Law of Property-viz spoliation order.
Law of Property-viz mandament van spolie.
Procedural Law-viz jurisdiction re judicial deference iro remittal.
Procedural Law-viz jurisdiction re judicial deference iro remittal order.
Procedural Law-viz final orders re entitlement of litigants to written reasons for judgement.
Law of Property-viz spoliation order re conferred possessory rights.
Law of Property-viz mandament van spolie re conferred possessory rights.
Procedural Law-viz final orders re relief in conflict with an extant court order.
Law of Property-viz competing claims re self-help.
Procedural Law-viz final orders re the final and conclusive rule iro default judgement.
Procedural Law-viz cause of action re legal basis for invoking the jurisdiction of the court.
Procedural Law-viz final orders re judicial misdirection iro failure of the court to determine the matter specifically pleaded by the parties.
Procedural Law-viz interim interdict re interim relief expressed in similar terms to the final order sought.
Procedural Law-viz provisional order re interim relief framed in similar terms to the final order sought.
Procedural Law-viz interim interdict re the seeking of final relief through an urgent chamber application.
Procedural Law-viz provisional order re the granting of final relief through an urgent application.
Procedural Law-viz interim interdict re spoliation proceedings.
Procedural Law-viz provisional order re mandament van spolie proceedings.
Procedural Law-viz pleadings re non-pleaded issues iro matters raised and determined mero motu by the court.
Procedural Law-viz pleadings re matters not specifically pleaded iro issues introduced and determined mero motu by the court.
Procedural Law-viz pleadings re issues not motivated by the parties iro matters for determination by the court.
Procedural Law-viz cause of action re draft order iro the principle that a case stands or falls on the founding affidavit.
Procedural Law-viz cause of action re legal basis for invoking the jurisdiction of the court iro the rule that a case stands or falls on the founding afidavit.
Procedural Law-viz founding affidavit re the principle that a case stands or falls on the founding affidavit iro cause of action.
Procedural Law-viz founding affidavit re the rule that a case stands or falls on the founding affidavit iro cause of action.
Procedural Law-viz final orders re enforcement of court orders iro enforcement powers.
Procedural Law-viz cause of action re mutually exclusive causes of action.
Procedural Law-viz cause of action re consolidated causes of action.
Procedural Law-viz cause of action re composite cause of action.
Procedural Law-viz final orders re ratio decidendi of a judgement iro relief sought by the parties.
Procedural Law-viz interim interdict re provisional order pendente lite.
Procedural Law-viz provisional order re interim interdict pendente lite.
Procedural Law-viz interim interdict re stay of execution.
Procedural Law-viz provisional order re stay of execution.
Procedural Law-viz final orders re procedural irregularities iro discretion of the court to remit a matter.
Procedural Law-viz cause of action re pleading by implication iro the principle that a case stands or falls on the founding affidavit.
Procedural Law-viz pleadings re implied pleadings iro the rule that a case stands or falls on the founding affidavit.
Procedural Law-viz final orders re ratio decidendi of a judgment iro determination of the substantive issues before the court.
Procedural Law-viz final orders re ratio decidendi of an order iro determination of the cause of action.
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu....,.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
A court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.
They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.
The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.
On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.
In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.
The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.
DISPOSITION
Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.
They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.
The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.
On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.
In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.
The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.
DISPOSITION
Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.
They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.
The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.
On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.
In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.
The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.
DISPOSITION
Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.
They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.
The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.
On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.
In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.
The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.
DISPOSITION
Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.
They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.
The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.
On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.
In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.
The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.
DISPOSITION
Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.
They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.
The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.
On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.
In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.
The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.
DISPOSITION
Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.
They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.
The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.
On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.
In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.
The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.
DISPOSITION
Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.
At the conclusion of the hearing in this matter, the court issued an order in these terms:
1. The appeal be and is hereby allowed with costs;
2. The judgment of the court a quo be and is hereby set aside;
3. The matter is remitted to the court a quo for it to determine the case that was before it; and
4. The matter is to be placed before a different judge for determination.
The first and second respondents have requested full reasons for this order, and these are they.
FACTUAL BACKGROUND
The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.
The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.
In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.
The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.
In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.
The order reads as follows, in the relevant part:
“IT IS ORDERED THAT:
1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.
2….,.
3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.
4….,.”
Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.
In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.
In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).
The court a quo held that it was proper that the first respondent be restored to the farm.
The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.
The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.
The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.
The court then granted the order sought by the first and second respondents.
Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:
1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.
ISSUE FOR DETERMINATION
The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:
Whether or not the court a quo erred in determining a matter that was not properly before it
The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.
In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.
THE LAW AND APPLICATION THEREOF TO THE FACTS
It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.
Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to the Honourable Court why a final order should not be made in the following terms:
1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.
2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.
