Spoliation or Mandament van Spolie re: Approach, Claim of Abandonment and Freedom from Arbitrary Eviction

SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA
Ruled By: CHIDYAUSIKU CJ

THE FACTS The facts of this case are succinctly set out by the learned Judge in the court a quo. I will summarise them as follows. The parties to this matter are involved in a longstanding dispute over the control and ownership of Glencairn Mine in Kadoma ("the mine"). The fourth applicant ("Timba"), through the first applicant, ...

THE FACTS

The facts of this case are succinctly set out by the learned Judge in the court a quo. I will summarise them as follows.

The parties to this matter are involved in a longstanding dispute over the control and ownership of Glencairn Mine in Kadoma ("the mine"). The fourth applicant ("Timba"), through the first applicant, and the first and second respondents ("the Rushwayas") are shareholders in the third applicant, which owns the mine at the centre of the dispute. On 11 October 2010, the Magistrate's Court at Kadoma, in case no. CRB B044/10, directed the first, third and fourth applicants to co-exist with the Rushwayas at the mine pending resolution of a dispute over the shareholding in the third applicant. The Rushwayas moved onto the mine in terms of the Magistrate's Court's ruling.

It would appear that that ruling is extant and has never been set aside.

On 3 May 2011, following a series of lawsuits, the Rushwayas entered into an Agreement of Sale ("the Agreement") with Timba in terms of which they sold to the latter their rights and interest in Tolrose Investments (Pvt) Ltd and Aepromm Resources (Pvt) Ltd, in contemplation of a clean break between the parties. That Agreement was meant to end all lawsuits between the parties.

However, following the signature by the parties of that Agreement, disputes between the parties persisted. In particular, the Rushwayas, on or about 6 June 2011, wrote to the Mining Engineer concerning the appointment of Mr E Mudimu as the Mine Manager and complaining that, as a claim holder, they were not consulted on this appointment. The Mining Engineer, by letter dated 20 June 2011 addressed to "The Operator (whoever that is), Glencairn Mine", cancelled the appointment of Mr Mudimu as the Mine Manager and suspended all operations at the mine pending a proper manager's appointment. This prompted the application, which appears to me to all intents and purposes to be an application for the review of the Mining Engineer's decision.

The applicants were successful.

The Rushwayas appealed to the Supreme Court against that judgment. The appeal was heard and judgment handed down on 16 July 2012. I was handed a copy of this judgment during submissions in this matter. The Rushwayas' appeal was dismissed on the ground that the Rushwayas had appealed against that part of the judgment which affected the Mining Engineer and not them. It was for the Mining Engineer to appeal against that part of the judgment. It was held that the Rushwayas could only appeal against the interim interdict.

However, this judgment, in my view, has no bearing on what transpired at the mine on 5 April 2012, which events form the basis of the applicants' application for a spoliation order.

The events of 28 March 2012 are established by the evidence on a balance of probabilities. The learned Judge's finding in this regard cannot be faulted.

The Messenger of Court's Return of Service, which is on record, shows that on 28 March 2012, in pursuance of the order of the Magistrate's Court, in case no. CRB B044/10, the Messenger of Court reinstated the Rushwayas at the mine. The Return of Service reads in relevant part as follows:

"Placed Mr Jameson Rushwaya and Mrs Annie Rushwaya at Tolrose Mine to co-exist with Mr Patterson F Timba and others with assistance of Constables Kasero and Chikwature accompanied by Madzivanyika and Simoni – Support Unit ZRP."

Thus, it is quite clear that the Rushwayas' return onto the mine on 28 March 2012 was in pursuance of the lawful Magistrate's Court order and cannot constitute spoliation. Indeed, it would appear that the applicants did not argue that the events of 28 March 2012 constituted spoliation.

It is, however, the events of 5 April 2012 that form the basis of the application for spoliation.

Timba, in paragraph 13 of the founding affidavit in the court a quo, makes the following averments upon which the application for spoliation is founded:

"13. Regrettably, in a calculated move, the first and second respondents through the assistance of the third and fourth respondents (the Messenger of Court and Commissioner Mufandaedza), and in the company of a mob of about forty (40) to fifty (50) youths, invaded Glencairn Mine on the 5^th of April 2012. The third respondent confirmed that he was armed with instructions of the fourth respondent to stop at nothing in ensuring the first and second respondents' access to the mine, changed all locks at the premises, inserted a new set of locks and subsequently handed the keys over to the first respondent. I struggle to comprehend how this matter may involve a Commissioner of Police unless the Commissioner is involved in a hazy and clearly unlawful crusade. I have never understood the position of the law to be that a Commissioner of the Zimbabwe Republic Police can have the lawful entitlement to issue orders to a Messenger of Court…,."

The Rushwayas deny that a Messenger of Court ever visited the mine on 5 April 2012. They only admit a visit by the Messenger of Court to the mine on 28 March 2012.

Thus, there is a dispute of fact as to what occurred at the mine on 5 April 2012. The learned Judge in the court a quo decided to adopt a robust approach and resolved the dispute of fact in favour of the Rushwayas. This is what she had to say in this regard at pages 5-6 of the cyclostyled judgment HH239-12:

"The applicants submitted that the first, second and third respondents did not deny in the opposing affidavits that the third respondent replaced the keys at the mine and gave the new keys to the first and second respondents. The first and second respondents deny that the third respondent ever visited the mine on 5 April 2012 and alleged that, if he did so, it was not on their instructions. The third respondent denied ever visiting the mine on 5 April 2012. The submissions by the parties clearly raise a dispute of fact whether or not the third respondent visited the mine on 5 April (2012) and conducted himself as alleged by the applicants. I am, however, of the view that I can adopt a robust approach and resolve the dispute on the papers filed of record. I am inclined to adopt the robust approach in view of the fact that an application stands or falls on the papers filed of record. The applicants were well represented and an advocate was briefed to represent them. Therefore, it can be assumed that they were satisfied with the adequacy of their pleadings.

It is trite that the onus to prove dispossession rests with the applicants. The onus is different from other urgent chamber applications where an applicant must establish a prima facie case. In the case of applications for spoliatory relief, the onus is on a balance of probabilities given that the relief is final in effect. It is therefore not enough for an applicant to make bare allegations.

The applicants in the present matter appear to me to have made bare allegations of wrongful or unlawful dispossession. It is alleged that the third respondent 'invaded' the mine in the company of a mob of forty to fifty youths. The mob must therefore have been rowdy and caused mayhem. There also must have been representatives of the applicants on the mine who witnessed the invasion, the 5^th of April being a week day. The fourth applicant, who deposed to the founding affidavit, does not state that he was at the mine when the third respondent is alleged to have locked out the applicants. It would have been helpful, if not imperative, for the applicants to file supporting affidavits of those who witnessed the alleged invasion and therefore dispossession. However, the applicants did not consider it necessary to do so.

Mr Mpofu submitted that the first, second and third respondents did not dispute that locks were broken and (that) this amounts to acceptance of the applicants' allegations. The applicants, however, overlook that the third respondent insisted that he only visited the mine on 13 and 28 March 2012. He filed the returns of service dated 13 and 28 March 2012 as proof of his visits to (the) mine on those days. The conclusion that can be arrived at is that if the third respondent states that he never visited the mine on 5 April 2012, he cannot be said to be accepting that he removed and replaced locks on the mine on 5 April 2012.

The first and second respondents maintained that if the third respondent went to the mine on 5 April 2012, it was not on their instructions. The first respondent observed on page(s) 10 to 11 of his opposing affidavit that:

'According to the returns of service in our possession, the third respondent served the co-existence order on 13^th March 2012 and the said Return of Service indicates that the applicants were given seven days to comply with the court order. The third respondent only went back fifteen days later on 28 March 2012 and he remarked:

"Placed Mr Jameson Rushwaya and Mrs Annie Rushwaya at Tolrose Mine to co-exist with Mr Patterson F Timba…,."

He never mentioned that he evicted the applicants and indeed he did not do that.'

The respondents further denied, in paragraph 21 of the first respondent's opposing affidavit, (that) a mob invaded the mine. They, in fact, accused the applicants of bringing youths from Harare to cause commotion at the mine and refer to the police reference of the complainant (the complaint?) that they made to the police. It is therefore clear that the first and second respondents have denied that the third respondent ever visited the mine on 5 April 2012."…,.

In my view, that the reasoning and conclusion of the learned Judge a quo in this respect cannot be faulted. The probability of an appeal court coming to a different conclusion from that of the court a quo is very remote.

It is apparent from evidence elsewhere in the record that Timba did appoint a manager who was resident at the mine and also had an agent who was resident at the mine. These are people whom one would have expected to depose to affidavits with firsthand information in support of Timba's version of what transpired at the mine on 5 April 2012. However, Timba chose not to make available firsthand evidence of what transpired at the mine on 5 April 2012….,.

Timba did not explain to the court why it was difficult for him to provide firsthand evidence of an occurrence that must have been witnessed, if indeed it did occur, by a lot of people.

