This is an appeal against the entire judgment of the High
Court, Harare, which was handed down on 20 March 2012. In that court, the first
respondent in casu brought an urgent application against the present first
appellant and two others for an interim spoliation order.
The brief facts of the matter are as follows:
Since 2004, the first respondent occupied and used for
business related to poultry, a part of the farm known as Plot 4 Sun Valley
Borrowdale, also referred to as Welston Farm. It is not in dispute that the first respondent did not own the farm in
question but occupied and used the part on which fowl runs were located,
initially in terms of what he referred to as a lease agreement, and later in
terms of an alleged 'caretakership' agreement with the Government.
Neither of these documents was tendered into evidence.
On 11 November 2011, the Provincial Administrator
for Harare Metropolitan Province addressed a letter to the first respondent,
directing that he vacates the premises in question to allow full use of the
farm by the legal owner thereof. On 28 February 2012, the present appellant,
purporting to act in terms of a power of attorney granted in his favour by the
registered owner of the farm, who is the second appellant in this case, put
chains and new locks on to the gate leading to the farm in question, thereby
effectively locking the respondent out and barring him from entering the
premises. The first appellant also placed security guards by the same entrance.
It is not disputed that, on or soon after the day of the alleged spoliation,
the respondent unsuccessfully sought to effect delivery of a consignment of
chicks onto the disputed premises. The appellants alleged, and the first
respondent denied, that he vacated the premises in question of his own accord
following receipt of the letter from the Provincial Administrator for Harare
Metropolitan Province, and, in any case, before the date of the alleged
spoliation.
The first respondent's efforts to enlist the assistance of
the police to regain entry onto the premises were futile, a circumstance that
prompted him to file the urgent application that led to the High Court order now
being appealed against.
The court a quo found in favour of the first respondent and
issued an order in the following terms;
“In the result, an interim order is granted on the
following terms;
1. The second and third respondents restore undisturbed possession
of Plot 4 Sun Valley, Borrowdale, also referred to as Welston Farm to the
Applicant within one hour of the granting of this order.
2. The second and third respondents remove all chains and
locks on the gate leading to the farm, within one hour of the granting of this
Order.
3. Should the first, second, and third respondents fail to
restore undisturbed possession of Plot 4 Sun Valley, Borrowdale, also referred
to as Welston Farm to the applicant within one hour of the granting of this
Order, then the fourth and fifth respondents are hereby ordered to restore
applicant's quiet use and undisturbed possession and to seek the assistance of
a locksmith if necessary.
3(a) In the event that the intervention of the fourth and fifth
respondents is necessary, the second and third respondents be and are hereby
ordered to pay the fourth respondent's costs.
4. That second and third respondents and all those claiming
occupation of Plot 4 Sun Valley, Borrowdale, also referred to as Welston Farm
through them be and are hereby interdicted from interfering with the
applicant's quiet and undisturbed enjoyment and possession of the premises.”
The appellants' appeal is premised on a number of grounds
which may be summarized as follows:
1. The court a quo misdirected itself by granting a final
order for the occupation and use of the entire property known as Plot 4 Sun
Valley, Borrowdale, Harare (Welston Farm) when the applicant therein had only
sought provisional relief in respect of the chicken runs situated on that property;
2. The court a quo erred in finding that the legal requirements
of a spoliation order had been met; and
3. The court a quo erred in determining crucial factual
issues in the face of material disputes of fact.
These grounds of appeal will be considered in light of the
evidence before, and the reasoning of, the court a quo….,.
Whether or not the
requirements of a mandament van spolie were met
In determining this issue, the judge a quo correctly cited
the leading case of Kama Construction (Private) Limited v Cold Comfort Farm
Cooperative and Others 1999 (2) ZLR 19 (SC) and listed the legal requirements
for a mandament van spolie set out therein, which the applicant must prove on a
balance of probabilities. These are that:
(i) The applicant was in peaceful and undisturbed
possession of the thing; and
(ii) He was unlawfully deprived of such possession.
In the case of Botha and Anor v Barrett 1996 (2) ZLR 73 (S)…,
also cited by the learned judge a quo, the court qualified “unlawful
deprivation” to mean that the respondent deprived the applicant of possession 'forcibly
and wrongfully against his consent.'
The court a quo went on to list the valid defences against
a spoliation claim, among them that:
(i) The applicant was not in peaceful and undisturbed
possession of the thing in question at the time of dispossession; and
(ii) The dispossession was not unlawful and therefore did
not constitute spoliation.
The argument has been advanced in casu, on behalf of the appellants, that the first respondent, having
previously, and of his own accord, vacated the premises, was in fact not in
possession thereof, peaceful or otherwise, on the day in question.
