstances. 29. Applying the principles of law above, there was conduct which warranted that the applicant be mulcted with an order for such punitive costs. The applicant sought a declaratory order that it be declared the owner of the stands in question. The basis of such a claim was the contract for the land development it concluded with the first respondent. Counsel for the applicant conceded that there was no other agreement save for the one at pp 24 – 28 of the record. Clause 6.4 of the said contract stated: “The owner shall transfer stands to the contract’s nominated purchasers of the allocated 147 stands upon completion of the whole project, upon receiving a certificate of completion from the local authority.” It is clear that the applicant would only be entitled to claim ownership of the stands upon full performance of its obligations. The applicant did not make any averments in the founding affidavit that it completed the project as agreed and was, therefore, entitled to obtain title over the stands. When the court inquired about this, Ms Tsimba was quick to concede that, given the provisions of clause 6.4 of the contract, the application was unnecessary. Indeed, it was completely unnecessary. 30. I agree with Mr Manjengwa that this application was manifestly groundless or utterly hopeless and without foundation. In other words, it was frivolous and vexatious. It constituted a blatant abuse of court process and needlessly made the respondents suffer unnecessary litigation expenses. They have been put out of pocket unnecessarily and should be allowed to recover their wasted costs. 31. The other reason for awarding the punitive costs was that the applicant did not act diligently and with the seriousness expected in pursuing this case. Litigants who institute legal action must do so to seek justice. They cannot be expected to clog the system unnecessarily. This is why the rules of court contain provisions meant to dismiss matters or applications for want of prosecution. It is common cause that it took the tenth respondent for this matter to be set down for hearing. He is the one who requested the setting down of the matter. The notices of opposition by the respondents were all filed in August 2024, and the applicant did nothing thereafter to bring the matter to finality. Ms Tsimba further claimed that she filed a notice of withdrawal in February and that it was rejected, but again did not immediately rectify the anomaly. It is clear that the applicant was sprang into action to file the purported notice of 5 March 2025 because of the set down of this matter. Such a cavalier approach to complying with the court rules, which now emphasise speedy prosecution of matters, showed a complete disdain for the rules of court and the court processes. The applicant’s conduct does not, therefore, deserve any kid-glove treatment. Costs on a punitive scale were warranted. 32. Having found the conduct of the applicant worthy an order for costs on a legal practitioner and client scale on the basis of the above reasons, it became merely academic to probe the conduct of the applicant or its legal practitioners, leading to the default judgment as called for by Mr Manjengwa and Ms Kawenda. DISPOSITION 33. For the above reasons, the court entered the judgment as aforestated DEMBURE J: …………………………………………… Hungwe Attorneys, applicant’s legal practitioners Wintertons, 2nd, 3rd, 15th -18th, 34th & 35th respondents’ legal practitioners Wilmot & Bennett, 10th respondent’s legal practitioners 8 HH 255-25 HCH 6604/23 8 HH 255-25 HCH 6604/23 EARTHFIX GLOBAL (PRIVATE) LIMITED and KUZVIPIRA HOUSING CO-OPERATIVE LIMITED (1) and TICHAONA MOYO (2) and PONALD MBADZO (3) and TAURAI MBERI (4) and PRECIOUS MAKANHIWA (5) and CHACHA RUVANGA (6) and PETER GOORA (7) and VARAIDZO CHAUKE (8) and BERNARD NKOMO (9) and SABASTIAN GWATI (10) and PAMBISAI MANDAZA (11) and AMON CHIBAYA (12) and ELISON CHADHO (13) and JUDAH MADAMOMBE (14) and AGONY ZHOU (15) and PEACHES MARUVA (16) and CHAUYA PASHATA (17) and LEONARD CHABARIKA (18) and RONALD MADZIVANYIKA (19) and GRACIOUS CHANAKIRA (20) and KENIAS MAZHINDU (21) and CHIYANGWA PASIPANODYA (22) and L. P. MAKARANGE (23) and VIOLA GWATI (24) and SOLOMON NYAUDZE (25) and EUGINE ZIMUNHU (26) and SIMON MAFUKA (27) and BONFACE MATEMA (28) and COASTER MUTUKULA (29) and B. ZANDZA AND D. SAMBOKO (30) and PAINOS SHEDZERI (31) and ADIJA MILADZI (32) and DEREDZAI FARIKANI (33) and EVERJOY TAZVIWANA (34) and CHRISTOPHER CHAKANYUKA (35) and MR MUSHAYI (36) HIGH COURT OF ZIMBABWE DEMBURE J HARARE, 20 March & 11 April 2025 Opposed Court Application P. Tsimba, for the applicant T. S. Manjengwa for the 2nd, 3rd, 15th – 18th, 34th & 35th respondents D. E. Kawenda for the 10th respondent No appearances for the 1st, 4th – 14th, 19th – 33th and 36th respondents DEMBURE J: INTRODUCTION 1. On 20 March 2024, the court issued an ex tempore judgment the operative part of which was that the application for