MAKONI
J: The applicant filed an application
for a spoliation order. The basis of the application is that on9 January 2010
the respondent, together with six other men entered into the applicant's farm
and they forcibly dismantled a maize silo. This was without the consent of the
applicant neither was there a court order authorizing them to do so.
The
application was opposed mainly on the basis that the applicant was not in
peaceful and undisturbed possession of the silo. The silo was in the possession
of a committee of seven constituted of representatives appointed by A1 farmers
settled where the silo is situate.
In
an application for spoliation, two allegations must be made and proved:
(1)
That the applicant was in peaceful and undisturbed
possession of the property; and
(2)
That the respondent deprived him of such possession
forcibly, wrongfully or illicitly. See Diana
Farm (Pvt) Ltd v Mudondo & Anor 1998 (2) ZLR 410 (H).
The
applicant must also establish that the possession was not only physical but
that it was accompanied by animus
(intention of securing a benefit. This point was made in Bennett Pringle (Pty) Ltd v AdekideMunicipality 1977 (1) SA 230 E at 233 which was quoted by ADAM J in Davis v Davis 1990 (2)
ZLR 136 (H) at 141 E-F. ADDLESON J observed:
“In terms of all
the authority cited, the 'possession', in order to be protected by a spoliation
remedy, must still consist of the animus - the 'intention of securing some benefit to'
the possessor; and detentio, namely
the 'holding' itself ………………. If one has regard to the purpose of the possessory
remedy, namely t to prevent persons taking the law into their own hands, it is
my view that a spoliation order is available at least to any person who is: (a)
making physical use of property to the extent that he derives a benefit from
such use; (b) intents by such
use to secure the benefit himself; and (c) is deprived of such use and benefit
by a third person.”
In
casu the applicant, in his founding
papers, did not make and prove the two allegations which constitute what can be
termed the essential elements for a spoliatory order. The applicant did not
aver that it was in peaceful and undisturbed possession of the silo. In my view
this is fatal to the applicant's case.
Further
the applicant did not establish, on his papers, that it was making physical use
of the property to the extent that it derived a benefit from such use and
intends by such use to secure a benefit to itself. The applicant, in para 5 of
its answering affidavit, concedes that point. It avers that it has not used the
silo since 2002 because of fear of theft of grain from the silo. It intends to
use it when the A1 farmers are re-located. There is no time frame given of when
the A1 farmers will be re-located.
It
is clear from the above that the applicant has failed to establish that it was
in peaceful and undisturbed possession of the silo and was making physical use
of the property to the extent that it derived a benefit from such use of the
silo and intended such use to secure that benefit to itself.
In
the result I make the following order:
The
application is dismissed with costs.
Wintertons, applicant's legal practitioners
Hogwe, Dzimirai Partners, respondent's legal
practitioners