In the result, I hold the view that the probabilities of an appeal court coming to a different conclusion from that of the court a quo on the issue of spoliation of the applicants are very remote.

For the foregoing reasons, the prospects of success against the court a quo's refusal to grant spoliation are minimal. For that reason, I dismiss the application to have the appeal heard on an urgent basis.

HH50-09 : GRAMARA ENTERPRISES (PVT) LTD AND COLIN BAILIE CLOETE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LAND, LAND REFORM AND RESETTLEMENT AND MR NORMAN KAPANGA
Ruled By: MAVANGIRA J

In an application for spoliation (mandament van spolie) the issue is whether there has been or has not been unlawful dispossession. It is well established that in spoliation proceedings all that the applicant needs to prove is that: (i) He was in peaceful and undisturbed possession of the property. (ii) That he had been unlawfully ...

HH06-08 : DIOCESE OF HARARE vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA AND RETIRED BISHOP SEBASTIAN BAKARE
Ruled By: HUNGWE J

The requirements for obtaining an order mandament van spolie (spoliation order) are met when: (a) A person has been deprived unlawfully of the whole or part of his possession of movable or immovable corporeal: and also (b) A person has been deprived unlawfully of his quasi-possession of a movable or immovable incorporeal. The quality of possession has been expressed ...

The requirements for obtaining an order mandament van spolie (spoliation order) are met when:

(a) A person has been deprived unlawfully of the whole or part of his possession of movable or immovable corporeal: and also

(b) A person has been deprived unlawfully of his quasi-possession of a movable or immovable incorporeal.

The quality of possession has been expressed as thus: "Possession" is somewhat widely interpreted, it has been allowed to an agent, a trustee, a lessee, a depositary, a bona fide possessor who is legally incapable of owning the property in dispute, and, in fact, to any person holding property with the intention of securing some benefit to himself, either as agent of the owner, such as a borrower, or even as against the owner, such as one claiming a lien or a pledge, or possession under a hire-purchase agreement.

There is no numerus clausus of persons to whom the remedy is available. Neither is it necessary for the applicant to place himself in a special legal category of persons who have a possessory relationship with an object: proof of the existence of any such sufficient relationship at the relevant time will do.

The question of the nature of the requisite possession has been approached from the point of the objects of the remedy, with regard to the harm it is designed to prevent: thus "indeed, there are many cases which seem to imply that the Court is even more interested in discouraging conduct conducive to a breach of the peace or calculated to bring the law into contempt or to undermine respect for orderly conduct than in assisting the dispossessed person, and that it will therefore not look too closely into the juridical nature of the possession alleged, together with an attempt by the respondent to "take the law into his own hands", in which case he will be required to restore the status quo ante."

The mandament is there to protect possession, not access. Such possession must be exclusive in the sense of being to the exclusion of others. The possession of keys by a multiplicity of parties waters down possession, and may become so dilute that it ceases to be the sort of possession that is required to achieve the protection of mandament.

The real purpose of the mandament was to prevent breaches of the peace. If someone is in exclusive possession and exercises such possession, then deprivation thereof can, and often does, lead to a breach of the peace. No such breach would in the ordinary course of events take place where a large number of persons have access, rather than possession, of the property in question.

Civil possession, which is physical possession, detentio, accompanied by intention to hold such possession to the exclusion of everyone else, animus possidendi, would certainly qualify an applicant for the mandament . An applicant for the mandament must demonstrate that he was in exclusive possession of the property before he is entitled to the mandament.

It should be recalled that the real purpose of the mandament was to prevent breaches of the peace. It was intended to protect possession, not access.

The possession is not possession in the juridical sense since it would suffice if the holding by the plaintiff was with the intention of securing some benefit for him. The causa for the plaintiff's possession is irrelevant and it is also irrelevant whether the defendant has a stronger right of possession. Actual possession and not the right to possession is protected.

HH06-08 : DIOCESE OF HARARE vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA AND RETIRED BISHOP SEBASTIAN BAKARE
Ruled By: HUNGWE J

The question of the application of the mandament for incorporeal rights eg. right to worship, assembly, association,etc, has been the subject of discussion in case law and in academic circles: Originally, the mandament only protected the physical possession of movable and immovable property. But in the course of centuries of development, the law entered the ...

HH31-09 : JEPHAT GUTE vs AMOS JUMBE
Ruled By: UCHENA J

An application for a spoliation order merely seeks to restore the status quo ante. The despoiled must be allowed to regain possession. The court can only order the restoration of the status quo ante without determining the parties' respective rights. The mandament van spolie is premised on the unlawful taking of property from another who ...

HH50-09 : GRAMARA ENTERPRISES (PVT) LTD AND COLIN BAILIE CLOETE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LAND, LAND REFORM AND RESETTLEMENT AND MR NORMAN KAPANGA
Ruled By: MAVANGIRA J

It is trite that in spoliation matters the court is not concerned with the nature of the applicant's occupation. What it is concerned with is that the respondent should not take the law into its own hands. Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve ...

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

There can be no doubt that spoliation as a remedy has (as) its core value or objective protection to possession of property against unlawful dispossession. This is a remedy that has been recognized in our jurisdiction and beyond for over decades. Two allegations must be made and proved, namely (a) that the applicant was in ...

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

It is a fundamental principle that no man is allowed to take the law into his own hands: no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, ...

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to the objectives, it is necessary for the status quo ante to be restored until such time as ...

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

It has not been established as part of our law in any other decided case that an applicant for a spoliation order has to show some reasonable or plausible claim to the property despoiled.the decided cases referred to.are quite clear that the court does not at all look into the juridical nature of the ...

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

In an application for a spoliation order, an applicant does not have to prove some reasonable or plausible claim to the property, let alone the legality or otherwise of his possession of the property in question.

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

Can unlawful occupation constitute a defence to a claim for mandament van spolie? It is quite clear that the authorities are divergent on this issue. One line of authorities, which includes judgments of the High Court of Zimbabwe, supports the contention that unlawful occupation can be a defence: while other authorities, that include High Court ...

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

This is an application for a spoliation order. The wise words of...in the classic case of...enunciated the principles of a spoliation order as follows: "It is a fundamental principle that no man is allowed to take the law into his own hands, no one is permitted to dispossess another forcibly or wrongfully and against his ...

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

The legal requirements for the relief sought by the applicant are also laid out in the case of...as follows: "It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and there was forcible or wrongful interference with his possession of that thing...that spoliatus ante omnia ...

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

In casu, the applicant has to show and prove basically two issues: that he was in peaceful and undisturbed possession of...together with the property listed...and secondly that the respondent...deprived him of the possession forcibly or wrongfully against his consent.

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

I am satisfied that the relief claimed by the applicant-mandament van spolie-cannot be granted in view of factual disputes of fact in the matter. The applicant has not shown and proved that he was in peaceful and undisturbed possession of the motor vehicle and other property in issue.

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

It cannot be resolved on the papers filed whether the applicant was unlawfully deprived of the possession of his property by the defendant. The merits of both the applicant's and respondent's right of possession of the property are not justiciable at this stage...

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

The denial, by the respondent, of material allegations made by the applicant cannot be resolved on the papers filed. There are, therefore, material disputes of fact in the matter which make it virtually impossible for this court to grant the relief claimed of restoration of possession ante omnia.

HB16-12 : BEKITHEMBA NYATHI AND TWO OTHERS vs THE OFFICER-IN-CHARGE (BULAWAYO CENTRAL POLICE STATION) AND TWO OTHERS
Ruled By: NDOU J

It is trite that spoliation is any illicit deprivation of another of the right to possession which he has whether in regard to movable or immovable property or even in regard to a legal right. In casu, the articles were seized by the police when the latter searched them during the arrest for convening ...

HB16-12 : BEKITHEMBA NYATHI AND TWO OTHERS vs THE OFFICER-IN-CHARGE (BULAWAYO CENTRAL POLICE STATION) AND TWO OTHERS
Ruled By: NDOU J

The purpose of the mandament van spolie is to preserve law and order and discourage persons from taking the law into their own hands. In this case, the first respondent is empowered to act in the manner he did by sections 49, 51, and 52 of the Criminal Procedure and Evidence Act [Chapter 9:07]. ...

HH34-09 : JOHN CAMERON ASHER vs MINISTER OF STATE RESPONSIBLE FOR NATIONALL SECURITY, LANDS, LAND REFORM AND RESETTLEMENT IN THE PRESIDENT'S OFFICE AND T. NYIKADZINO
Ruled By: CHATUKUTA J

The applicant seeks a spoliation order. He claims to have been in peaceful and undisturbed possession of.He alleges that possession was disturbed by the second respondent on.The group, acting under the instruction of the second respondent, took occupation of the farm.and locked the applicant out. The applicant submits that the second respondent did not have ...