leave to withdraw the matter was granted, that the matter having been withdrawn is struck off the roll and that the applicant shall pay the costs of the application on a legal practitioner and client scale. On 3 April 2025, the applicant’s legal practitioners requested full reasons for the judgment. These are they: 2. The applicant approached this court seeking a declaratory order and consequential relief. The application was filed in terms of s 14 of the High Court Act [Chapter 7:06]. The applicant sought an order declaring it the owner and holder of rights, interest and title in stands 24738, 24739, 24748, 24751, 24753, 24758, 24761, 24765, 24766, 24767, 24769, 24772, 24773, 24774, 24775, 24779, 24780, 24782, 24783, 24784, 24896, 24904, 24907, 24909, 2410, 24927, 24832, 24956, 25957, 24962, 24965, 24966, 24968, 24970, 24981, 25004, 25004 and 25013 of Ruwa Township of Subdivision A of Athelney of Galway Estate situate in the district of Goromonzi (“the stands”). The second, third, tenth, fifteenth, sixteenth, seventeenth, eighteenth, thirty-fourth, and thirty-fifth respondents opposed the application. The first, fourth to fourteenth, nineteenth to thirty-third and thirty-sixth respondents did not oppose the application. FACTUAL BACKGROUND 3. The applicant’s case was that on 29 May 2023, it entered into a contract with the first respondent for the development of a certain piece of land situate in the district of Goromonzi called Subdivision A of Athelney of Galway Estate measuring 22 003 hectares and registered under Deed of Transfer No. 12696/2001. The said piece of land was subdivided to create residential stands, including the stands subject to these proceedings. 4. In terms of the said written contract, the applicant was obliged to service the said first respondent’s land, which works included attending to the installation of sewer and water reticulations, construction of roads up to tar level and a bridge and the installation of culverts and storm drains. The first respondent would surrender one hundred and forty-seven (147) stands as payment for the services. The stands are occupied by the second to thirty-sixth respondents. 5. The applicant also alleged that the first respondent represented that there were no claims by any third party over these stands. It was also averred that the applicant is a bona fide owner of the stands in question and that the balance of convenience favours the granting of the declaratur sought. 6. On 20 March 2024, the court, before katiyo J, granted the application in default of the respondents. The default judgment was subsequently set aside before CHITAPI J on 25 July 2024. This resulted in the respondents who are before me filing their opposing papers. The matter was then referred to me for determination on the opposed roll. 7. The second, third, fifteenth, sixteenth, seventeenth, eighteenth, thirty-fourth, and thirty-fifth respondents raised through their opposing affidavits a point in limine that there was a non-joinder of other interested parties, namely Chemplex Housing Cooperative Limited and CAPH Housing Cooperative Limited. They contended that they are members of CAPH Housing Cooperative Limited. They also raised a point that there were material disputes of fact incapable of resolution on the papers and that the applicant ought to have approached the court by way of an action procedure. 8. They further chronicled the long history concerning the dispute over the stands in question. They contended that they occupied the stands as members of the cooperative and that the applicant cannot seek to obtain rights, interest and title in the property they acquired. It was also argued that they were never part of the agreement between the applicant and the first respondent. It was also stated that the said agreement was entered into without the consent of the cooperatives which had an arrangement with the first respondent governing the development of the stands in question. 9. It was further asserted that the agreement, in any case, prescribed the transfer of the 147 stands to the applicant’s nominated purchasers upon completion of the whole project upon receiving a certificate of completion from the local authority. They also pointed out that the applicant had not pleaded that it had completed the work and received the certificate of completion. On that basis, it was argued that the applicant could not, therefore, claim any right to the ownership of the stands. 10. As for the tenth respondent, it was contended that the agreement between the applicant and the first respondent was illegal as there was no prior approval of the Registrar in terms of s 80 of the Cooperative Societies Act [Chapter 24:05]. It was also averred that the applicant could not seek to be declared the owner of the land by virtue of a contract. That the applicant does not hold any real rights to the stands, and they could not seek to fortify rights they do not hold at law. There was also a supporting affidavit of Chemplex Housing Cooperative Limited attached to the tenth respondent’s opposing affidavit. 