MUSAKWA
JA: This
is an appeal against the whole judgment of the High Court (the court
a
quo)
wherein it granted a spoliation order sought by the first respondent
against the appellant.
FACTS
The
appellant and the first respondent are companies incorporated in
terms of the laws of Zimbabwe. The first respondent is the owner of a
certain piece of land, being two thirds shares of the Remaining
extent of Teviotdale (hereinafter referred to as 'part of the
farm') held under Deed of Transfer 8935/90. The appellant is the
registered holder of a mining block consisting of ten gold reef
claims named Forest K of Forest View (hereinafter referred to as
'Forest K claims') which block is situated on the respondent's
farm.
The
first respondent filed an urgent chamber application for a spoliation
order in which it sought that the appellant and one Kumbirai Kangai,
be ordered to return peaceful, quiet, undisturbed possession,
occupation and use of two thirds shares of the remaining extent of
Teviotdale.
In
the application, the first respondent averred that sometime in April
2021 the appellant invaded part of its farm.
In
resisting the application, Kumbirai Kangai deposed to an opposing
affidavit in which he claimed to be the director of the appellant. He
further averred that the appellant was the registered holder of ten
gold reef claims situated on the first respondent's farm.
A
provisional order was granted only against Kumbirai Kangai on 21
April 2021 and subsequently confirmed on 26 January 2022 under case
number HC1604/21.
It
is not clear how the order was only granted against Kumbirai Kangai.
On
9 February 2022, the second respondent executed the order granted
under HC1604/21 by serving a notice of eviction on Kumbirai Kangai's
employee, one Tongesai Maregere.
On
14 February 2022, the second respondent evicted Kumbirai Kangai and
all those claiming occupation through him and restored possession to
the first respondent.
On
14 February 2022 at around 5.00pm, the first respondent instructed
its guards to clear off a squatter camp, which clearance was carried
out and the squatter camp was burnt down. On 15 February 2022, the
first respondent further deployed a bulldozer and grader to restore
the degraded land by filling holes that had been dug and knocking off
stone and mortar structures that had been erected.
At
around 3.00pm the bulldozer operator was informed by the appellant's
employees that he could not enter the site as they were already
fencing the site off.
The
first respondent engaged legal counsel regarding the spoliation by
the appellant.
It
turned out that on 14 February 2022 an application for an injunction
against the first respondent had been filed by the appellant with the
Provincial Mining Director for Mashonaland Central Province and
served on the first respondent's legal practitioners.
The
first respondent further averred that the appellant failed to await
the outcome of the application for injunction and resorted to
self-help and despoiled it of its property.
The
first respondent thus prayed that it be restored occupation and use
of part of the farm and that the appellant be evicted therefrom.
The
appellant and Kumbirai Kangai opposed the first respondent's
application.
The
first respondent however, amended its draft order at the hearing and
deleted the name of Kumbirai Kangai. As such, only the appellant
opposed the application.
In
its opposing affidavit the appellant raised a preliminary point to
the effect that the matter was not urgent as the first respondent had
been aware of the mining claims since 2013. Reference was made to its
opposition to the application under HC1604/21, stating that it had
claims over the same land belonging to the first respondent.
The
appellant further averred that it possessed a certificate of
registration of a mine situated on part of the farm and that the
first respondent had not done anything to challenge the appellant's
possession of part of the farm.
It
also averred that the eviction order granted under HC1604/21 was made
against Kumbirai Kangai and not against it. The appellant thus
averred that it was not evicted from the property as the first
respondent did not institute any action for its eviction.
On
the merits, the appellant averred that the first respondent was
seeking to evict it through the back door and by way of an urgent
chamber application.
The
appellant further averred that the first respondent was never in
peaceful, quiet and undisturbed possession and occupation of part of
the farm.
In
addition, it contended that it had issued a notice of application for
an injunction in terms of section 354(1) of the Mines and Minerals
Act [Chapter
21:05]
on the first respondent on 10 February 2022.