HH34-09 : JOHN CAMERON ASHER vs MINISTER OF STATE RESPONSIBLE FOR NATIONALL SECURITY, LANDS, LAND REFORM AND RESETTLEMENT IN THE PRESIDENT'S OFFICE AND T. NYIKADZINO
Ruled By: CHATUKUTA J

The second respondent has attempted to discredit the application. He submits that the applicant has not placed before the court proof that there had been disturbances on the farm. He suggested that this would have been achieved by way of an affidavit by a person who witnessed the disturbances as the applicant was not at ...

HH16-09 : RICHARD ETHEREDGE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LANDS, LAND REFORM AND RESETTLEMENT and SENATOR EDNA MADZONGWE
Ruled By: GOWORA J

The facts surrounding this dispute are as follows.The applicant and his sons occupy Stockdale Farm, which has since been gazetted by Government for acquisition under the land reform program. In June 2008, various persons moved forcibly onto the farm, under the leadership of one George Moyo, in an effort to occupy the same. The applicant ...

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.

The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring authority and is responsible for the administration and implementation of the Land Acquisition Act [Chapter 20:10] and other allied pieces of legislation currently in force.

The second respondent is Nyasha Chikafu who is, in terms of the Land Acquisition Act [Chapter 20:10], the beneficiary of subdivision 1 of Dodhill in Chegutu District, Mashonaland West Province; which, incidentally, the applicants claim to have legitimate right over.

For purposes of this judgment, I will refer to the property in question as Dodhill Farm.

THE BACKGROUND

From the papers filed of record, coupled with the submissions made by the two legal practitioners representing the applicants and the second respondent, there are conflicting perceptions as regards the current status of Dodhill Farm.

The applicants feel very strongly that annexure '2' confirms their legitimate possession of the property.

Annexure '2' is a court order which was consented to at a time when the other portions of the property were voluntarily conceded to the State for purposes of agricultural resettlement following the formal gazetting of the applicants farm in January of 2005.

The second respondent's position is that following the promulgation of the constitutional amendment number 17/05, Dodhill Farm was properly allocated to her by the first respondent.

I accept the position adopted by the second respondent, that, annexure '2' was overridden by the subsequent promulgation of constitutional amendment number 17/05 which culminated in the introduction of, inter alia, section 16B(2)(a)(i) of the Constitution which conferred the ownership of the farm in question firmly in the hands of the first respondent.

I will therefore proceed on the basis that Dodhill Farm was indeed allocated to the second respondent.

APPLICANTS CASE

The applicants case is predicated upon the mandament van spolie.

Their argument is, that, on the evening of Thursday 5th day of February 2009, the second respondent, without the applicants prior knowledge and consent, summarily entered Dodhill Farm and set up a camp near the main security gate housing the applicants residence, barns, and other buildings. A tent was put up as well as a makeshift shelter. The allegations went further to say, that, the second respondent introduced or brought with her some youth who camped in the premises.

On 20 February 2009, the second respondent summarily, and without the consent of the applicants, commenced ploughing in the applicants fields where tobacco had just been harvested and on which the applicants had intended to plough an onion crop, in conformity, with the applicants programme of rotational cultivation.

The applicants outlined other incidents which amounted to the second respondent's summary occupation of Dodhill Farm.

The applicants sought the services of the police to have the status quo ante restored - but to no avail.

According to the applicants, when the second respondent was confronted, she said she had a right to occupy Dodhill Farm on the strength of her offer letter, a copy of which is marked annexure '3' in the papers filed of record.

THE SECOND RESPONDENT'S CASE

The second respondent's response to the allegations of unlawful dispossession were basically three-pronged, viz;

(i) Lack of urgency in this matter;

(ii) Lack of locus standi on the party of the applicants in bringing this application; and

(iii) In the alternative, a complete denial of the allegations levelled against her by the applicants.

In order for one to effectively deal with the second respondent's two main defences, one must consider whether the allegations by the applicants are true or not. If they are not, the two main defences would fall away.

If the allegations are found to be true, the court must then proceed to deal with those allegations in so far as they impact on the defences of lack of urgency and locus standi on the applicants.

THE ALLEGATIONS BY THE APPLICANTS

In her notice of opposition, the second respondent has emphasized the point that the ownership of Dodhill Farm now vests in the first respondent and the fact that her offer letter authorizes her to stay on the farm in question to carry out agricultural activities.

I wish to re-affirm the accepted legal position, that, in applications for a spoliation order, the question of ownership of the property in issue does not arise. As I will demonstrate later in this judgment, lawfulness to possession of the farm is equally irrelevant.

There are numerous aspects which can be gleaned from the second respondent's notice of opposition which confirm the allegations levelled against her, not only on a balance of probabilities but beyond reasonable doubt.

(i) Firstly, despite her attempt to paint the picture that the applicants consented to her occupation of the farm, the second respondent gives a completely different picture when she states:

“…,. Applicants seem to be complaining, that, I should have sought their permission first before ploughing and that they wanted to plant onions on the land which I ploughed. I am advised, which advise I accept, that, I have the lawful authority to carry out agricultural activities at the farm in the form of an offer letter. Since applicants do not own the farm, there is no reason at all for me to seek their permission to do that which is lawful.

In any event, the applicants have no right whatsoever to continue carrying out agricultural activities at the farm since doing so amounts to a criminal offence. I intend to allow applicants to finish harvesting their crops before I commence to prepare the land…,.”…,.

In my view, the above averments confirm the point made by the applicants, that, the second respondent simply moved onto Dodhill Farm without their consent, because, in her view (of course as advised by her counsel), the applicants have no right to be on the farm.

It is inconceivable, that, given her perception of the law, as advised by her counsel, the second respondent would have sought the consent of the applicants before occupying the disputed property.

Further, in her affidavit, the second respondent confirms, that, there were fights between her own employees and those of the applicants which culminated is some employees being arrested by the police from Chegutu.

If the second respondent had occupied the farm in question by consent there would have been no cause to have such running battles on the farm between the two groups of employees.

All in all, I am satisfied, that, a cursory perusal of the second's respondent's affidavit lends credence to the allegations raised by the applicants. I have absolutely no doubt in my mind, that, the second respondent acted in the manner complained of by the applicants....,.

LOCUS STANDI

The issue of locus standi on the part of the applicants cannot be looked at in a vacuum. It must be looked at in the light of the legal position governing the principle of the mandament van spolie.

THE LEGAL POSITION

There can be no doubt, that, spoliation, as a remedy, has its core value or objective, protection to possession of property against unlawful dispossession.

This is a remedy that has been recognized in our jurisdiction and beyond for over decades.

In dealing with the principles of spoliation, I find the views of HERBSTEIN J quite apposite when the learned judge stated:

“…,. Two allegations must be made and proved, namely;

(a) That applicant was in peaceful and undisturbed possession of the property; and
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.”

See Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230E…,.

In Amler's Precedents of Pleadings, 3rd Edition LTC HARM and JH HUGO, Butterworths…, it is stated:

“Unlawfulness in this context means, a dispossession without plaintiff's consent or due legal process.”

This time honoured principle of our law has been enunciated in a plethora of cases in our jurisdiction and beyond: see, for example; Nino Bonino v De Lange 1906 TS 120…,.; Silo v Naude 1929 AD 21; Mutsotso and Others v Commissioner of Police and Anor 1993 (2) ZLR 329 (H); Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

In the classic and leading case of Nino Bonino v De Lange 1906 TS 120 INNES CJ…, had this to say:

“It is a fundamental principle, that, no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.”

In Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) REYNOLDS J remarked as follows:

“Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party….,. The lawfulness or otherwise of the applicants possession of the property does not fall for considerations at all. In fact, the classic generalization is sometime made, that, in respect of spoliation actions…, even a robber or thief is entitled to be restored possession of the stolen property.”…,.

Counsel for the second respondent passionately argued, that, the applicants had no locus standi to bring an application for spoliation.

The main thrust of his argument was, that, because the applicants had exceeded the 45 and 90 day statuary maximum periods which allows them to remain on the farm and the homestead respectively (section 3 of Gazetted Land (Consequential Provisions) Act [Chapter 20:28]), therefore, the applicants must not be protected by this court.

In counsel's view, which borrowed heavily from the position adopted by my learned brother UCHENA J in the case of Andrew Roy Ferrera and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08, if this court accepted locus standi on the part of the applicants, then, the court would be sanctioning an illegal stay on Dodhill Farm by the applicants since the applicants are occupying that farm in complete violation of the law.

There was also an attempt by the second respondent's counsel to seek to rely on the decision by their Lordships in one of the much celebrated land cases in this country, viz Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04.

Simplified, the argument, as put forward by the second respondent's counsel, was that because the applicants hands are tainted with their illegal occupation of Dodhill Farm, the court could not entertain them let alone grant them an order that would perpetuate their continued stay on the farm.

The applicants counsel held a different view.

She argued, that, once the applicants possession is established and there is proof of dispossession without reference to due process, the applicants locus standi, is thereby established.