Possession, being an essential element in spoliation
proceedings, I find it necessary to first consider whether or not the facts
established that the first respondent was in possession of the disputed
premises at the relevant time. Should I so find, I would then consider whether
such possession was peaceful and/or undisturbed.
According to the learned authors, SILBERBERG and SCHOEMAN's
'The Law of Property', Second Edition….,:
“'Possession' has been described as a compound of a
physical situation and of a mental state involving the physical control or
detentio of a thing by a person and a person's mental attitude towards the
thing….., whether or not a person has physical control of a thing, and what his
mental attitude is towards the thing, are both questions of fact.”
It is trite that in spoliation proceedings the lawfulness
or otherwise of the possession challenged is not an issue. Spoliation simply
requires the restoration of the status quo ante pending the determination of
the dispute between the parties. This principle is clearly stated thus by the
learned authors SILBERBERG and SCHOEMAN's 'The Law of Property', Second Edition….,:
“…, the applicant in spoliation proceedings need not even
allege that he has a ius possidendi: spoliatus ante omnia restituendus est…,.
All that the applicant must prove is that he was in peaceful and undisturbed
possession at the time of the alleged spoliation and that he was illicitly
ousted from such possession…,. It is not sufficient to make out only a prima
facie case…,.”
The evidence in casu shows that the first respondent relied
on a number of documents and circumstances in his attempt to prove his
entitlement to, and the fact of his having been in, possession of the premises
in question. These were:
a) A lease agreement, not tendered into evidence and which
had long since expired, entered into with one Mr Laing in 2004, the year in
which he allegedly took possession of the disputed premises;
b) A “caretakership” agreement with the Government which,
again, was not tendered into evidence;
c) That prior to the date of the alleged spoliation, he had
brought chicken feed onto the premises;
d) That he was on the disputed premises 'everyday' until
the 28th of February 2012, the day of the alleged dispossession, and still had
workers there; and
e) That on or about the day itself, he had sought, albeit
unsuccessfully, to effect delivery into the fowl runs of some 120,000 chicks.
The court a quo was persuaded that the first respondent was
indeed in possession of the premises in question at the time of the alleged
spoliation, and that he had, therefore, been unlawfully dispossessed. The basis of such conclusion is apparent from
the following excerpt…, of the judgment of the court a quo:
“The applicant explained that he occupied the property in
question by virtue of a lease he entered (sic) with the first respondent…,. I do not think that the applicant is
expected to give a better answer than that…,.”
It is evident that the court a quo premised its conclusion
that the first respondent was in possession of the disputed premises on his
claim to a ius possidendi, that is, the right of possession.
This is clearly a misapprehension of the applicable
principle authoritatively enunciated by SILBERBERG and SCHOEMAN's 'The Law of
Property', Second Edition…., above. On the basis of this principle, the lease
agreement in question and the alleged 'caretakership' agreement with the Government
that the first respondent sought to rely on, do not constitute a valid basis to
establish possession on the day of the alleged spoliation.
In any case, the appellants do not dispute that the first
respondent, for a number of years prior to the alleged spoliation, had access
to and use of the premises in question….,.
The first respondent, as indicated in paragraphs (c)-(e),
also, correctly, sought to rely on factual evidence to show that he was in possession
of the disputed premises on the day of the alleged dispossession.
He attached to his answering affidavit Annexure 'C', which
appears to be an invoice dated 20 January 2012, suggesting the purchase of
chicken feed to be delivered to 'Sun valley, B'dale'.
The appellants, however, disputed the prior delivery of
chicken feed to the premises as claimed by the first respondent. Their evidence
was that the premises in question were completely devoid of anything belonging
to him that may have pointed to his possession thereof on the day in question.
I find that the invoice referred to, on its own, is
insufficient to establish that the delivery of the chicken feed was, in fact,
effected to the disputed premises. No supporting affidavit from another person
attesting to such delivery has been filed. I take the view, in the light of
this inconclusive evidence, that what the first respondent alleges can at best
be taken as prima facie, not definitive, evidence of a claim to possession. I am satisfied it falls short of the
requisite standard for possession, as set down in the authority cited in
SILBERBERG and SCHOEMAN's 'The Law of Property', Second Edition.
It is the first respondent's further assertion that he was
on the premises in question 'every day', including the date of the alleged
dispossession.
He uses strong words to deny that he ever vacated the
premises. He explains, in his answering affidavit, that his chicken business
was run in staggered phases, where periods of time separated the various stages
of the chicks' development, for instance, the period between 'harvesting' of
grown chickens and the delivery of a new batch of chicks. A possible
implication of this is that the first respondent and/or his workers may have
stayed away from the premises during periods when there was little or no
business activity underway. While this seems to contradict his assertion that
he was on the premises 'everyday', it also, significantly, in my view,
reinforces the contention by the appellants that, at the time of the alleged
spoliation, neither he nor his workers and any equipment of his were on the
disputed premises.