INTERIM RELIEF GRANTED
Pending determination of this matter, the applicant is granted the following relief:
3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.
4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.
5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.
6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.
7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”
Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.
Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.
The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.
In other words, was the matter properly before it?
A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:
“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.
Equally, the point raised that there is no cause of action is without basis.
The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.
The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.
The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.
This obtains herein, hence, it is justified that the applicant be restored to the farm.
The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.
The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.
It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.
This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.
In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:
“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”
Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.
On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.
This is the matter that was properly before the court.
That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:
“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”
Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.
Spoliation proceedings are determinable on completely different legal principles.
To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.
It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.
In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.
These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:
“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”
In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.
They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.
The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.
On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.
GWAUNZA
DCJ:
[1]
This
is an appeal against the whole judgment of the High Court, Harare,
handed down on 4 August 2022. The judgment granted an interim
spoliation order and other relief against the appellant and in
favour of the first and second respondents. At the conclusion of the
hearing in this matter, the court issued an order in these terms:
1.
The appeal be and is hereby allowed with costs;
2.
The judgment of the court a
quo
be and is hereby set aside;
3.
The matter is remitted to the court a
quo
for it to determine the case that was before it; and
4.
The matter is to be placed before a different judge for
determination.
The
first and second respondents have requested full reasons for this
order, and these are they.
[2]
FACTUAL
BACKGROUND
The
first, second and fourth respondents are holders of an offer letter
in respect of Subdivision 2 of
Lot
1 of Avalon, Hurungwe District, Mashonaland West Province (the
'farm').
In addition to the offer letter, there are various judgments and
orders of the High Court
which
confirm the first respondent's right of occupation. The farm was
repossessed from the appellant by the third respondent following a
national land audit and was jointly allocated to the first, second
and fourth respondents in 2013. In 2018, the first respondent
successfully instituted
eviction proceedings against the appellant in judgment number
HH707/20. Aggrieved by this judgment, the appellant appealed to this
Court under
case
number
SC39/21
but the appeal was dismissed.
[3]
The
appellant thereafter filed an application for review
under HC7124/21 which was dismissed. Undaunted, he further
filed
another
case
under
HC7057/21
which
was
also
dismissed.
He was thereafter evicted
from the farm, with the result that the first respondent was granted
vacant possession
thereof.
In June 2021, the appellant filed an application for the review of
the decision of the third respondent in withdrawing his offer letter.
Despite the first and second respondents being correctly cited as
interested parties
to
the review application, they were however not served with the notice
of set down. As a result an order against the third respondent was
subsequently granted, in default, on the 12 July 2022. The order
reads as follows in the relevant part:
“IT
IS ORDERED THAT:
1.
The decision to withdraw a letter of withdrawal of applicant's
offer letter dated 18 November 2013 be and is hereby declared a
nullity and set aside.
2.……………………………
3.
In the result it is hereby declared that the applicant is lawfully
authorized and entitled to be in occupation of Subdivision 2 Lot 1 of
Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer
letter issued to him by the respondent on 1 December 2006.
4.……………………………..”
[4]
Following
the granting of the review application, the appellant proceeded to
invade the farm and
eject
the first and second respondents, without a court order or writ of
eviction backing his actions.
In
response to these actions, the first and second respondents filed an
application seeking to have the order granted
under
case number HC3129/21 rescinded. In addition, the two filed an urgent
chamber application for stay of execution pending the determination
of the application for rescission of judgment that had already been
filed. Both applications were premised on the fact
that
the judgment in HC3129/21 was
granted
in error.
[5]
In
dealing with the urgent chamber application the court a
quo
held
that the requirements for a
spoliation
order
were
clear
and
that
the
first
respondent
was
in
peaceful
and
undisturbed
possession
of his part of the farm and was therefore dispossessed unlawfully.
The court a quo
held
that it was proper that the first respondent be restored to the farm.
The court further held that the appellant was not in possession of a
court order for the eviction of the
first respondent
from the farm. Further, that he had invaded the farm and sought to
dispossess the first respondent who was occupying
the
farm peacefully. The court held on this basis, that this circumstance
justified a spoliation order 'as pleaded' and prayed for. The
court a
quo
further
held that
even
though
no
warrant of eviction had been issued against the first respondent,
given that the order granted in HC3129/21 was declaratory
in
nature,
the
appellant
had
made
it
clear
that
he
had come back to the
disputed farm
on the strength of that order.
The court then granted the order sought by the first and second
respondents.
[6]
Disgruntled
at that decision, the appellant filed this appeal on a number of
grounds, but only one of them is relevant for the determination of
the matter at hand. The ground reads as follows:
1.