The
appellant further averred that its certificate of registration of the
mining claims was still valid and as such, it had a right to carry
out mining activities on the farm.
The
appellant also averred that the provisional order granted in favour
of the first respondent had been granted by the consent of the
parties in the hope of reaching a settlement.
Further,
the appellant contended that it was not before the court when the
order evicting Kumbirai Kangai was granted and as such it could not
be evicted on the basis of such eviction order as it was a separate
legal persona from its director Kumbirai Kangai.
The
appellant maintained that its structures and equipment situated on
part of the farm had not been demolished by the first respondent and
that such action showed that the first respondent was never in
possession of the piece of land where the appellant carried out its
mining activities.
In
addition, it contended that the first respondent could not seek to
enter the appellant's site to evict it after the second respondent
had left.
The
appellant thus prayed for the dismissal of the first respondent's
application as it averred that the application was simply one of
eviction made under the guise of a spoliation application.
DETERMINATION
BY THE COURT A QUO
The
court a
quo
found
that the matter was urgent. It reasoned that the appellant had not
established that it was in occupation of the farm since 2013 whereas
the first respondent had established that it had obtained an extant
order under HC1604/21 over the same portion of land and from which
the application for spoliation arose.
The
court a
quo
found that the first respondent acted expeditiously in seeking the
spoliation order as the eviction by the second respondent had been
carried out on 14 February 2022 and the appellant had started the
process of fencing off the area in dispute on 15 February 2023
prompting the first respondent to seek the spoliation order on 17
February 2023, three days later.
The
court a
quo
thus dismissed the preliminary point raised by the appellant.
On
the merits, the court a
quo
found
that following the execution of the order granted under HC1062/22 the
first respondent was left in peaceful and undisturbed possession of
that part of the farm.
The
court a
quo
further found that when the appellant proceeded to occupy the land
and fenced it and barred the first respondent from accessing part of
the farm, it was forcibly depriving the first respondent of part of
the farm.
The
court a
quo
noted that the fact that the appellant may have been in occupation of
part of the farm and was a holder of a certificate of registration of
mining blocks was a different issue altogether as the certificate of
registration related to a different farm and not the farm at the
centre of the dispute.
The
court a
quo
further noted that the appellant's certificate of registration was
for a mine called Forest K situated on Forest View and not two thirds
share of the remaining extent of Teviotdale.
The
court a
quo
noted that having realised that its director Kumbirai Kangai had been
lawfully evicted, the appellant decided to occupy part of the farm in
dispute as the order made under HC1604/21 had not been made against
it.
In
the result, the court a
quo
found that the first respondent had established that it was despoiled
of part of its farm by the appellant. The court ordered the appellant
to restore the first respondent's status quo
ante
prior to the spoliation and authorized the second respondent to
eject, demolish any structures and raze down fencing erected by the
appellant and all those claiming occupation through it and that the
appellant pay costs of the application.
Aggrieved
by this decision the appellant noted the present appeal on the
following grounds of appeal:
“GROUNDS
OF APPEAL
1.
The court a
quo
grossly misdirected itself in finding that the execution of the order
under HC1604/21 left 1st
respondent in peaceful possession of the disputed mining location yet
Appellant was not a party to that cause and considering that
Appellant's employees, accommodation and mining equipment remained
on the registered mining location.
2.
The court a
quo
grossly misdirected itself in finding that appellant was not in
occupation and possession of the mining location in the face of
evidence that it had been in occupation of the disputed land since
2013.
(a)
A fortiori,
the court a
quo
erred in finding that the issue of the Appellant's occupation of
the mining location pursuant to a certificate of registration was
inconsequential to the spoliation cause.
3.
The court a
quo
erred in affording first respondent final ejectment relief in an
urgent spoliation cause in circumstances where such relief was
neither justified nor motivated in the first respondent's founding
papers.