I agree with this position.

The position adopted by the second's respondent's counsel is fraught with so many challenges.

Firstly, his approach would be an attempt to re-define the very basic requirements of a mandament van spolie which is not concerned with the legality or otherwise of the possession itself: see the remarks of REYNOLDS J in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

I am fully cognisant of other decisions from South Africa which have attempted to shift from the orthodox approach in dealing with spoliation matters.

One such matter is the case of Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250…, where VAN DEN HEEVER J stated as follows:

“Moreover, the rule that goods dispossessed against the will of the possessor must be restored forthwith, is not an absolute one.

The reason for the rule is, according to the authorities, certainly not because the fact of possession is elevated to a right stronger than plenum dominimum, but, to discourage breaches of the peace by self help in the case of disputes.

Despite generalizations that even the thief or robbers entitled to be restored to possession, I know of no instance where our courts, which disapprove of metaphorical grubby hands, have come to the assistance of an applicant who admits that he has no right vis-a-vis the respondent to the possession he seeks to have restored to him.”…,.

Commenting on Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250 and another similarly decided case of Coetzee v Coetzee 1982 (1) SA 933, the learned judge, MAKARAU J, in the recent case of Shiriyekutanga Bus Service v Total Zimbabwe remarked as follows:

“With respect, the weight of authority appears to be against the learned judge. It has not been established as part of our law in any other decided case that an application for spoliation order has to show some reasonable or plausible claim to the property despoiled.

The learned judge seems to suggest, that, the court determining an application for a spoliation order will look into but possession of the applicant: see Coetzee v Coetzee (supra).

I hold a different opinion, and do so with the greatest of respect and due deference to the learned judge.

The decided cases referred to by GUBBAY CJ in Botha and Another v Bennet (supra) are quite clear that the court does not at all look into the juridical nature of the possession claimed.

The doctrine of stare decisis binds me to follow the decision in Botha and Another v Bennet (supra) and Coetzee v Coetzee (supra) HH64-08.”...,.

I entirely associate myself with the position adopted by the learned judge MAKARAU J, that, in an application for spoliation order, an applicant does not have to prove some reasonable or plausible claim to the property, let alone the legality or otherwise of his possession of the property in question.

With extreme due deference to the learned judge UCHENA J, I do not agree with the approach he seems to have adopted in Andrew Roy Ferreira and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08 when he made a finding, that, because the applicant in that case had defiantly continued to be on the farm in question, therefore, he could not be granted spoliation.

In my view, the learned judge prematurely dealt with the rights of the parties to the farm when, in fact, this was not the issue at stake.

It does seem to me, that, all the learned judge was supposed to consider was whether or not the applicant had been in peaceful and undisturbed possession of the farming land prior to the alleged dispossession and not to consider who was legally supposed to have been in possession of the farming land at the time of the alleged dispossession by the offeree.

In any event, such an approach, in my view, went against the weight of decades of precedent in spoliation matters.

The second challenge which is apparent from the position adopted by the second respondent's counsel is the failure to appreciate, that, by denying the applicants locus standi, the court will be sanctioning and encouraging self-help exercise by those in the position of the second respondent.

In my view, such a position would be tantamount to perpetuating an infraction of the law to the dispossession by the second respondent without following due process of law.

I hold a very strong view, that, it was certainly not the intention of the legislature to give those armed with offer letters, like the second respondent, powers of evicting defiant former farm owners like the applicants.

Such a scenario would create chaos in our farms.

Our courts must be careful not to encourage lawlessness in our farms by subtley condoning, by implication or inference, the conduct of land beneficiaries who believe they have a legitimate right to occupy land which hitherto belonged to those farm owners who choose to stubbornly or defiantly remain on the farm at a time they should have vacated.

It is not a question of weighing who, between the former owner and a beneficiary, has a preferred or a more appealing right. It is simply a question of encouraging due process of law.

This is not achieved by giving court orders which give the impression offerees can themselves carry out eviction processes.

The legislature was quite conscious, that, there would be defiant former farm owners who would endeavour to continue with farming operations after the lapse of the 90-day statutory period.

In its wisdom, the legislature created a specific procedure to deal with such errant or defiant farmers. This procedure is well spelt out in the Gazetted Lands (Consequential Provisions) Act: see sections 3-5 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

My brother judge, HUNGWE J, correctly summed up the procedure when he stated:

“There is a specific procedure for eviction in respect of land acquired in terms of the Gazetted Lands (Consequential Provisions) Act [Cap 20:28]. The right to claim eviction is only exercisable by the acquiring authority. That process is not initiated by a beneficiary under the land reform programme or by an officer of the acquiring authority.”

See Pondoro (Pvt) Ltd and Another v Nemakonde and Anor HH18-08.

Consistent views were also echoed by my brother judge, BHUNU J, when he stated:

“Although the applicant is entitled to occupy the land, he is not entitled to evict the former owner…, because he does not own the land and has not, at any stage, acquired possession.

It is now settled law, that, a lessee who has not acquired vacant possession cannot evict anyone from the property. It is the prerogative of the acquiring authority to evict the first respondent.”

See Zakeyo Mereki v Bell In (Pvt) Ltd and Deputy Sheriff Harare (N.O.).

I note with extreme discomfort, that, the second respondent's counsel has referred to Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04 as authority for the proposition that the applicants have no locus standi in this case.

With respect, that case has been quoted out of context.

That case is quite distinguishable from the instant case. In that case, the focus was on considering the requirements of an interim interdict as opposed to the instant case which is primarily focused on considering the requirements of a mandament van spolie.

These two principles are quire distinct and cannot be mistaken for each other.

Counsel for the second respondent also argued, that, according to his understanding, section 16B of the Constitution of Zimbabwe, as well as section 3 of the Gazetted Lands (Consequential Provisions) Act have taken away the remedy of spoliation from our common law.

I have painstakingly perused the cited sections. I do not agree with such sentiments.

In the final analysis, I am more than satisfied, that, the applicants have locus standi to bring this action, and, having accepted their allegations against the second respondent, I am inclined to grant the provisional order sought in terms of the papers filed.

HH95-09 : FORRESTER ESTATE P/L vs MUTUMWAPAVI CHARLES RITCHIE VENGESAYI
Ruled By: CHATUKUTA J

The applicant sought, and was granted a mandament van spolie. The judgment was handed down on 8 September 2009, with reasons. However, the respondent has approached me for written reasons for my judgment. The following are my reasons. The applicant, through its Director, one Heinrich von Pezold, made the following averments in the founding affidavit: The applicant is the ...

HH95-09 : FORRESTER ESTATE P/L vs MUTUMWAPAVI CHARLES RITCHIE VENGESAYI
Ruled By: CHATUKUTA J

In an application of this nature, the applicant must establish, on a balance of probability, that: (a) It was in peaceful possession of the property; and (b) The possession was unlawfully interrupted by the respondent. See Botha Anor v Barret 1996 (2) ZLR 73; Van t'Hoff v Van t'Hoff Ors (1) 1988 (1) ZLR 294 ...

In an application of this nature, the applicant must establish, on a balance of probability, that:

(a) It was in peaceful possession of the property; and

(b) The possession was unlawfully interrupted by the respondent.

See Botha & Anor v Barret 1996 (2) ZLR 73; Van t'Hoff v Van t'Hoff & Ors (1) 1988 (1) ZLR 294 (HC); Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H); and Karoi (Pvt) Ltd & Anor v Brigadier Mujaji HH23-07.

Counsel for the respondent conceded that the applicant was in peaceful possession of the property. He conceded that the respondent had left seven employees on the farm. He, however, contended that this did not amount to unlawful deprivation of property. He referred me to The Law of Property, SILDERBERG and SCHOEMAN, 3^rd ed..., where it is observed..., that –

“8.2 A mandament van spolie is aimed only at the recovery of lost possession, and does not lie where there is mere disturbance of possession, or threat that possession will be disturbed. In these latter circumstances, the possessor may apply for a prohibitory interdict instead...,.”

The only issue for determination is, therefore, whether or not the respondent's conduct amounted to deprivation of property.

It appears to me that occupation of the farm by the respondent goes beyond “a mere disturbance”. Counsel for the respondent did not substantiate why the respondent considered his conduct in issue as having been “a mere disturbance”. The act of leaving behind seven employees, coupled with the indications by the respondent that he intended to take occupation of the homestead, and the entire piece of land allocated to him, amounts, in my view, to dispossession. The applicant can no longer claim to be in control of that piece of land currently occupied by the respondent's employees.

Had the respondent left the farm with all his personnel, then one would have classified his visit to the farm as a mere disturbance, as envisaged in The Law of Property, SILDERBERG and SCHOEMAN, 3^rd ed...,.

It also appears that counsel for the respondent was selective in his reference to The Law of Property, SILDERBERG and SCHOEMAN, 3^rd ed...,. At page..., of The Law of Property, SILDERBERG and SCHOEMAN, 3^rd ed..., it is observed that –

“A possessor need not have been dispossessed of the whole thing before he is entitled to claim a spoliation order. Even where he has been deprived of possession of only a part thereof, he is entitled to this relief.”

