Urgent Chamber Application - Spoliation
MAFUSIRE J: On 13 June
2014 the applicant filed an urgent chamber application for an order
of spoliation. The order was sought in respect of a farm called Glen
Avilin Estate (hereafter referred to as “the farm”).
What triggered the application
were the events that had occurred on the farm on 12 June 2014.
Applicant's version of events was set out in its founding papers.
Except for the fourth respondent, all the others filed opposing
affidavits. I heard the application on 20 June 2014. I dismissed it
with costs for lack of merit. The applicant has now sought written
reasons for my decision.
The facts presented by the
applicant in its founding papers were these.
It is a private voluntary
organisation. It looks after thousands of orphans and other
vulnerable children. For its operations, it used to rely mainly on
donor support. However, that support had dwindled. It now relied
increasingly on farming and other income generating activities being
carried out on the farm. Applicant had been on the farm since 1983.
However, on 12 June 2014, officials of respondents 1, 2 and 3 called
applicant's director, one Gary Birditt (hereafter referred to as
“Mr Birditt”) to come to the farm. He came in the company of
applicant's counsel, Mr Mureriwa.
According to Mr Birditt it was
apparent the respondents were planning a major event. There were too
many Government officials. Armed personnel were also present. A shed
had been erected. Chairs and tables had been arranged. On enquiry, Mr
Birditt had been advised that the farm had been allocated by
Government to the first respondent in terms of an offer letter. The
planned event was to officially hand over the farm to the first
respondent.
Mr Birditt and Mr Mureriwa had
protested. They said the intended takeover would be illegal. However,
the respondents had remained resolute. The ceremony would proceed. Mr
Birditt and the lawyer had left.
On the following day the
application had been filed.
The order of spoliation was being
sought on the basis that at all relevant times the applicant had been
in peaceful and undisturbed possession of the farm but that on 12
June 2014 the respondents had forcibly taken it over, leaving the
applicant's employees and students on vocational training
hopelessly wandering about. It was also alleged that the applicant's
operations had ceased owing to the takeover. In their opposing
affidavits the respondents strenuously denied that they had despoiled
the applicant. They maintained that the events of 12 June 2014 had
merely been a once-off ceremony for the purpose of handing over the
ownership of the farm to the first respondent symbolically. Mr
Birditt had been invited to the ceremony. He had come with his
lawyer. However, both had left before the proceedings had even
started. The respondents said it had been a peaceful ceremony. No
force had been used or shown. Everybody had left after the
proceedings had been concluded. The temporary shelter had been
dismantled. The respondents said the farm had been compulsorily
acquired by Government way back in May 2002 in terms of the land
reform programme. Over the years it had become derelict due to
neglect. Applicant's donors had dwindled. The farm had become prone
to illegal land invaders from the surrounding villages. On 10
February 2014 Government had officially allocated the farm to the
first respondent. However, neither Government nor the first
respondent had yet taken occupation. It was said an application to
evict the applicant from the farm was pending. But guards had been
posted to the farm for security. They had been deployed in February
2014. The applicant had raised no issue over the presence of the
guards. They interfered with no one.
At the hearing more facts came to
light.
The applicant conceded the
presence of the respondents' security guards on the farm since
February 2014. It said at any given time there would be two guards
around. Applicant also conceded that other than the security guards
none of the respondents' officials had remained on the farm.
During submissions Mr Mureriwa
said the application for spoliation was in fact predicated on the
presence of those guards.
Before argument on the merits the
respondents raised some points in limine.
The first was that the matter was
not urgent because a similar application had been made in 2011 and
that it had been dismissed.
The second point was that the
matter had become res judicata by virtue of that previous
application. However, I dismissed both points. It was conceded that
the application in 2011 had been in respect of a different farm
altogether even though their circumstances seemed the same. With
particular regard to the question of urgency I dismissed it because
the first respondent had expressly conceded that a spoliation
application is generally urgent by its very nature. Furthermore, the
application was predicated on the events of 12 June 2014. If the
conduct of the respondents complained of amounted to spoliation then
there would be no question that the matter was urgent.
The third point in limine was
that Mr Mureriwa should be disqualified from representing the
applicant. He had been present at the scene. He had witnessed the
events.