Having been approached for an order for stay of execution, the court
a
quo
erred
at law
and
grossly misdirected itself in granting, on a prima
facie
basis
and in the form of a
provisional
order;
interdictory
relief,
spoliatory
relief,
and
eviction
relief
-which causes of action had not been pleaded or established by the
first
and second
Respondents
and
which is final in nature
and
effect.
[7]
ISSUE
FOR DETERMINATION
The
ground of appeal cited above raised the only issue that, in the
event, was determined by the court and disposed of the appeal. This
was:
Whether
or
not
the
court
a
quo
erred
in
determining
a matter that was not properly before it
[8]
The
appellant in his first ground of appeal, avers that the court a
quo
erred
at law and grossly
misdirected
itself in
granting,
on a prima
facie
basis
and in the form of a
provisional
order,
a
spoliation order, an order of eviction, and an interdict. He avers
that the relief was also granted in circumstances where the
requirements for it were neither pleaded nor established by the
first
and second respondents.
In
short, it is the appellant's submission that the court went on a
frolic of its own and determined a matter not properly before it.
THE
LAW AND APPLICATION THEREOF TO THE FACTS
[9]
It
is common cause
that
the first and second respondents approached the court a
quo
on
an urgent basis
seeking
a suspension or stay of execution of the order granted by the court
in HC3129/21 pending
determination
of
their
application
for
rescission
of
judgment
under
case
number
HC4928/22.
Based
on that application, the respondents sought the following interim
relief, which the court a
quo
granted without any alteration;
“TERMS
OF FINAL ORDER SOUGHT
That
you show cause to the Honourable Court why a final order should not
be made in the following terms -
1.
The judgment of this Honourable Court granted under HC3129/21 on the
12 July 2022 be and is hereby suspended pending the determination of
(the) Court Application filed by the Applicants under HC4928/21.
2.
The first respondent shall pay the costs of suit on the higher scale
of attorney and client.
INTERIM
RELIEF
GRANTED
Pending
determination
of
this
matter
the
applicant
is
granted
the
following
relief:
3.
Pending the determination of the application for rescission of
default judgment filed
under
case number 4928/22, the execution and operation of the court
order
granted
under
HC3129/21
on 12 July 2022 be
and
is hereby
suspended.
4.
The first respondent and all those acting through him be and are
hereby ordered to
vacate
Subdivision
2 of Lot 1 of Avlon Farm forthwith.
5.
The first respondent and all those acting through him be and are
hereby ordered to
forthwith
return
and
give
vacant
possession
of
Subdivision
2
of
Lot
1
Avlon
Farm
forthwith to
the
applicants.
6.
First respondent is ordered not to interfere with applicant's
exercise of rights in
Subdivision
2
of Lot 1 of
Avlon
Farm.
7.
First respondent be and is hereby ordered to pay costs of suit on a
legal practitioner
and
client
sale.”
[10]
Whatever
the merits or demerits of the main relief that the respondents sought
to secure from the court a
quo,
it is evident from a reading of the order granted by the court
that
pending the return date,
the
court granted a spoliation order simultaneously with an order for the
eviction of the appellant from the disputed premises.
Whether
or not the court could competently grant a spoliation order as
interim rather than final relief, is however not what is at issue in
casu.
The
issue, rather, is whether or not the court a
quo
reached its determination on spoliation on the basis of the matter
having been fully pleaded, argued and established.
In
other words, was the matter properly before it?
[11]
A
look at relevant excerpts
from the court a
quo's
judgment is instructive in this respect. At pages 5 and 6 of the
cyclostyled judgment of the court a
quo,
the
learned judge opined as follows:
“I
ruled that the matter is urgent given that the applicant was accosted
at the farm on 22 July 2022. He filed this application on 25 July
2022 that is three days after the incident……. As
for this application, it is the invasion and unlawful eviction which
prompted him to seek the court's intervention on an urgent basis.
Equally,
the point raised that there is no cause of action is without basis.
The
applicant's farm was invaded. The first respondent was taking the
law into his own hands. In as much as he had a court order declaring
that the withdrawal of his offer letter is null and void, he had to
properly seek the applicant's eviction.
The
point that no writ has been issued therefore the relief is
incompetent does not hold. This
is because the applicant seeks spoliatory relief and this is apparent
from the averments.
He also seeks the suspension of the order pending the hearing of the
application for rescission of judgment.
The
requirements of a spoliation order are clear and are that the
applicant must have been in peaceful and undisturbed possession and
has been disposed unlawfully. This
obtains herein hence it is justified that the applicant be restored
to the farm.
The first respondent had no order for the eviction of the applicant,
he invaded the farm and sought to remove the applicant who was
occupying the farm peacefully. That justifies a spoliation order as
pleaded and as prayed for.” (my
emphasis)
[12]
The excerpts
cited above, while showing that the court a
quo
was alive to the main relief that the first and second respondents
papers and draft relief suggested they were seeking before it
(whatever its merits or demerits), also demonstrate the fact that the
court was preoccupied even in relation to the determination on the
urgency or otherwise of the matter, more with the issue of spoliation
than the matter that was substantively before it.