The same observations were made in Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) where it was held that a disturbance of possession amounts to spoliation. ADDLESON J observed..., as follows –

“The possession on which he relies need not be of the whole of the property, and he need not have lost the whole of that property at the hands of the invader, before he is entitled to claim a spoliation order. A disturbance of possession, without deprivation of the whole of it, is sufficient. See Van Rooyen en'n Ander v Burger 1960 (4) SA 356 (O) at pp 362-3; confirmed on appeal in 1961 (1) SA 159 (O).”

See also The Civil Practice of the Magistrates Court in South Africa, JONES and BUCKLE, 8^th ed...,.

The respondent did occupy part of the farm.

It appears from the above authorities that it is irrelevant that a small part of the farm is occupied. Any such occupation amounts to dispossession.

It is my view that the applicant has, therefore, established its entitlement to the relief sought.

HH128-09 : ROUTE TOUTE BV & OTHERS vs MINISTER OF NATIONAL SECURITY RESPONSIBLE FOR LAND LAND REFORM AND RESETTLEMENT & OTHERS
Ruled By: PATEL J

The 1st applicant in this matter is a business corporation registered in the Netherlands. The other three applicants are commercial farming entities registered in Zimbabwe. The applicants together, directly or indirectly, are the registered owners and leaseholders of Fangudu Farm (the farm). They claim the right to continue to own ...

Background

The applicants together, as I have stated, seek to enforce their ownership and leasehold rights in the farm. They claim protection against compulsory acquisition by virtue of two separate bilateral treaties concluded by the Government of Zimbabwe with the governments of the Netherlands and Malaysia.

On the 21st of January 2005, the 1st respondent published a preliminary notice of his intention to acquire the farm for resettlement purposes. On the 10th of June 2005, he issued an acquisition order compulsorily acquiring the farm. Thereafter, on the 22nd of July 2005, he lodged an application for the confirmation of the acquisition. This application before the Administrative Court has yet to be finalised, having been overtaken by legislative enactment.

On the 8th of August 2006, the 1st respondent caused to be delivered a notice of eviction upon the applicants. Subsequently, an arrangement was negotiated between the parties not to enforce the eviction of the applicants. Nevertheless, on the 8th of November 2006, the 3rd respondent arrived to occupy the farm on the strength of the earlier notice of eviction and his letter of offer dated the 11th of July 2006 from the 1st respondent.

As a result of the 3rd respondent's actions, the applicants filed an urgent application to this Court and were granted a Provisional Order on the 22nd of November 2006.

The present proceedings are instituted to confirm the Provisional Order.

The Issues

The issues for determination in this matter, as I perceive them and as consequently argued by counsel, are as follows:

1....,.

2. The effect of the notice of eviction served by the 1st respondent upon the applicants; whether the applicants are entitled to continue in occupation until evicted by order of a competent court.

3. The effect of the letter of offer given to the 3rd respondent by the 1st respondent; whether this letter confers any right of occupation before the current occupier vacates the farm or is duly evicted by a court order or otherwise.....,.

The second issue for determination is the effect of the notice of eviction served by the first respondent upon the applicants; whether the applicants are entitled to continue in occupation until evicted by order of a competent court.

Counsel for the applicants submits that the notice of eviction that was served by the first respondent on the 8^th of August 2006, was not properly served. This is because it was handed to the Director of the third applicant at the farm itself and not at its registered office as required by section 40(2)(d) of the Interpretation Act [Chapter 1:01].

Section 40(2)(d) of the Interpretation Act [Chapter 1:01] provides that:

“Where an enactment authorizes or requires a document to be served on any person without directing it to be served in a particular manner, the service of that document may be effected –

(a)...,.; or

(b)...,.; or

(c)...,.; or

(d) In the case of a corporate body, or an association of persons, whether incorporated or not, by delivering it to a director, the secretary, or clerk of the body or association, at the registered or principal office of the body or association, or serving it by post on such director, secretary, or clerk, at such office; or

(e)...,.”

Given the wording employed in section 40(2)(d) of the Interpretation Act [Chapter 1:01], viz. “service..., may be effected”, I am not entirely persuaded that its provisions are peremptory to the extent of requiring strict compliance in every case.

Counsel for the applicants further argues that even if the notice of eviction was properly served, it has no statutory or other basis inasmuch as section 16B(3) of the Constitution of Zimbabwe excludes the application of the notice provisions stipulated in the Land Acquisition Act [Chapter 20:10] with respect to land acquired under section 16B(2) of the Constitution of Zimbabwe. Moreover, there was, at that time, no other law catering for eviction as envisaged by section 16B(6) of the Constitution of Zimbabwe.

Counsel for the first and fourth respondents conceded the statutory gap but submits that the notice of eviction was issued under the common law right of an owner to give any tenant or occupier reasonable notice to vacate the land or premises in question.

Section 16B of the Constitution of Zimbabwe did, in my view, create a statutory gap vis-a-vis the vacation of land acquired under that provision.

By virtue of section 16B(3) as read with section 16B(6) of the Constitution of Zimbabwe, Parliament specifically contemplated the enactment of legislation dealing with criminal prosecution and eviction of unlawful possessors or occupiers of State land. As a matter of principle, where the Constitution of Zimbabwe enjoins that anything should be done by, or under, statute, then that is the manner in which that thing should be done.

In the absence of such legislation, the Sate cannot resort to any other non-statutory basis for evicting a recalcitrant occupier.

Accordingly, as was eventually conceded by counsel for the first and fourth respondents, the notice of eviction in casu cannot be relied upon to secure the eviction of the applicants from the farm.

The Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] was promulgated on the 20^th of December 2006 to make certain provisions consequential to the enactment of section 16B of the Constitution of Zimbabwe with respect to the Gazetted land, viz. agricultural land referred to in section 16B(2) of the Constitution of Zimbabwe.

Section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28], in its relevant portions, stipulates as follows:

“(1) Subject to this section, no person may hold, use, or occupy Gazetted land without lawful authority.

(2)...,.

(3) If a former owner or occupier of Gazetted land, who is not lawfully authorised to occupy, hold, or use that land after the expiry of the appointed period referred to in subsection (2)(a) or (b), or in the case of a former owner or occupier referred to in section 2(b), does not cease to occupy his or her living quarters in contravention of proviso (ii) to section 2(b), he or she, shall be guilty of an offence and liable to a fine not exceeding level seven, or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.

(4) Any person, other than a person referred to in subsection (2), who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven, or imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.

(5) A court which has convicted a person of an offence in terms of subsection (3) or (4) shall issue an order to evict the person convicted from the land to which the offence relates.”

As is apparent, section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] is clearly designed to address the lacuna in the law that I have adverted to earlier.

It specifically provides for the prosecution and conviction of any person who continues to hold, use, or occupy Gazetted land after the stipulated period, and for the eviction of such person upon conviction.

What this means, in the instant case, is that the applicants are at large to remain in occupation of the farm and cannot be evicted therefrom except by due process, viz. by order of court, after prosecution and conviction in terms of section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

The third issue for determination is the effect of the offer letter given to the third respondent by the first respondent; whether this letter confers any right of occupation before the current occupier vacates the farm, or is duly evicted by a court order or otherwise.

The third respondent founds his claim to occupy the farm on his letter of offer, dated 11^th of July 2006, from the first respondent.

In this regard, counsel for the applicants contends that this offer letter is invalid for want of compliance with the provisions of the Agricultural Land Settlement Act [Chapter 20:01].

Sections 8 and 9 of the Agricultural Land Settlement Act [Chapter 20:01] enable the Minister to issue leases to applicants in respect of holdings of State land – but only after any such application has been referred to the Agricultural Land Settlement Board for its consideration and report. In any event, the Minister is not bound by any recommendation or report of the Agricultural Land Settlement Board.

In the instant case, there is no evidence that the third respondent's application to occupy and use the farm was granted after consideration by the Agricultural Land Settlement Board and the issuance of its report.

Does this render his offer letter invalid?

Section 2(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] defines an “offer letter” to mean:

“a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter.”

By virtue of section 6 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]:

“Any offer letter issued on or before the fixed date, that is not withdrawn by the acquiring authority is hereby validated.”

Taken in its literal and grammatical terms, section 6 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] must be construed to validate every offer letter that was issued before the 20^th of December 2006, including the third respondent's offer letter, notwithstanding any non-compliance with the requirements of the Agricultural Land Settlement Act [Chapter 20:01]....,.

What is relevant for present purposes is the third respondent's right to enter, occupy, and use, the farm in counter-position to the applicants pre-existing and continuing entitlement to do so.

