CHEDA J: This is an urgent application seeking
to restore applicant to the peaceful and vacant possession of number 28 Fourth
Street, Ross Camp, Bulawayo.
The brief background of this matter
is that applicant is a Detective sergeant in the police force while first
respondent is the Officer Commanding Bulawayo camps. Second respondent is the Officer commanding,
Bulawayo province, third respondent is the Commissioner General of Police and
the fourth respondents are Co-Ministers of Home Affairs of which all the
parties fall under. Applicant was
charged for contravening paragraph 14 of the Schedule of the Police Act
[Chapter 11:10]. He was tried, convicted
and sentenced to 8 days imprisonment.
He was dissatisfied with that
decision and filed an appeal with this court under case HC number 01/10 which
appeal is pending. A lot of activities
have since taken place between applicant and either one or all the respondents
which ultimately led to applicant's eviction from his residence at Ross Camp,
Bulawayo.
Applicant's argument is basically premised
on three points. The first point is that
it was unlawful for respondents to evict him without a lawful court order.
Secondly, he is presently on bail at
the Magistrate court and one of the bail conditions is that he should reside at
the address where he has been evicted from.
The third and final argument is that
the decision for his conviction is pending before this court and as such if he
is evicted he will be prejudiced in the event of the success of his appeal.
Respondents through their representative
Mr Musika have argued that:
(1)
the appeal before this court is
unproceduraly filed and as such there is no appeal at all pending before the
court, and
(2)
that third respondent has a right to
remove applicant from its premises as the allocation of accommodation is not
part of the conditions of service. It is
therefore only a privilege and not a right.
Applicant concedes that third respondent may be correct in holding the
view that the accommodation given to him was not a right but a privilege. However the argument does not end there. The correct
legal position, with regards to spoliation is that a person in possession of
property or right over a thing is protected irrespective of his status with
regards to ownership. Applicant has no
real right over respondent's property, but, is in possession thereof and is
legally protected from being deprived of such ownership without due process of
law. All the possessor needs to do is to
prove to the court that:
(1)
at the relevant time he was in
peaceful and undisturbed possession,
(2)
that he derived some benefit from the
said thing/property, and.
(3)
that respondent's action was unlawful, see Krammer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948(1)
SA 748 (C)
Respondent's actions of evicting applicant from their residence amounted
to spoliation as they had no court order to do so.
Applicant is on bail pending trial on a separate matter before the
Magistrate court. One of bail conditions
is that he should reside at the address from which he has been evicted from.
The order was made by the magistrate court which is a competent
court. If applicant vacates this
residence without the order of the said court altering the same it means that
he will have breached one of his bail conditions and the court will be entitled
to deprive him of his liberty. For that
reason his removal without the court's order will be unlawful.
The third point is that he has a matter pending appeal before this
court. Mr Musika argued that the appeal is not properly before the
court. This may be so and it may be a good
argument, but, what he should bear in mind is the fact that this court is now
ceased with the matter and as such can not determine the question of the
irregularity of the appeal before it is set down for hearing. This question should be raised during the
appeal. As of now, the issue is the
effect of allowing the eviction of applicant before the appeal is heard and
finalised.
I find that there is indeed merit in applicant's apprehension that in
the event of applicant succeeding in his appeal, the success would be brutam
fulmen.
Taking into account all the factors in this matter, it is clear to me
that respondents acted unlawfully in this matter. Applicant has made a good case for himself
and is entitled to the relief sought.
The application accordingly succeeds and the following order is made:
It is ordered that:
Pending determination of applicant's appeal being matter no. HC 01/10
(1)
Respondents immediately upon receipt of this order
restore the Applicant to the peaceful and vacant occupation of Number 28 Fourth
Street, Ross Camp, Bulawayo.
(2)
In the event that the Respondents have given
occupation of the said property to any third party, they be ordered to
immediately upon service of this order remove the said occupant. Failing which the Deputy Sheriff, Bulawayo or
his lawful Deputies be and are hereby authorized and directed to evict the said
occupant and place applicant into vacant occupation.
(3)
The Respondents be and are hereby ordered to give
absolute peace to Applicant in that they must not threaten, harass, victimize
or do any other action which can be construed as disturbing the peace of
Applicant and members of his family in occupation of the said property.
(4)
This Provisional Order to be served by the Deputy
Sheriff or his lawful assistants upon the Respondents or any lawful persons
found present at Mzilikazi Police Station, Bulawayo.”
Cheda J.................................................................
Messrs
Dube-Banda, Nzarayapenga and partners, applicant's legal
practitioners
Civil Division,
Attorney-General's office, respondents' legal
practitioners