11. On 4 November 2024, the tenth respondent’s legal practitioners set down the matter for hearing on the opposed roll. On 4 March 2025, the Registrar set down this matter. Following the said set down, the applicant filed a notice of withdrawal seeking to withdraw the application with a tender of wasted costs on 5 March 2025. Since the matter had already been set down for hearing and there being no consent to the withdrawal by all the parties, two issues arose, namely: whether or not leave to withdraw the application could be granted and if so, whether or not costs should be awarded against the applicant on a legal practitioner and client scale. ISSUES FOR DETERMINATION 1. WHETHER OR NOT LEAVE TO WITHDRAW THE APPLICATION SHOULD BE GRANTED SUBMISSIONS MADE ON THE ISSUE 12. Ms Tsimba, counsel for the applicant, submitted that as noted from the record, the applicant filed a notice of withdrawal and no longer wished to pursue the case. She sought leave to withdraw the matter. She further submitted that the first notice of withdrawal was rejected in February 2025 because they had omitted to offer costs. The amended notice was then refiled on 5 March 2025 after receipt of the notice of set down. It was also submitted that the basis of the application for a declaratur was the agreement between the applicant and the first respondent. The applicant was given assurance by the first respondent that they were the owners of the stands. The first respondent consented for the applicant to get the declaratory order. The applicant became aware of the other respondents when they filed for rescission of the default judgment. The applicant consented to the rescission. The applicant now wants to seek a remedy from the first respondent based on the contract with the first respondent. Therefore, the applicant no longer seeks to persist with the application. The applicant is seeking that the matter be withdrawn with an order for costs on the ordinary scale. 13. Mr Manjengwa submitted that the respondents he was representing were not opposed to the withdrawal of the matter save for costs, which must be granted on a legal practitioner and client scale. 14. On the other hand, Ms Kawenda submitted that the tenth respondent was opposed to the application for leave to withdraw the matter. She argued that there was no consent to the withdrawal. It was the tenth respondent who set down the matter. The applicant cannot willy-nilly withdraw this matter. 15. Counsel further argued that she would highlight four issues. The first issue is that in respect of the application before the court, the applicant was represented, and as such, it had the purview of counsel to advise it. What was required for the applicant to do in terms of s 80(1) of the Cooperative Societies Act was not done. The applicant overlooked that whilst in the hands of counsel. Secondly, the applicant is seeking a declarator to be declared the owner of the land but failed to appreciate the provisions of s 14 of the Deeds Registries Act [Chapter 20:05], where ownership is only obtained by way of a deed of transfer. 16. Ms Kawenda also submitted that this application should not have been filed. It is a frivolous application. The other issue is that the applicant is forum shopping. Over the past two years, the cooperative members had been, in one court or the other, being dragged by the applicant. When a point of law arises, the applicant has a tendency to withdraw. At the same time, it still seeks to assert rights over the same land. This matter must be brought to finality. This is now an abuse of court process and cannot go on. How the default judgment was obtained leaves a lot to be desired. If the withdrawal is to be granted, it must be granted with costs on an attorney-client scale. 17. In her reply, Ms Tsimba submitted that what the applicant sought in the declaratur emanated from the development contract. When the court queried the basis of the application for a declaratory order given clause 6.4 of the agreement, counsel conceded that the approach to the court given clause 6.4 was unnecessary. Counsel also accepted that there was no other agreement between the applicant and the first respondent before the court besides the one attached to the application. ANALYSIS OF THE LAW AND THE FACTS 18. The settled principle of the law is that parties are at liberty to withdraw a matter at any time before it is set down for hearing and that once the matter is set down, it can only be withdrawn either with the consent of the other party or the leave of the court. Accordingly, once the matter is set down, its withdrawal is not there for the taking. The law was enunciated by the Constitutional Court in the case of Overjoy Meda v Maxwell Matsvimbo Sibanda & 3 Ors CCZ 10/16 at p 4, where MALABA DCJ (as he then was) had this to say: “While parties may at any time before a matter is set down, withdraw a matter, with a tender of costs the same does not hold true for a matter that has already been set down for hearing. Once a matter is set down, withdrawal is not there for the taking. The applicable principles are set out in Erasmus “Superior Court Practice” B1-304. A person who has instituted proceedings is entitled to withdraw such proceedings without the other party’s concurrence and without leave of the court at any time before the matter is set down. The proceedings are those in which there is lis between the parties one of whom seeks redress or the enforcement of rights against the other. An application for appropriate relief on the grounds of alleged violation of a right is such a proceeding. Once a matter has been set down for hearing it is not competent for a party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of the court. In the absence of such consent or leave, a purported notice of withdrawal will be invalid. The court has a discretion whether or not to grant such leave upon application. The question of injustice to the other parties is germane to the exercise of the court’s discretion. It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one. See - Abramacos v Abramacos 1953 (4) SA 474(SR); Pearson & Hutton NNO v Hitseroth 1967 (3) 591(E) at 593D, 594H Protea Assurance Co Ltd v Gamlase 1971 (1) SA 460(E) at 465G Huggins v Ryan NO 1978 (1) SA 216(R) at 218D Franco Vignazia Enterprises (Pty) Ltd v Berry 1983 (2) SA 290(C) at 295H Levy v Levy 1991 (3) SA 614(A) at 620B Herbstein & Van Winsen “The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa” (5ed) p 750 From the above authorities, it is the law that a court, having satisfied itself that a matter is properly before it, can refuse to grant an application for withdrawal of the matter.” 19. It is common cause that this matter was set down for hearing on 4 March 2025. It is also not in dispute that the purported notice of withdrawal in this case was filed on 5 March 2025. It was, therefore, filed after the matter was set down. Applying the above legal principles, the applicant was required by the law to seek the consent of all the respondents or the leave of the court before purporting to withdraw the matter. The applicant could no longer withdraw the matter willy-nilly. Ms Tsimba confirmed that she did not seek the consent of all the parties to withdraw the matter. The legal practitioners also filed the notice on 5 March 2025 without the leave of the court. The purported notice of withdrawal was, therefore, null and void. 20. The applicant’s counsel accepted the above position and applied to be granted the leave to withdraw the matter at the hearing. As was clear from the submissions, the other respondents represented by Mr Manjengwa did not oppose the withdrawal of the matter. The application for leave to withdraw the matter was only opposed by the tenth respondent. Ms Tsimba gave cogent reasons for the withdrawal of the matter. The applicant intended to pursue contractual remedies against the first respondent, the other contracting party. There would not be any prejudice to the other respondents if that course is taken. There will not be any injustice to talk about or which I perceived would be occasioned by the withdrawal to the respondents before me. I did not, therefore, find any good reason why the withdrawal could not be sanctioned. As stated in the Meda v Sibanda judgment supra, “It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one.” 21. I adopted the above reasoning in this case, as that was what was warranted in the circumstances. I must admit that the greater part of the submissions from Ms Kawenda in opposing the application to withdraw the matter were focused on the merits of the application for a declaratory order itself rather than the application for leave to withdraw the matter. She also argued that there must be finality to litigation and that the applicant had been filing several applications and withdrawing them. Unfortunately, counsel simply made bald assertions on this point. She did not place before the court the said matters or make any references to the case numbers of those numerous matters filed and withdrawn over the same cause of action. While counsel could not lead evidence from the bar, she should have at least referred me to some court record numbers, or at least the opposing papers filed by the tenth respondent would have established such averments. It is trite that bald assertions or unsubstantiated allegations are insufficient to prove one’s case or position. In Delta Beverages (Pvt) Ltd v Murandu SC 38/15, the court made the following remarks, which apply to this case with full force: “I take the time to point out that parties are expected to argue their cases so as to persuade the court to see merit, if any, in the arguments advanced by them. They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.” 