According to the respondents'
submissions, it was Mr Mureriwa himself who had in fact engineered
the dispute. On top of that he had filed a supporting affidavit to
the proceedings. He had become so intimately involved in the affairs
of his client that his impartiality and sense of judgment had become
compromised. Reference was made to the case of Core Mining and
Minerals Resources (Pvt) Ltd v Zimbabwe Mining Development
Corporation and Ors 2011 (1) ZLR 22 (H). Therein the court had
disbarred counsel for some of the respondents from representing them
at the hearing. He had had extensive and intimate dealings on behalf
of those respondents and had aligned himself so closely with their
affairs. On top of that those respondents' affidavit had been
commissioned by his firm.
I dismissed the respondents'
third point in limine.
It was common cause that Mr
Mureriwa had questioned and challenged the respondents' presence on
the applicant's farm on the day in question. He had filed an
affidavit supporting Mr Birditt's version of events. Mr Birditt's
affidavit had touched on the nature and extent of Mr Mureriwa's
involvement. However, I took the view that Mr Mureriwa's nature
and extent of involvement in the applicant's affairs on 12 June
2014 was in no way comparable to that of counsel in Core Mining and
Mineral Resources. In my view, there is no rule of thumb that says a
lawyer is automatically disbarred from representing his client in
court proceedings where he was a witness to the events that
subsequently form the subject matter of those proceedings, or where
he has filed an affidavit confirming his involvement and supporting
his client's version of events. Every case must depend on its own
set of circumstances. Nonetheless, and in my view, a lawyer who finds
himself in Mr Mureriwa's situation must consider seriously the
wisdom of wearing the two hats; that of being counsel for the client
and that of being a witness for the client. In my view, it would be
more prudent to let someone else conduct the court proceedings where
the lawyer has been seriously involved in the affairs of the client
giving rise to the litigation. This is so to avoid a conflict
situation. The lawyer should at all times avoid clouding his sense of
judgment.
In this matter, it is my earnest
view that the precipitous manner in which Mr Mureriwa brought these
proceedings betrayed the invidious position of his situation.
On the merits it seemed true that
his sense of judgment had somewhat been impaired. He had challenged
the presence of the respondents' representatives on the farm on the
day in question. The farm is somewhere in Shamva, some 10km away from
Bindura. On being fobbed off by the respondents' representatives Mr
Mureriwa had rushed back to his offices in Harare, more than 80km
away. By the following day the urgent chamber application was all
ready and complete. It was filed on 13 June 2014. In my view the
application was completely devoid of merit.
No wonder during the proceedings
the applicant shifted ground and sought to rely on facts that had not
formed part of the application. It sought to rely on the presence of
the security guards on the farm to found an act of spoliation.
The remedy of spoliation or
mandament van spolie is designed to restore at once possession that
has been deprived unlawfully: see SILBERBERG AND SCHOEMAN'S The Law
of Property, 5th ed, para 13.2.1.2 at p 288. See also Kama
Construction (Pvt) Ltd v Cold Comfort Farm Co-operative & Ors
1999 (2) ZLR 19 (SC). The applicant must show that he was in peaceful
and undisturbed possession of the thing and that he was unlawfully
deprived of such possession: Kama Construction (Pvt) Ltd, supra, and
Botha & Anor v Barrett 1996 (2) ZLR 73 (S), at p 79D – F.
Spoliation is a quick remedy. Its rationale is to prevent anarchy in
society: see Muller v Muller 1915 TPD 29, at p 31. People must not
resort to self-help each time they want to recover things they feel
belong to them and which may be in the possession of another.
In Shoprite Checkers Ltd v
Pangbourne Properties Ltd 1994 (1) SA 616 (W), the rationale was
expressed this way1:
“All of this of course is based
upon the fundamental principle that no man is allowed to take the law
into his own hands and that no one is permitted to dispossess another
forcibly or wrongfully and against his consent 'of the possession
of property, whether movable or immovable' and that if he does so
'the Court will summarily restore the status quo ante and will do
that as a preliminary to any enquiry or investigation into the merits
of the dispute.'”