The latter, as I have stated, are at liberty to remain in occupation until they are duly evicted by a court of competent jurisdiction. In contrast, the third respondent is presently armed with nothing more than his offer letter. This letter, as defined by statute, merely constitutes an offer by the State to allocate to the third respondent the piece of land described in the letter. It does not, per se, confer proprietory rights of use or occupation without due process. In other words, the third respondent cannot rely on the letter to enter or occupy the farm until the applicants have been duly evicted by court order issued in terms of section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

He cannot resort to self-help in order to obtain vacant possession. See in this respect the very pertinent remarks of KUDYA J in Karori & Another v Brigadier Mujaji HH23-07...,.

It follows that the applicants are entitled to the relief they seek against the third respondent.

It is accordingly declared and ordered as follows:

1. It be and is hereby declared that the Notice of Eviction delivered up to Fangudu (being Lot 1 of Fangudu in the District of Umtali and two contiguous pieces of land called Lot 1 of Essex and Remainder of Bomponi in the District of Umtali) on the 8th of August 2006 is invalid and of no force or effect.

2. It be and is hereby declared and ordered that the occupation of Fangudu by the third respondent and all other persons claiming occupation of Fangudu through him and/or the first respondent was and continues to be unlawful.

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT
Ruled By: BERE J

That sanity must always prevail is further provided for in section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] itself, which calls for the criminal prosecution of those former owners, or occupiers, who defiantly choose to remain on the acquired land. If the Legislature, in its wisdom, recognises, and provides for, a systematic way of ...

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT
Ruled By: BERE J

The whole motive of opposition to this application by the first and second respondents' achieves nothing except to re-affirm the first and second respondents' misconceived view that they had a right to evict the applicant by whatever means possible because of their offer letter, and the fact that the applicant had stayed on the farm ...

HH152-09 : PATRONELLA CHARUMBIRA In her capacity as the executrix dative of the estate of the late Adben Benjamin vs HUDSON MUSASA and REGISTRAR OF DEEDS and ASSISTANT MASTER
Ruled By: MUSAKWA J

According to counsel for the first respondent, the applicant should have stepped into the deceased's shoes in order to safeguard the interests of the estate. He referred to the case of Diana Farm (Pvt) Ltd v Madondo Another 1998 (2) ZLR 410 (HC). In that case, an executor to a deceased estate ...

HB102-09 : ERMANUS GERHADUS GROVE vs MARTIN MAKONESE and MRS MARWISA and MR CHIGARIRO
Ruled By: KAMOCHA J

The applicant in this matter seeks a provisional order in the following terms -“Pending finalization of this application, the respondents, acting personally, or through their employees, family, or agents, be and are hereby forthwith interdicted from:-(1) Entering upon, or continued unlawful occupation of Inogo Ranch. Should the respondents continue in occupation, the Deputy Sheriff, Kwekwe, be ...

The applicant in this matter seeks a provisional order in the following terms -

“Pending finalization of this application, the respondents, acting personally, or through their employees, family, or agents, be and are hereby forthwith interdicted from:-

(1) Entering upon, or continued unlawful occupation of Inogo Ranch. Should the respondents continue in occupation, the Deputy Sheriff, Kwekwe, be and is hereby ordered to remove the respondents, their employees, and agents, from Inogo Ranch;

(2) Interfering with applicant or his family and workers' occupation of the Ranch;

(3) Threatening the applicant, his family, and workers, with violence; and

(4) Interfering with applicant's operations at Inogo Ranch and, in particular, disrupting farming activities.”

The final order being sought calls on the respondents to show cause why a final order should not be made in these terms -

“(1) That the occupation, or attempts to occupy, a certain piece of land, being the remaining extent of Inogo Ranch situate in the district of Que Que, by the respondents personally, or their employees, family, or agents, before finalization of the application for review under High Court case number 503/2009, and any subsequent referral of the matter to the Supreme Court, be and is hereby declared wrongful and unlawful.

(2) That respondents pay costs of suit on attorney and client scale jointly and severally, one paying the other to be absolved.”

While he awaited finalization of the review, and a possible referral of the matter to the Supreme Court on the Constitutional issue he raised, he allegedly had been subjected to such harassment and violence that have left him traumatized and apprehensive that he may die any day.

The perpetrators of the harassment, and acts of violence, were employees of the respondents. The employees of the second and third respondents had taken over one of the buildings that was being used by the applicant's mechanic for accommodation. The first respondent had built a make-shift house for use by his employees. The perpetrators of the alleged acts of violence, and harassment, were being supervised by the third respondent who brought them provisions in the form of food and beer in the first respondent's Toyota pick-up truck. The applicant chronicled the incidents of violence, and harassment that had allegedly taken place since February when the prosecutions started. He claimed that these had intensified during the previous month, and not a day went by without being subjected to an act of harassment or violence.

It was his firm belief that those acts of violence were meant to put him under sufficient pressure to force him off the farm. In their endeavour to put him under pressure to move out of the farm, the respondents men had carried out such acts of violence that had left him traumatized and apprehensive that he might be killed any day. The alleged acts of violence were these...,.

The applicant averred that he had been subjected to so much harassment and humiliation to the extent that he felt compelled to seek redress from this court. He went on to contend that the respondents should only take occupation of the ranch if he is convicted of the charges he is facing, and an eviction order has been issued against him. The respondents should wait for the courts to make a determination on whether or not he has a valid defence to the eviction. In the event that his defence failed, the respondents can always take occupation then - and only then.

They should not take the law into their own hands

The respondents strenuously denied the allegations of violence and harassment against the applicant and his family.

There were counter-accusations of violence being perpetrated by the applicant. They further alleged that the applicant was guilty of making numerous reports against them to the police at Kwekwe. They filed of record a letter dated 10 June 2009 addressed to Officer Commanding Kwekwe District by Officer-in-Charge Zimbabwe Republic Police, Kwekwe Rural. The Officer-in-Charge chronicled the numerous complaints officially made to the station by the applicant. In paragraph 1 of the letter, it was stated thus -

“From the time Igogo Farm was acquired by the government in 2001, the complainant, Mr. H. Grove, and the new beneficiaries, that is Martin Makonese and the Murwisa family, have been making allegations and counter-allegations, all aimed at getting police sympathy as to who should lawfully occupy the gazetted farm.

Despite all efforts made to finalize the case at the court, H.G.Grove has stalled all these efforts preferring the matter to be heard at the High Court...,.”

The Officer-in-Charge listed at least nine cases which, in his view, did not merit police response as they appeared to the police to be of a civil nature. He also listed other eight cases the police felt warranted their attention, and were being investigated. In conclusion, the Officer-in Charge had this to say -

“From the incidents reported to the police by Mr.H.Grove, and referred to above, some of the reports have lacked evidence whilst some have been established to be false. The police should not be used to settle civil disputes which are pending in the High Court and other courts. The police should maintain law and order without being sucked into land disputes.”

The respondents averred that it was the applicant who was committing acts of violence, and cited a case in which the applicant's son shot and injured someone on the legs at Igogo Ranch. The accused is being charged with attempted murder.

Quite clearly, all is far from being well at the farm.

While there may be substance in some of the allegations that the parties are making against each other, others have been found by the police to be baseless and false. Ex facie, serious crimes appear to have been committed by either side.

HB116-09 : EDWARD MANGENA and MALAKI MPOFU vs NINNO FILANNINO and FIVE OTHERS
Ruled By: NDOU J

The applicants instituted a court application seeking a remedy in the following terms - “It is ordered that”-1.The eviction of the applicants by the respondents, jointly and severally, from their land, namely, plot 32 and 33 Essexvale, be and is hereby declared to be unlawful. 2. The 1st respondent's occupation of the applicant's pieces of land without a ...

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

Despite having been lawfully evicted by an order of the Magistrates Court, the applicant retook possession of the property without having first set aside the Order evicting her. These courts take a serious view of such conduct as the integrity of the judicial system depends on the obedience of all court orders by all litigants.

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

This is an application for a spoliation order, and an interdict, in which the second applicant claims that he and his family was summarily evicted from the remainder of Manda Estate A by a mob that was acting at the behest of the second respondent. Subsequent to hearing the application, I granted the application for spoliation ...

Subsequent to hearing the application, I granted the application for spoliation only and indicated that my reasons would be furnished later. These are they.

The gist of the facts are that the second respondent was allocated the remainder of Manda Estate A measuring 724 ha. The first applicant used to own Manda Estate, in the district of Makoni, measuring 2,999,9 ha. After the land was acquired by the Government for resettlement purposes, the applicants remained in occupation of the remainder of Manda Estate A. The applicants are facing prosecution under the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. At the close of the State case, the applicants applied for discharge, and a ruling is expected to handed down on 15 January 2010.

In the founding affidavit deposed to by the second applicant, t is claimed that he and his family were in possession of the residence at the farm when on 24 December 2009 a mob descended upon them and ordered them to vacate. They were threatened with assault and other action if they did not comply. There is considerable property on the farm, including livestock. The applicants entered into contract farming with some resettled farmers. They have also been denied access to that land, despite that it does not constitute part of the land that was allocated to the second respondent.