It
is also evident that the ratio
decidendi
of the court's judgment was spoliation related, that is that the
appellant unlawfully raided the first respondent's farm and
dispossessed him of his peaceful possession thereof.
This,
notwithstanding the fact that, according to the order sought and
granted, the spoliation order was, improperly, in the form of interim
rather than final relief.
Notably,
this Court finds that this ratio
decidendi
is
not what would have properly founded any relief pertaining to whether
or not execution of the court a
quo's
own earlier judgment in HC3129/21
could be suspended or stayed.
[13]
On
the basis of an application titled 'URGENT APPLICATION FOR STAY OF
EXECUTION' the first and
second
respondents
approached
the court a
quo
seeking
an order for stay of
execution.
This is the matter that was properly before the court. That this is
the case is borne out by the final order sought by the respondents a
quo,
as well as para 9 of the first respondent's founding affidavit,
which reads as follows:
“This
is an urgent chamber application filed to suspend or stay the
operation of an order granted by KATIYO J on the 12
July
2022 in HC3129 pending the determination of an application for
rescission of judgment by myself under HC4928/22.”
[14]
Settled
law, supported by an abundance of authorities, sets out clearly what
an applicant has to establish in order to secure an order staying or
suspending the execution of a judgment of the court (see among
others,
Humbe
v
Muchina
&
Ors
SC81-22,
Mupini v Makoni 1993 (1) ZLR 80 (S)
at
83 B–D).
Spoliation
proceedings are determinable on completely different legal
principles.
To
the extent that the court did not advert to the relevant law in order
to determine the real matter before it but instead, determined
spoliation and other unrelated related claims, it went on a 'frolic'
of its own.
[15]
It
is important to note that courts should refrain from granting relief
neither sought by the parties, nor based on a case properly argued
and proved.
In
other words, a court should not craft a case for any of the parties
before it, no matter how badly the real case may have been pleaded
and argued.
These
principles are aptly captured in
the
matter of Nzara
and Others v Kashumba NO and Others 2018 (1)
ZLR 194 (S)
where
UCHENA
JA
at
p195B
held
as follows:
“…In
its judgment, a court must
decide
no more than what is absolutely necessary for the decision on the
case. The
decision
of the court must always be based on the pleadings of the parties,
the evidence
placed
before the court and the submissions made by the legal practitioners
representing
the
parties.
The
granting
of
relief
which
is
not
sought
and
in
respect
of
which
no argument was heard amounts to a violation of the right to a fair
hearing. A court's
judgment
must
be
founded
on legal principles
and
not
equity.”
In
casu,
while the first and second respondent might have in reality craved
spoliatory relief, they did not file, as they might have done, a
substantive application for spoliation.
They
instead filed an application for the stay or suspension of an earlier
order of the court pending determination of their application for the
rescission of the same order.
The
spoliation case, as evidenced by the excerpts
from its judgment, cited above, was instead crafted for them by the
court a
quo.
On
the basis of the Nzara
case (supra)
the court misdirected itself in so doing.
[16]
In
light of the foregoing, this Court found accordingly
that the court a
quo
misdirected
itself in granting defective relief that was neither premised on a
sound legal basis, nor properly pleaded, argued or proved. In the
process the court a
quo
determined a matter not properly before it.
The
court thus found that the appellant's first ground of appeal had
merit
and to that extent, that the appeal ought to succeed, and the matter
remitted to the court a
quo
for a proper determination of the matter that was before it. Costs
follow the cause.
[17]
DISPOSITION
Having
found that the court a
quo
erred by not determining the real issue before it, the court granted
the order cited at the beginning of this judgment.
CHIWESHE
JA: I agree
MUSAKWA
JA: I agree
Antonio
& Dzvetero,
appellant's
legal practitioners
Saunyama
& Dondo,
1st
and 2nd
respondents legal practitioners
1.
Even
though the court a quo in its judgment refers only to the first
respondent as the one who was despoiled of the farm in question, it
is pertinent to note that the second respondent in his supporting
affidavit a quo, asserts that he too was a victim of the alleged
dispossession, and associated himself with the relief sought a quo.
2.
In
Gateway Primary School & Ors v Marinda Fenesey
SC
63-21
the
court stated as follows:
“The
leading case on this settled point of law is Blue Rangers Estates
(Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368.
That case is authority for the proposition that a spoliation order
being a final and definitive order cannot be granted as a provisional
order. That being the case, it follows that the respondent erred and
strayed into the realm of illegality when it sought a spoliation
order in the form of a provisional order.”