4.
As an alternative to ground number 3 above, and in granting the
eviction order, the court a
quo
erred;
(a)
in finding without rational or legal justification that Appellant's
registered mining location was not located within first Respondent
farm; and
(b)
in ordering Appellant's eviction without regard to the pending
proceedings in terms of section 354(1) of Mines and Minerals Act
[Chapter
21:05].
WHEREFORE
appellant
prays for the following relief;
(i)
That the appeal succeeds with costs.
(ii)
That the judgment of the court a
quo
be and is hereby set aside and substituted with following:
'The
application be and is hereby dismissed with costs.'”
ISSUE
FOR DETERMINATION
One
issue arises from the grounds of appeal and submissions made by
counsel before this Court. The issue for determination is as
follows:
Whether
or not the first respondent was in peaceful and undisturbed
possession of part of the farm and whether the appellant despoiled
the first respondent of such possession.
THE
APPELLANT'S SUBMISSIONS ON APPEAL
Mr
Magogo,
for the appellant submitted that when the order under HC1604/21 was
executed by the second respondent, Kumbirai Kangai and his employees
were evicted as evidenced by the Sherriff's return.
Counsel
argued that after the eviction, the appellant's employees remained
on the first respondent's part of the farm and hence decided to
fence off the portion of the farm which they were occupying.
Counsel
thus maintained that the appellant was already in possession of part
of the farm and as such, could not have despoiled the first
respondent of any peaceful possession which it never had.
Mr
Magogo
also argued that the eviction order in HC1604/21 did not relate to
the appellant, but to Kumbirai Kangai and others acting through him.
Counsel
further argued that since the appellant was not a party to the
proceedings in HC1604/21, the court a
quo
erred when it granted the eviction order against it.
He
further argued that the court a
quo
failed
to establish a link
between
the appellant and Kumbirai Kangai and that it made an error by making
a determination that when eviction was carried out on Kumbirai
Kangai, the appellant was also evicted.
With
that counsel maintained that the appellant did not despoil the first
respondent of peaceful possession of part of the farm.
As
regards the effect of the orders in HC1604/21, counsel submitted that
the appellant had no problem with removing the fence it erected as
the relief it sought on appeal was that there be co-possession of the
farm between it and the first respondent.
Counsel
further submitted that the demolition of its structures presupposes
that the rights of the parties have been effectively resolved.
At
the end of his submissions counsel, however, conceded that the first
respondent had peaceful possession of part of the farm.
FIRST
RESPONDENT'S SUBMISSIONS ON APPEAL
Ms
Saunyama,
for the first respondent argued that the question of whether or not
it was in peaceful possession of part of the farm prior to 14
February 2022 could not be disputed as the appellant had made a
concession that the first respondent had possession of part of the
farm.
Counsel
submitted that the act of erecting a fence by the appellant on
15 February 2022 amounted to an act of spoliation which
warranted an order of eviction as granted by the court a
quo.
Counsel
argued that the issue of joint possession was never pleaded by the
appellant and that in any event the appellant ought to have proved
before the court a
quo
that there was joint possession between it and the first respondent
in respect of part of the farm in dispute but it failed to do so.
Counsel
further argued that spoliation orders by their very nature are final
and aimed at restoring the status
quo ante
and as such the court a
quo
could not be faulted for ordering that the appellant vacate the
property in dispute together with all those claiming occupation
through it.
It
was also counsel's argument that when the second respondent
enforced the order granted in HC1604/21 the first respondent was
given possession of part of the farm. Counsel maintained that by
erecting a fence and taking occupation of the land on 15 February
2021, the appellant despoiled the first respondent of part of the
farm.
Counsel
thus submitted that the judgment of the court a
quo
was unassailable and prayed that the appeal be dismissed with costs.
