The
applicant seeks a spoliation order against the first respondent.
The
facts of this case are essentially common cause, or at least beyond material
dispute.
The
applicant has a sub-lease arrangement with Taradale Investments, who are the
principal lessees of Shop Number 55, Bulawayo Centre. The applicant has been in
occupation since 2007. From the papers filed, the first respondent has been
aware of this sub-lease arrangement for quite some time, and has never
challenged its validity until now, when he opposed this application and filed a
counter application.
It
is common cause that the first respondent, on 8 July 2009, locked the applicant's
Shop Number 55. The locking out was not pursuant to a court order. Further, the
applicant did not consent to such lock out.
The
issue, therefore, is whether the first respondent is entitled to eject the
applicant, or assume control of the premises, in the absence of the court
order.
The
applicant submits that by locking her out of the premises, the first respondent
unlawfully despoiled her of her peaceful occupation and undisturbed possession
of the premises.
The
respondent's case is basically that the applicant cannot approach this court to
enforce an illegal occupation of the disputed premises by way of a spoliation
order. The applicant relies on the fact that there is no direct relationship
between the second respondent and the applicant. More importantly, the lease
agreement between the second respondent and the main lessee does not allow for
sub-letting without the second respondent's consent.
The
applicant is said to be squatting in the second respondent's premises.
As
alluded to above, the first respondent was aware of the illegal occupation of
Shop Number 55, and did not seek to evict the applicant. The answer to this
issue is found in the judgment of MAKARAU J..., in the Best of Zimbabwe Lodges
(Pvt) Ltd & Anor v Croc Ostrich Breeders of Zimbabwe (Pvt) Ltd & Ors
2003 (1) ZLR 57 (H). At page..., the learned judge referred to a South African
case as follows -
“In
Ntshwacela v Chairman, Western Cape Regional Services Council, 1988 (3) SA 218
(C), HOWRIE J held that the squatters who had been made to leave a certain
farm, part of which they occupied, by means of a threat of arrest by the
police, had been dispossessed by means of duress, and that such dispossession
was unlawful. In so holding, the judge had this to say at p225G of the report:
'In
the present matter, applicants were dispossessed against their will and without
the authority of any order of this court, or any order of a magistrates'
court...,. In acting as they did, whether as principals or agents, all
respondents took the law into their own hands. They were guilty of what is
called self-help. This court must insist on observance of the principle that a
person in possession of property, however unlawful his possession may be, and
however exposed he may be to ejectment proceedings, cannot be interfered with
in his possession except by due process of law. If he is interfered with unlawfully,
the court will not condone such interference. It will redress the situation
pending the taking of lawful action for ejectment.'”
It
appears to me from the foregoing that any action that results in a party
parting with possession without his consent, and outside the legal process, can
found an application for spoliation.
In
casu, the facts reveal that the first respondent is guilty of self-help.
Assuming
the sub-lease was illegal, still, the first respondent should not have taken
the law into its hands. The applicant's possession cannot be interfered with
without her consent, or by due process of law – see also van t'Hoff v van t'Hoff
& Ors (1) 1988 (1) ZLR 294 (H)...,; Davis v Davis 1990 (2) ZLR 136 (H)...,;
Chisveto v Min. of Local Government and Town Planning 1984 (1) ZLR 248 (H)...,;
and Geza v Khumalo & Anor 2002 (2) ZLR 144 (H)...,.
Accordingly, the provisional order is granted in
terms of the draft, and the first respondent's counter-application is dismissed
with costs.