Spoliation is aimed only at the
recovery of lost possession. It does not lie where there has been a
mere disturbance of possession or a threat that possession will be
disturbed; SILBERBERG AND SCHOEMAN, supra, para 13.2.2 at p 308. It
implies a deprivation and not a mere disturbance of possession; para
13.2.1.3 (b) at p 295. See also Van Rooyen en 'n Ander v Burger
1960 (4) SA 356 (O), at p 363B – F.
I am alive to the fact that an
illicit dispossession of a right, whether corporeal or incorporeal,
can be protected by an order mandament van spolie: Kama Construction
(Pvt) Ltd, supra, at p 22. What is protected is the quasi-possession
of a movable or immovable incorporeal. Thus in Sebastian & Ors v
Malelane Irrigation Board 1950 (2) SA 690 (T) a spoliation order was
granted for the unlawful interruption of water supplies. In Naidoo v
Moodley 1982 (4) SA (T) a spoliation order was granted for the
interruption of the flow of electricity. In Beukes v Crous 1975 (4)
SA 215 (NC) and Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989
(1) SA 508 (A) orders were granted to restore the right of passage,
i.e. a servitude. In Tigon Ltd v Bestyet Investments (Pty) Ltd 2001
(4) SA 634 (N) an order was granted restoring the name of a
shareholder of a company back in the share register where such name
had been removed unilaterally. Finally, in the case of Xsimet (Pty)
Ltd v Telkom SA Ltd 2002 (3) SA 629 (C) an order was granted to
restore the applicant's telephone connectivity and bandwidth system
that the respondent, the service provider, had unlawfully terminated.
In casu the applicant was neither
despoiled of the physical possession of the farm nor deprived of its
right of possession of it. The once-off and brief presence of the
respondents on the farm on 12 June 2014 was to handover to the first
respondent symbolically the ownership, not possession, of the farm.
Applicant's physical or mental possession of the farm was not taken
away. Applicant was still on the farm. On a balance of probabilities
I chose to believe the respondents' version of events. Once the
symbolical handover was over the respondents had left. At worst, the
ceremony was a disturbance of possession rather than a deprivation of
it.
Spoliation is not available in
such circumstances.
Whether the applicant could
interdict the respondents from coming onto the farm before they had
done so is besides the point. The event was over and done with by the
time the applicant brought its application. There was no longer
anything to interdict.
But as it prepared its papers for
the order of spoliation, it seems the applicant was somewhat confused
on the choice of remedy.
After laying out the foundation
for a spoliation order it also went on to lay out some foundation for
an interdict. Among other things, the applicant alleged a prima facie
right. It alleged an actual harm suffered; the absence of no other
effective remedy; the balance of convenience being in its favour and
the fear of an irreparable harm. All these are factors for an
interlocutory interdict. In the result the applicant sought a
provisional order the draft of which was clearly a hybrid. The final
order sought an interdict. The provisional order sought an order of
spoliation.
In my view, the applicant's
approach was defective. An order of spoliation is a final order. It
does not have an interlocutory nature: see Mankowitz v Loewenthal
1982 (3) SA 758, at p 767F - H.
The two elements of spoliation,
namely, peaceful and undisturbed possession and the act of
spoliation, have to be proved on a balance of probabilities. On this
point the learned authors SILBERBERG AND SCHOEMAN, supra, para
13.2.1.3 at p292 say:
“These two facts have to be
proved on a balance of probabilities: a prima facie case will not
suffice, the mandament van spolie being a final order.”
In a footnote, and after citing
several case authorities on the point, the learned authors say:
“Kleyn2
emphasises this aspect very clearly in his discussion of the
Aussenkehr case. The mandament is a unique remedy that falls within a
category of its own and should not be confused with an interdict. The
most important difference between the mandament and an interdict is
that the merits are not considered where the mandament is claimed,
whereas the merits are extremely important when an interdict is
sought in that a clear right has to be established.”
It is for the above reasons that
I dismissed the application.
Scanlen & Holderness, applicant's legal practitioners
Mutamangira & Associates, first respondent's legal
practitioners
Civil Division of the Attorney-General's Office, legal
practitioners for the third and fourth respondents
1. At p 619H, per ZULMAN J
2. KLEYN 1989 DE Jure 154