ANALYSIS
The
first respondent approached the court a
quo
seeking a spoliation order against the appellant. The court a
quo
granted the order sought by the first respondent. The court a
quo
restored possession of part of the farm to the first respondent by
ordering the second respondent to demolish structures and raze down
the fence erected by the appellant and all those claiming occupation
through it from part of the farm.
The
question to be determined by this Court relates to whether or not the
first respondent was in peaceful possession of part of the farm and
was despoiled by the appellant when it fenced part of the farm on 15
February 2021.
The
law on spoliation is well settled.
Spoliation
is the wrongful deprivation of another's right of possession. The
purpose of a spoliation order is to prevent self-help. The remedy
entitles a wronged party to approach a court of law to obtain an
order that he/she/it be returned to the status quo
ante.
In
Zondiwa
Nyamande v Isaac Tamuka & Ors
SC445/23 at p19 the court discussed the effect of a mandament
van spolie
as follows:
“Spoliation
proceedings hail from the common law remedy which is meant to
discourage members of the public from taking the law into their hands
(see Mswelangubo
Farm (Pvt) Ltd & Ors v Kershelmar Farms (Pvt) Ltd & Ors
SCB69/21; Chiwenga
v Mubaiwa
SC86/20). The remedy encourages members of society to follow due
process in obtaining or acquiring any res
he believes belongs to him.
The
mandament
van spolie
is therefore a possessory remedy aimed at the restoration of
possession where a party is unlawfully deprived of its prior peaceful
and undisturbed possession of property.
The
facts of each matter determine whether or not spoliation or unlawful
disposition has occurred.
It
is trite that in spoliation proceedings the lawfulness or otherwise
of the possession challenged is not an issue. Spoliation simply
requires the restoration of the status quo
ante
pending the determination of the dispute between the parties (see
Augustine
Banga & Anor v Solomon Zawe & Ors
SC54/14).”
The
learned authors Silberberg and Schoeman in The
Law of Property,
Second Edition at pp135-136 state the following with regards to this
principle:
“…
the
applicant in spoliation proceedings need not even allege that he has
a ius
possidendi:
spoliatus
ante omnia restituendus est….
All that the applicant must prove is that he was in peaceful and
undisturbed possession at the time of the alleged spoliation and that
he was illicitly ousted from such possession …. It is not
sufficient to make out only a prima facie case …”
In
the celebrated case of Botha
& Anor v Barrett
1996
(2) ZLR 73 (S) GUBBAY CJ stated as follows at p79D-E:
“It
is clear law that in order to obtain a spoliation order two
allegations must be made and proved. These are: That the applicant
was in peaceful and undisturbed possession of the property; and, that
the respondent deprived him of the possession forcibly or wrongfully
against his consent.”
In
Minister
of Mines and Mining Development & Others v Grandwell Holdings
(Pvt) Ltd
SC34/18
at p17 the court held that:
“It
has been stated in a number of cases that issues of rights are
irrelevant in spoliation proceedings. In Yeko
v Oana
1973
(4) SA 735 (AD) at 739G it was stated that:
'The
fundamental principle of the remedy is that no one is allowed to take
the law into his own hands. All that the spoliata has to prove, is
possession of a kind which warrants the protection accorded by the
remedy, and that he was unlawfully ousted.'”
In
the case of Chisveto
v Minister of Local Government and Town Planning
1984
(1) ZLR 248 (H) the court remarked:
“Lawfulness
of possession does not enter into it. The purpose of the mandamus
van spolie
is to preserve law and order and to discourage persons from taking
the law into their own hands. To give effect to these principles, it
is necessary for the status quo
ante
to
be restored until such time as a competent court of law assess the
relative merits of the claims by each party.”