The precursor to the events of 24 December was a visit to the farm on 19 December.

Three persons introduced themselves as representatives of the second respondent. One of them, who introduced himself as Malisa, or Mliswa, claimed that they had instructions to take over the farm immediately. It was also stated that the beneficiary was tired of waiting for the applicant's eviction and was also not interested in the outcome of the pending criminal proceedings. The second applicant contacted the police in order for them to intervene. A mob then sporadically laid siege on the farm. They are alleged to have been using a Mazda T35 truck, and two tractors, belonging to the second respondent. Farm workers were threatened in the process.

On 20 December, the police visited the farm and managed to calm the situation. However, after the police officers left, the mob resumed their hostile conduct. On the following day, the second applicant visited Rusape Police Station. After some discussions with police officers, he was told that they would not involve themselves as this was a political matter.

Matters finally came to a head on 24 December when the second applicant and his family were forced to move out of the premises.

Counsel for the applicants also submitted that for a spoliation order to be granted, one has to make a prima facie case.

He cited Amler's Precedents of Pleadings (Third Edition).

He stressed that the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] did not oust the law on spoliation in as far as the requirement for due process is concerned. Accordingly, vacant possession can only be acquired through a prescribed process. Consequently, the legality of the applicants' occupation of the land is irrelevant.

The first respondent did not make any submissions on the merits of the application. Counsel for the first respondent indicated that they would abide by the decision of the court.

Counsel for the second respondent further submitted that the applicants are required to prove two elements -

(a) Quiet and undisturbed possession; and

(b) Unlawful dispossession or absence of consent to the dispossession.

In an application for a spoliation order, an applicant has to establish the following requirements -

(a) That he or she was in peaceful and undisturbed possession of the property; and

(b) That he or she was forcibly, or wrongfully, deprived of such possession without their consent.

In this respect, see the cases of Diana Farm (Pvt) Ltd v Madondo & Another 1998 (2) ZLR 410 (HC) and Botha & Another v Barrett 1996 (2) ZLR 73 (SC).

The causa of the applicant's possession is immaterial, and it is also irrelevant that the defendant has a stronger right of possession. This is because it is actual possession, and not the right to possession, that is protected.

I am mindful that in the case of Top Crop (1976) (Pvt) Ltd and Malcom William Clark v Minister of Lands Land Reform and Resettlement and Yvonne Samukeliso Gumede HH74-09, BHUNU J, in dealing with a similar matter of spoliation, came to a different decision and dismissed an application for a spoliation order where, from the facts of the case, the second respondent had moved onto land occupied by the applicants on the strength of an offer letter.

However, if it is accepted that one cannot take the law into their own hands in order to enforce a right, the courts still have to apply the law on spoliation notwithstanding the provisions of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] that prohibit the occupation of Gazetted land without lawful authority. It would be difficult to divorce due process from the requirements that an illegal occupier of Gazetted land has first to be prosecuted before being ordered to vacate the land by a competent court.

Accordingly, the application is granted in terms of the draft order as amended.

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

Counsel for the applicants submitted that there is a prescribed procedure by which an occupier of land is to be evicted. He pointed out to provisions of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. He thus submitted that what has happened is that whilst that process is in motion, it has been pre-empted ...

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

In Amler's Precedents of Pleadings, the authors go on to state that because the merits of the plaintiff's possession are not justiciable in such proceedings, there are no real defences which do not amount to a denial of the plaintiff's allegations.

HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET
Ruled By: PATEL J

It follows that, in my view, the first respondent has minimal prospects of success on appeal against the order in case no. HC3989/09. I this regard, I am cognisant of the view expressed by CHIDYAUSIKU CJ in Chikafu v Dodhill (Pvt) Ltd Others SC28-09..., to the effect that because of the divergence of opinion ...

HH22-10 : FORRESTER ESTATE (PVT) LIMITED vs EDGAR CHIDAVAENZI
Ruled By: MAKONI J

The applicant filed an application for a spoliation order. The basis of the application is that on 9 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 ...

The applicant filed an application for a spoliation order.

The basis of the application is that on 9 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 the 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 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 Adekide Municipality 1977 (1) SA 230E..., which was quoted by ADAM J in Davis v Davis 1990 (2) ZLR 136 (H)....,. 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 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

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.

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

This is an application for a spoliation order pursuant to the applicants' conviction for contravening the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Having been convicted and sentenced on the 26th of January 2010, they were also ordered to vacate the land not later than 5:00pm on the 27th of January 2010. The basis of ...

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

There is no dispute that the applicants have been in possession of Disi Farm, and, in particular the barns, equipment, and structures, at Plot 7. When the entire farm was acquired by the acquiring authority the applicants were left in situ and they have remained on the premises throughout. The barns, storerooms, and curing facilities ...

Counsel for the second respondent was correct to state that an applicant to an order for spoliation must prove that he was in peaceful and undisturbed possession of the things dispossessed. It was his contention that the applicants were not in peaceful and undisturbed possession. This contention is not supported by the facts on the papers.

The background to this application, in fact, goes back to 18 August 2008 when the first order for a mandament van spolie was granted against the first respondent. That particular order did not refer to the barns but merely sought to restore possession to the applicant of the portions of the farm not allocated to the first respondent. The second order, granted on 16 December 2008, with the consent of the first and second respondent, was to the following effect –

“BY CONSENT IT IS ORDERED

1. The first respondent and all those claiming occupation through him be and are hereby ordered to restore full possession and use of tobacco barns on Plot 7 to the applicants forthwith.

2. The first respondent is interdicted from barring access to the applicants' employees to the tobacco barn on Plot 7.

3. The first respondent is interdicted from preventing the applicants and their employees from carrying out their duties in curing the applicants' tobacco.

4. The first respondent is interdicted from threatening the applicants' employees.

5. This Order will be effective up to 15 April 2009.”

The parties do not appear to have anticipated the recurrence of problems between them subsequent to 15 April 2009. It may well be that the applicants anticipated that by then a lease would have been offered to them for the barns – it has not.

The second respondent should..., have ensured that the first respondent got vacant possession by evicting the applicants from the disputed barns and sheds. This was not done, leaving the applicants in possession of the same.

The contention by the second respondent is to the effect that the farm was acquired by the Government and, as a result, all infrastructure on the land belongs to the State.

In the final analysis, the protection of possession is part and parcel of the protection of the peace in a community which could not be maintained if every person who asserts that he has a real right to a particular thing which is in another person's possession would be entitled to resort to self-help (per SILBERBERG; The Law of Property 2ed...,.). Thus, the mandament van spolie is aimed at preserving peace and order in a community and to discourage self-help. Consequently, the question of ownership or the lawfulness of the possessor is not an issue for consideration by the court as long as the applicant can show that he was in peaceful and undisturbed possession and that he was dispossessed unlawfully, whether through violence, stealth or fraud. The aim is, therefore, to achieve a restoration of the status quo ante. In Chisveto v Minister of Local Government & Town Planning 1984 (1) ZLR 250..., REYNOLDS J stated thus –

“Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party. Thus, it is my view that the lawfulness of the applicant's possession of the property in question does not fall for consideration at all. In fact, the classic generalization is sometimes made in respect of spoliation actions that even a robber or thief is entitled to be restored to possession of the stolen property.”

In casu, the second respondent has argued that the first respondent is the holder of an offer letter in respect of Plot 7, and that the applicants' did not oppose the occupation of Plot 7 by the first respondent. It is argued that the dispute arose when the applicants sought to continue to use the facilities on the first respondent's portion; the tobacco barns, grading sheds, workshop and office. The second respondent has contended, further, that the applicants were, through an Order of this court, allowed to use the tobacco barns up to 15 April 2009 and that they did not approach the court for an extension of the continued use.

The second respondent is overlooking the fact that, even after the first respondent moved onto Plot 7, the applicants remained in possession of the infrastructure that is central to this dispute and that in order to give effect to the offer letter the second respondent had to take legal steps to ensure that the possession by the applicants of the infrastructure was terminated properly and that, thereafter, the first respondent could assume possession. In casu, the possession by the applicants of the disputed infrastructure is not due to an Order of court. The court merely restored possession to them after an act of spoliation. The expiry of the period agreed to by the parties did not have any material consequence as to the possession. It did not affect the legal position of their possession which remains the same unless, and until, the acquiring authority takes some positive action for its determination. This was not done, and the courts have held, on numerous occasions, that an applicant will be given possession of the property where it is shown that he was despoiled.

“It is a fundamental principle that no man is allowed to take the law into his own hands; no-one is permitted to dispossess another forcefully or wrongfully and against his consent, of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute. It is not necessary to refer to any authority upon a principle so clear.” per INNES J in Bonino v de Lange 1906 TS 120...,.