22. I, however, noted that there is a notice of withdrawal of a Magistrate's Court summons matter for an eviction order filed under Case No. Hre C-CG2530/23 attached to the other respondents’ opposing papers at p 89 of the record. That single notice could not, even if I consider the record as a whole, create a pattern of litigation to constitute forum shopping as argued by Ms Kawenda. There was no evidence of repeated filing and withdrawals of cases as had been alleged. The tenth respondent did not attach any documentary evidence or made averments to that effect in his opposing affidavit, nor did his counsel refer me to any such cases. The court was, accordingly, satisfied that the application for leave to withdraw the matter ought to be granted. That was the decision it could only make in the exercise of its discretion, given the circumstances. WHETHER OR NOT COSTS ON A LEGAL PRACTITIONER AND CLIENT SCALE SHOULD BE GRANTED SUBMISSIONS MADE ON THE ISSUE 23. Ms Tsimba submitted that the wasted costs should be granted on an ordinary scale as tendered by the applicant. On the other hand, Mr Manjengwa argued that the costs must be awarded against the applicant on a legal practitioner and client scale. He further argued that costs on a higher scale are granted where there is dishonesty and other conduct by a party, such as where the proceedings are frivolous and vexatious. He referred the court to the case of Mahembe v Matambo 2003 (1) ZLR 148. It was further argued that the conduct of the applicant was dishonest. The proceedings were instituted and purported to be served on the respondents. That conduct led to the default judgment. This necessitated the application for rescission, and the costs were reserved. There was pending litigation where the applicant was aware of the legal practitioners for the respondents, yet they claimed that the respondents were represented by Mutonhori & Partners. The applicant knew the respondents were being represented by Wintertons. They were reckless or dishonest to serve on a legal practitioner who was not representing them. This also amounted to malicious conduct. 24. Mr Manjengwa further submitted that in relation to the main matter, the proceedings were frivolous and vexatious. The basis of the application is an agreement between the applicant and the first respondent. In the same agreement, the applicant’s entitlement to payment with stands only accrue after performance of the contract. These proceedings were commenced when there was no performance. He also submitted that the last point relates to a litigant who lacks seriousness in his approach. He also argued that he wrote to the applicant’s legal practitioners to take their matter seriously and to take further steps to prosecute their case. The withdrawal was made when the matter was set down for hearing. 25. Ms Kawenda submitted that she would adopt most of the submissions made by Mr Manjengwa. She submitted that the same issues she raised in opposition to the application for withdrawal would still apply in respect of costs. She further argued that over a year of trying to put reason to the applicant, the applicant had been adamant that it has a case. Meetings have been held over the matter, and the burden cannot continue lying with the respondent. She also queried how the default judgment was obtained and said that it also leaves a lot to be desired. She finally argued that costs on a higher scale are warranted if the withdrawal of the matter is granted. ANALYSIS OF THE LAW AND THE FACTS 26. It is a settled principle of the law that the issue of costs is within the discretion of the court. See Hebstein & Van Winsen in The Civil Practice of the High Court and the Supreme Court of Appeal of South Africa, 5 ed: Vol 2 p 954, where it was stated as follows: “The award of costs in a matter is wholly within the discretion of the Court, but this is a judicial discretion and must be exercised on grounds upon which a reasonable person could have come to the conclusion arrived at. The law contemplated that he should take into consideration the circumstances of each case, carefully weighing the various issued in the case, the conduct of the parties and any other circumstances which may have a bearing upon the question of costs and then make such order as to costs as would be fair and just between the parties...” 