And,
in Streamsleigh
Investments (Pvt) Ltd v Autoband (Pvt) Ltd
SC43/14 at p10 GOWORA JA (as she then was) held as follows:
“It
has been stated in numerous authorities that before an order for
mandament
van spolie
may be issued an applicant must establish that he was in peaceful and
undisturbed possession and was deprived illicitly. In Scoop
Industries (Pty) Ltd v Longlaagte Estate & GM Co. Ltd
(In Vol Liq) 1948 (1) SA 91 (W) LUCAS AJ said at pp98-99:
'Two
factors are requisite to found a claim for an order for restitution
on allegation of spoliation. The first is that the applicant was in
possession and the second that he has been wrongfully deprived of
that possession against his wish.
It
has been laid down that there must be clear proof of possession and
illicit deprivation before the order is granted… It must be shown
that the applicant had free and undisturbed possession…'”
(see
also H
J Voster (Pvt) Ltd and Anor v Save Safaris (Pvt) Ltd and Ors
SC41/22)
The
above authorities are instructive that in spoliation proceedings the
determining factor is not the lawfulness or otherwise of the
possession but whether the applicant was in peaceful and undisturbed
possession and that he/she/it was wrongfully deprived of that
possession against his/her/its consent.
In
case number HC1604/21 the first respondent obtained a provisional
order against Kumbirai Kangai and all those claiming occupation of
part of the farm belonging to the first respondent. The order granted
in HC1604/21 was enforced by the second respondent on 14 February
2021 whereupon Kumbirai Kangai and his employees were evicted from
the mining site.
On
the same day, the first respondent took occupation of the site and
proceeded to clear off Kumbirai Kangai's squatter camp by burning
all the temporary grass structures.
It
is also common cause that on 15 February 2021 when the first
respondent's workers sought to fill in holes and knock off stone
and mortar structures, they were denied access by the appellant's
employees who were already in the process of fencing off the site.
The
court finds that the facts of the matter clearly show that the
appellant despoiled the first respondent of its undisturbed
possession of part of the farm. This finding is made on the basis of
the following points:
(i)
Firstly, the order granted in HC1604/21 gave the first respondent
vacant possession of its part of the farm. The eviction of Kumbirai
Kangai and his employees resulted in the first respondent possessing
part of the farm, which possession it held peacefully.
(ii)
Secondly, the first respondent proceeded to clear the site as a mark
of establishing its peaceful possession of part of the farm.
(iii)
Lastly, on 15 February 2021, the appellant with no consent of the
first respondent, entered part of the farm and proceeded to erect a
fence over the area upon which the first respondent had been given
vacant possession by the court under HC1604/21.
The
appellant clearly despoiled the first respondent of its peaceful
possession of part of the farm.
Counsel
for the appellant conceded at the hearing of this appeal that the
first respondent was in possession of part of the farm, but however
sought to make the argument that such possession ought to be viewed
as co-possession between the appellant and the first respondent.
This
argument was never pleaded by the appellant before the court a
quo
as correctly noted by counsel for the first respondent.
The
authors AC Cilliers, C Loots and HC Nel in The
Civil Practice of the High Courts of South Africa
(5th
ed, J) at p558 quoting Halsbury's
Laws of England
4th
ed (Reissue) vol 36 (1) para 1, state the following in relation to a
pleading:
“The
term 'pleading' is used in civil cases to denote a document in
which a party to proceedings in a court of first instance is required
by law to formulate in writing his case in preparation for the
hearing.”
In
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA 94 (A), at 108D-E, the court cited with approval the case
of Robinson
v Randfontein Estates GM Co. Ltd
1925 AD 173 where at p198 the following was stated:
“The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would cause prejudice or
would prevent full enquiry. But within those limits the court has a
wide discretion. For pleadings are made for the court, not the court
for pleadings. And where a party has had every facility to place all
the facts before the trial court and the investigation into all the
circumstances has been as thorough and as patient as in this
instance, there is no justification for interference by an appellate
tribunal, merely because the pleading of the opponent has not been as
explicit as it might have been.”
Pleadings
are meant to mark out the parameters of the case sought to be
advanced and define the issues between litigants.
