CHATUKUTA
J: The applicant sought and was
granted a mandament van spolie. The judgment was handed down on 8 September
2009 with reasons. However, the
respondent has approached me for written reasons for my judgment. The following are my reasons.
The
applicant, through its director, one Heinrich von Pezold made the following averments
in the founding affidavit. The applicant
is the owner of and carries farming operations on Frogmore, situate in the
district of Mazowe. The farm was not
acquired by the State and a number of orders have been issued by the High Court
confirming this.
On 29
August 2009, the respondent came to the farm and demanded keys to the gate and to
the house on the farm. He showed
Heinrich von Pezold, a copy of a letter purporting to be an instruction to the
applicant to cease farming. Pezold
refused to give the respondent the keys and also refused to let him move onto
the farm. The respondent left the
farm. He however, left behind seven employees
sitting under a tree on the farm. At the
time when the application was made the seven were still on the farm although
they were not interfering with the applicant's farming activities.
The
applicant contended that it had been in peaceful possession of the farm until
the respondent left seven employees. Mr. Shekede, for the applicant,
submitted that the respondent left his personnel without an order of court or
the applicant's consent. It is on this
basis that it sought a mandament van
spolie.
The
respondent opposed the application. Mr.
Mlotshwa, for the respondent, raised a point in limine that the application was not urgent because the
respondent's conduct did not amount to spoliation. He submitted that the determination of the
preliminary issue would entail determination of the merits of the application. On that basis, I considered it expedient to
deal with the merits.
In an application of this nature, the
applicant must establish on a balance of probability that:
(a)
it was in peaceful possession of the property; and
(b)
the possession was unlawfully interrupted by the 2nd
respondent
(See Botha & Anor v Barret 1996 (2)
ZLR 73, van t'Hoff v van t'Hoff & Ors (1)1988 (1) ZLR 294
(HC), Chisveto v Minister of Local
Government and Town Planning 1984 (1) ZLR 248 (H) and Karori (Pvt) Ltd & Anor v Brigadier
Mujaji HH 23-07.)
Mr. Mlotshwa
conceded that the applicant was in peaceful possession of the property. He conceded that the respondent had left
seven employees on the farm. He however,
contended that this did not amount to unlawful deprivation of property. He referred me to The Law of Property, Silberberg and Schoeman, 3rd Ed, (Silberberg) where it is observed at
p146 that
“8.2 A mandament van spolie is aimed only at the recovery of lost
possession and does not lie where there is mere disturbance of possession or a
threat that possession will be disturbed.
In these latter circumstances the possessor may apply for a prohibitory
interdict instead…”
The only issue for determination is
therefore whether or not the respondent's conduct amounted to deprivation of
property.
It appears to me that occupation of
the farm by the respondent goes beyond “a mere disturbance”. Mr
Mlotshwa did not substantiate why the respondent considered his conduct in
issue as having been “a mere disturbance”.
The act of leaving behind seven employees coupled with the indications
by respondent that he intended to take occupation of the homestead and the
entire piece of land allocated to him amounts, in my view, to
dispossession. The applicant can no
longer claim to be in control of that piece of land currently occupied by the
respondent's employees. Had the
respondent left the farm with all his personnel, then one would have classified
his visit to the farm as a mere disturbance as envisaged in Silberberg.
It also appears that Mr Mlotshwa was selective in his
reference to Silberberg. At page 139-140 of Silberberg it is observed that:
“A possessor need not have been
dispossessed of the whole thing before he is entitled to claim a spoliation
order. Even where he has been deprived
of possession of only a part thereof, is he entitled to this relief.”
The
same observations were made in Bennett
Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) where it was
held that a disturbance of possession amounts to spoliation. ADDLESON J observed, at p233, as follows:
“The possession on which he relies
need not be of the whole of the property and he need not have lost the whole of
that property at the hands of the invader before he is entitled to claim a
spoliation order. A disturbance of possession, without deprivation of the whole
of it, is sufficient. See Van Rooyen en
'n Ander v Burger, 1960 (4) SA 356 (0) at pp. 362 - 3; confirmed on appeal
in 1961 (1) SA 159 (O).” (See also The
Civil Practice of the Magistrates Court in South Africa, Jones and Buckle 8th
Ed at p98-99.
The respondent did occupy part of
the farm. It appears from the above
authorities that it is irrelevant that a small the part of the farm is
occupied. Any such occupation amounts to
dispossession. It is my view that the
applicant has therefore established its entitlement to the relief sought.
In the
result, it is ordered that:
1.
A mandament van
spolie be is hereby granted restoring the status quo ante which prevailed
prior to 29 August 2009 and to the respondent's occupation of a certain piece
of land, known as Frogmore and situate in the District of Mazowe and that such
restoration be achieved by the eviction of the respondent and all persons
holding occupation through him from the property in question.
2. That respondent be and is hereby
ordered to pay the costs of suit.
Wintertons, applicant's legal practitioners
Antonio, Mlotshwa
& Co, respondent's legal practitioners