The appellants insist that the first respondent had taken
all his equipment and other assets and vacated the premises well before the
date of the alleged dispossession. They contend this was in pursuance of a
directive for him to do so, which was issued by the Provincial Administrator
for Harare Metropolitan Province.
It is not in dispute that this directive was contained in a
letter to the first respondent, dated 11 November 2011, which, among other
things, called upon the first respondent to 'take away your equipment locked in
these shades by you (sic)'. It was after this event, the appellants further
contend, that 'it was noticed' that vandals had started destroying
infrastructure and other assets on the premises, a circumstance that had
prompted them to put chains and locks on the gate to the farm and place guards
by the gate, as a way of 'securing' the premises in question.
Beyond stating that he was on the farm 'every day',
including the day of the alleged spoliation, and that he had workers on the
premises, the first respondent has not tendered any other evidence to
substantiate this assertion. He does not explain where he was at the time of the
actual spoliation. Nor how the appellants were able, without any resistance
from him nor any of his workers, to change keys and locks to the premises and
to the main gate, effectively barring him from entering the premises. His
claim, disputed by the appellants, to have workers resident on the premises has
also not been backed up with any other evidence. Other sworn evidence might
have helped to shed light on exactly how the alleged spoliation was carried
out, who was present when it happened and whether any resistance, by or on
behalf of the first respondent, had been put up against such a move. As already
indicated, spoliation involves the element of dispossessing a person forcefully
without his or her consent.
In the light of this, I find merit in the appellants'
argument that the court a quo, in
holding that the first respondent had been wrongfully dispossessed, misdirected
itself when it stated as follows…,:
“The defence raised by the respondent is that there was no
unlawful dispossession. However, this does not appear to be supported by the
surrounding facts. One would have expected there to be proper handover of the
property to the respondents.”
It hardly needs emphasis that the very nature of spoliation
entails a defended, forceful, and unlawful operation carried out in
circumstances far removed from the situation where an applicant peacefully
hands over the disputed 'thing' to the spoliator. In other words, had the first
respondent 'properly' handed over the disputed premises in casu, there would
have been no question of his having been dispossessed.
The appellants do not dispute that there was an attempt by
the first respondent to deliver a consignment of chicks on or about the day of
the alleged dispossession. However, like his evidence regarding the delivery of
chicken feed, I find that the first respondent failed, on the basis of an
attempt to deliver a consignment of chicks to the premises, to establish, to
the required legal standard, that he was present or otherwise in possession of
the premises in question on the day of the alleged spoliation. His absence from
the premises may have been due to him having previously vacated the place
altogether. Or it could have happened within a period during which there were
no business operations going on there. In either case, the fact remains that
the first respondent was, at the relevant time, not in physical possession of
the property in question. As for his mental attitude concerning physical
control, or detentio, of the
premises, I find that whatever concept of such control he might have
entertained in his mind did not find expression in events on the ground. He
left no indication on the premises, for instance skeleton staff, that he, or at
least his business, was still physically present thereon. The probabilities, in
my view, favour a finding in support of the appellants' contention that the
first respondent had relinquished possession of the premises on some unknown
occasion, before the date and time of the alleged spoliation.
In the final result, it is the finding of this court that
the first respondent failed to discharge the onus that he bore, to prove the compound referred to by the cited
authority, of a physical situation and of a mental state involving the physical
control or detentio of the thing, that is the premises in question, at the
time of the alleged spoliation. Accordingly, not having been in possession
of the premises at the relevant time, he could not have been unlawfully
dispossessed. In view of the fact that the alleged possession has not been
proved, it follows that the need to qualify it as either peaceful or
undisturbed falls away.
There is therefore merit in the second ground of appeal
cited above, and it is upheld.
I am, in the final analysis, satisfied that the appellants
proffered valid defences to the first respondent's claim for a spoliation
order.
It should be pointed out that there is, on record, a
substantial amount of evidence to suggest that the first respondent's past
possession of the premises in question was neither peaceful nor undisturbed. This
evidence is, however, no longer relevant in view of the finding made that the
first respondent was not in possession, peaceful or otherwise, of the premises
in question at the time of the alleged dispossession.
Since I consider the finding of this court on the
competency of the order appealed against and also on whether or not spoliation
was proved to be dispositive of this appeal, I do not consider it necessary to
address the other grounds of appeal given by the appellant.
Accordingly, I make the following order.
1. The appeal be and is hereby allowed.
2. The order of the court a quo is set aside and
substituted with the following:
“The application be and is hereby dismissed with costs.”
3. The first respondent shall bear the costs of
this appeal.