In
this regard, it is a basic principle that an issue should be clearly
stated in pleadings at the initial stages when a matter is filed.
This enables the opposing party to answer to such issues and also
ensures that the court determines all issues raised before it.
The
Court finds merit in the submission by counsel for the first
respondent that the issue of co-possession was never related to or
pleaded by the appellant in its opposing affidavit before the court a
quo.
Further,
the appellant did not produce any evidence to show that there was
co-possession of part of the farm.
In
any event it was not disputed by the appellant that its registered
mining claim relates to a block consisting of ten gold reef claims
named Forest K situated in Forest View whereas the first respondent
is the registered owner of a certain piece of land being two thirds
shares of the Remaining extent of Teviotdale.
The
court a
quo
found
that the appellant failed to prove that co-existence existed as the
certificate of registration for the appellant related to a different
area than that claimed by the first respondent.
The
finding of the court a
quo
is correct and puts the issue of co-possession to rest. The appellant
did not prove any co-possession and as such cannot seek to occupy the
first respondent's part of the farm on such basis.
Counsel
for the appellant also sought to justify the presence of the
appellant on part of the farm on the fact that the appellant had made
an application for an injunction and that on the basis of the mining
rights it possesses it could occupy part of the farm without the
consent of the first respondent.
The
submission by counsel again falls short on the basis that spoliation
proceedings have nothing to
do with rights of ownership, but is concerned solely with possession
and the unlawful deprivation thereof (see Magadzire
v Magadzire
SC197/98).
What
matters is the fact that as at 14 February 2021, the first respondent
was in undisturbed and peaceful occupation of part of the farm. The
appellant despoiled the first respondent by camping on that part of
the farm and proceeding to erect a fence. Such conduct could not be
allowed to continue and hence the court a
quo
granted
the spoliation order sought by the first respondent and ordered that
the status quo
ante
be restored to the first respondent and that in restoring the status
quo
ante
the second respondent eject, demolish and raze down any structures
and the fence erected by the appellant and all those claiming
occupation through it, on the farm.
The
order of the court a
quo
should not in any way be read as an eviction order of the appellant
from part of the farm.
The
appellant in its third ground of appeal has raised the argument that
the court a
quo
erred in affording
the first respondent final ejectment relief in an urgent spoliation
cause in circumstances where such relief was neither justified nor
motivated in the first respondent's founding papers.
The
argument made by the appellant is without merit.
Spoliation
orders are meant to restore the status
quo ante
of a situation and in restoring such status. A despoiled party must
be restored to his/her/its original position before anything else.
(See
Ngukumba
v Minister of Safety and Security & Ors
2014 (7) BCLR 788 (CC) para 10).
This
therefore means that in restoring the despoiled party, the despoiler
must be removed from the property forming the centre of the dispute
and the despoiled party must be restored to the state of affairs that
existed before the spoliation.
The
order of the court a
quo
must therefore not be read as an eviction order as it does not speak
of eviction but rather speaks to the restoration of the status quo
ante.
DISPOSITION
The
court a
quo,
correctly found that the appellant resorted to self-help by placing
itself at the mining site immediately after Kumbirai Kangai had been
evicted. The court a
quo
was alive to the fact that the order under HC1604/21 had given the
first respondent peaceful possession of part of the farm and that by
erecting a fence the appellant had despoiled the first respondent of
its land.
The
court a
quo
thus properly restored possession to the respondents by granting the
spoliation relief. The requirements for a spoliation order were
clearly satisfied. The decision of the court a
quo
is unassailable.
The
appeal is without merit and must fail.
As
regards costs, there is no reason why we should depart from the
normal trend that costs follow the result.
Accordingly,
it is ordered that the appeal be and is hereby dismissed with costs.
BHUNU
JA: I
agree
CHIWESHE
JA: I
agree
Messrs
Marume & Furidzo,
appellant's legal practitioners
Jarvis.Palframan,
1st
respondent's legal practitioners