27. On when the court should award costs on a legal practitioner and client scale, in Crief Investments (Pvt) Ltd & Anor v Grand Home Centre & Ors HH 12/18 MUSHORE J restated the legal position as follows: “The learned authors According to the leading authority as to attorney and client costs in South African law, Nel v Waterberg Landbouwers Ko-operative Vereeninging 1946 AD 597 at 607 where his Lordship Tindal JA stated: “The true explanation of awards of attorney and client costs not authorized by statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the courts in case considers it just, by means of such order, to ensure more effective than it can do by means of judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation .” AC Cilliers in The Law of Costs 2nd ed p 66, classified the grounds upon which the court would be justified in awarding the costs as between attorney and client: (a) Vexatious and frivolous proceedings (b) Dishonesty or fraud of litigant (c) Reckless or malicious proceedings (d) Litigant’s deplorable attitude towards the court (e) Other circumstances In essence, the cases establish a position that courts should award costs at a higher scale in exceptional cases where the degree of irregularities, bad behaviour and vexatious proceedings necessitates the granting of such costs, and not merely because the winning party requested for them. Costs should not be a deterrent factor to access to justice where future litigants with genuine matters which deserve judicial alteration. In awarding costs at a higher scale the courts should therefore exercise greater vigilance.” [my emphasis] See also Mahembe v Matambo supra. 28. There was no issue whether the costs should be awarded. The applicant tendered such costs but on the ordinary scale of party and party. The only issue that arose was whether such costs had to be granted on a legal practitioner and client scale, as argued by the respondents. I found the costs on a legal practitioner and client scale to be justified in the circumstances. 29. Applying the principles of law above, there was conduct which warranted that the applicant be mulcted with an order for such punitive costs. The applicant sought a declaratory order that it be declared the owner of the stands in question. The basis of such a claim was the contract for the land development it concluded with the first respondent. Counsel for the applicant conceded that there was no other agreement save for the one at pp 24 – 28 of the record. Clause 6.4 of the said contract stated: “The owner shall transfer stands to the contract’s nominated purchasers of the allocated 147 stands upon completion of the whole project, upon receiving a certificate of completion from the local authority.” It is clear that the applicant would only be entitled to claim ownership of the stands upon full performance of its obligations. The applicant did not make any averments in the founding affidavit that it completed the project as agreed and was, therefore, entitled to obtain title over the stands. When the court inquired about this, Ms Tsimba was quick to concede that, given the provisions of clause 6.4 of the contract, the application was unnecessary. Indeed, it was completely unnecessary. 30. I agree with Mr Manjengwa that this application was manifestly groundless or utterly hopeless and without foundation. In other words, it was frivolous and vexatious. It constituted a blatant abuse of court process and needlessly made the respondents suffer unnecessary litigation expenses. They have been put out of pocket unnecessarily and should be allowed to recover their wasted costs. 31. The other reason for awarding the punitive costs was that the applicant did not act diligently and with the seriousness expected in pursuing this case. Litigants who institute legal action must do so to seek justice. They cannot be expected to clog the system unnecessarily. This is why the rules of court contain provisions meant to dismiss matters or applications for want of prosecution. It is common cause that it took the tenth respondent for this matter to be set down for hearing. He is the one who requested the setting down of the matter. The notices of opposition by the respondents were all filed in August 2024, and the applicant did nothing thereafter to bring the matter to finality. Ms Tsimba further claimed that she filed a notice of withdrawal in February and that it was rejected, but again did not immediately rectify the anomaly. It is clear that the applicant was sprang into action to file the purported notice of 5 March 2025 because of the set down of this matter. Such a cavalier approach to complying with the court rules, which now emphasise speedy prosecution of matters, showed a complete disdain for the rules of court and the court processes. The applicant’s conduct does not, therefore, deserve any kid-glove treatment. Costs on a punitive scale were warranted. 32. Having found the conduct of the applicant worthy an order for costs on a legal practitioner and client scale on the basis of the above reasons, it became merely academic to probe the conduct of the applicant or its legal practitioners, leading to the default judgment as called for by Mr Manjengwa and Ms Kawenda. DISPOSITION 33. For the above reasons, the court entered the judgment as aforestated DEMBURE J: …………………………………………… Hungwe Attorneys, applicant’s legal practitioners Wintertons, 2nd, 3rd, 15th -18th, 34th & 35th respondents’ legal practitioners Wilmot & Bennett, 10th respondent’s legal practitioners