It is therefore ordered as follows –

The Provisional Order granted by this court on 4 May is hereby confirmed and an Order is issued in the following terms –

1. The first respondent and all those claiming occupation through him be and are hereby ordered to forthwith restore to the applicants and their employees full possession, use, and access to the tobacco barns, grading sheds, storage sheds, workshop, office and irrigation pump station on Plot 7 and all farming implements owned by the applicants and located thereon so as to restore the status quo ante prevailing on Plot 7 as at 15 April 2009.

2. The first respondent and all those claiming occupation through him be and are hereby ordered to permit the applicants and their employees to grade their tobacco and remove it for sale thereafter.

3. The first respondent be and is hereby ordered to desist from threatening any of the applicants' workers or management in carrying out their normal duties.

4. The first respondent shall pay the costs of this application.

HH122-10 : GIBSON CHAMBOKO and MR CHAMBOKO SNR and CHANGE TOMAS KWODZI vs PATRIC JOHN STOOKS and P J STOOKS (PRIVATE) LIMITED
Ruled By: MAKONI J

The requirements for spoliation are well-settled in our law. These are - (i) That the applicant was in peaceful and undisturbed possession of the property; and (ii) That the respondent deprived him of the possession forcibly or wrongfully against his consent. See Botha Anor v Barrett 1996 (2) ZLR 73 (S)...,; Best of Zimbabwe Lodges (Pvt) Ltd ...

SC17-13 : EVANS TAPFUMANEYI MUNYATI vs GODFREY MUGAYI
Ruled By: CHIDYAUSIKU CJ, GARWE JA and OMERJEE AJA

This is an appeal against the judgment of the High Court, sitting at Harare, in which the appellant was ordered to restore possession of a Toyota Hilux motor vehicle registration number AAP 2222 to the respondent within 48 hours of service of the order and to pay costs of suit on an attorney and ...

The facts of this matter are as follows:

In May 2010, the parties entered into an agreement in terms of which the appellant agreed to sell, and the respondent agreed to buy, a Toyota Hilux motor vehicle registration number AAP 2222. The agreed purchase price was USD$4,000= payable by an initial deposit of $2,000= and the balance in instalments. It is common cause that the appellant surrendered the vehicle and the vehicle registration book to the respondent after payment of the first instalment. Although it is not in dispute that at the time when the vehicle was surrendered to the appellant there was still a balance outstanding, the exact amount thereof is in dispute. On 26 October 2010, the appellant regained possession of the vehicle at the Jameson Hotel in Harare, prompting the respondent to apply to the High Court for an order of spoliation on 13 December 2010.

In his founding affidavit, the appellant averred that he had been unlawfully dispossessed of the motor vehicle by the appellant, who had been assisted in so doing by his brother, and their agent, one Makombe of Stoneriver Motors. At the time that the vehicle was taken away he had paid the sum of US$3,300=and had had undisturbed possession of the vehicle for five months. He had not voluntarily surrendered the vehicle to the appellant.

On the other hand, the appellant, in his opposing affidavit, stated that the surrender of the vehicle by the respondent to him on 26 October 2010 was done voluntarily and therefore there was no question of him having taken the law into his own hands. The respondent had only paid the sum of US$2,600=, and, despite a further extension, failed to pay the purchase price in full. He, accordingly, demanded the return of the vehicle and its registration book. The respondent did not comply. His brother, one Garikai, had then encountered the respondent, by chance, at the Jameson Hotel on 26 October 2010. Garikai then demanded the balance outstanding of $1,400= and the registration book from the respondent. It was then that the respondent surrendered the motor vehicle to Garikai and promised either to go and retrieve the registration book or bring the sum of $1,400= and settle the balance. The vehicle in the meantime was then parked at a neutral venue at Stoneriver Motors. The appellant denied taking the law into his own hands. He claimed that the surrender of the motor vehicle was with the consent of the respondent.

The court a quo granted the order of spoliation and costs on the higher scale. It is against that order that the appellant now appeals to this Court.

The issue for determination by this Court is a simple one. That issue is whether the court a quo erred or misdirected itself, as alleged, or at all, in finding that there was sufficient evidence on the papers before it that the appellant had forcibly caused the respondent to surrender the motor vehicle to him against his will.

The rationale for an order of spoliation has been set out in various decisions of the courts in this jurisdiction. In Chisveto v Minister of Local and Town Planning 1984 (1) ZLR 248…, REYHOLDS J quoted with approval the remarks of INNES CJ in Nino Bonins v De Lange 1906 TS120…, that:

“It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.”

Put simply, it matters not who actually owned the property, or what the dispute between the parties was, as long as the respondent had possession in fact, which is not disputed, and was wrongfully dispossessed.

In Oglodzinski v Oglodzinski 1976 (4) SA 273…, LEON J remarked:-

"In a spoliation application, the Court does not decide what - apart from possession - the rights of the parties to the spoliated property were before the act of spoliation but merely orders that the status quo be restored. (Nienaber v Stuckey 1946 A.D. 1049 at pp.1053, 1054). The onus lies upon the applicant to prove, on a balance of probabilities, that:

(i) He was in peaceful and undisturbed possession of the property in question at the time of the alleged deprivation, and

(ii) He was unlawfully deprived of such possession.”

In the present case, the evidence reveals that the respondent was in factual possession of the motor vehicle at the time that he surrendered it to the appellant. There can be no doubt, therefore, that he was in peaceful and undisturbed possession at the time the vehicle was taken from him.

The findings of the court a quo in this regard are unassailable.

The real issue, it seems to me, relates to the second requirement, that is, whether the respondent was wrongfully dispossessed of the motor vehicle.

It is common cause that the respondent bought the vehicle in question on credit and that at the time it was taken from him he had paid a substantial portion of the purchase price. The meeting at the Jameson Hotel had not been arranged but was fortuitous.

In coming to a decision, the court a quo took a robust approach of the facts, and, considering the probabilities, concluded that it was inconceivable that the respondent would have parted with possession of the motor vehicle willingly in the manner he did following a chance meeting. I am inclined to agree with the conclusion by the court a quo, that, given the circumstances, it is unlikely that the respondent would have willingly parted with the motor vehicle. That conclusion appears to me to accord with common sense.

No basis has been shown upon which this finding can be impugned….,.

In the result, it is ordered as follows:

1. The appeal is dismissed with costs.

View Appeal
SC43-14 : STREAMSLEIGH INVESTMENTS (PRIVATE) LIMITED vs AUTOBAND INVESTMENTS (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

This is an appeal against a judgment of the High Court dismissing an application, firstly, for a declaration of rights in respect of an immovable property known as No.15 Lanark Rd, Avondale, Harare, and, secondly, for an interdict against the eviction of the appellant from the said premises….,. The facts surrounding this dispute are convoluted and ...

The facts surrounding this dispute are convoluted and I will endeavour to simplify them. At the centre of the dispute is control of the Trauma Centre. Although the parties involved in the dispute refer to the ownership of the same; in this matter, the court is seized only with the question of which of the parties is legally entitled to the physical occupation and possession of the same.

The “Trauma Centre” is a state of the art hospital which is situated at 15 Lanark Road in Harare. It is common cause that for a considerable period, the hospital leased the premises from the administrators of the estate of the late Rosa Alhadeff. On 30 March 2010, the ownership of the land on which the hospital is situate was transferred to Streamsleigh Investments (Pvt) Ltd, the appellant herein.

The appellant is a private company which is duly registered in Zimbabwe in accordance with the laws of the country. Its shareholding is at the core of the dispute between the parties, which dispute is, however, not the issue presently for determination before this court. Its Directors, upon registration, were Wessel Roets and Zarina Dudhia. The latter was also the Principal Officer of the company.

The respondent is a private company duly registered in accordance with the laws of Zimbabwe.

On 30 January 2008, the respondent concluded a Management Agreement with CA Meifco Limited, which is a company registered in accordance with the laws of Mauritius, for the provision of certain specified services by CA Meifco Limited to the respondent at what is colloquially referred to as the “Trauma Centre.” The agreement was to run for a period of five years from the effective date.

A management team comprising Dr Vivek Solanki, Marco Cerunschi and Wessels Roets was to be responsible for the overall management of the Trauma Centre. CA Meifco Limited was responsible for the financial management of the hospital including the procurement of medication. On an undisclosed date, CA Meifco Limited changed its name to VIP Healthcare Solutions. Although it was not specifically mentioned in the agreement, CA Meifco Limited was a wholly owned subsidiary of African Medical Investments Plc, (“AMI Plc”).

On 26 April 2010, African Medical Investments Plc executed a Deed of Trust in terms of which The Streamsleigh Trust was created. Jeremy Darroll Stewart Sanford, Anis Abdulkarim Omar and Gary Maitland Crosland were named as Trustees. On 28 April 2010, Streamsleigh Investments (Private) Limited issued a share certificate in terms of which The Streamsleigh Trust was recorded as the holder of 100 fully paid shares of USD0.001 each. On the same date, Jeremy Darroll Stewart Sanford was appointed as one of the Directors of the company in addition to Zarina Dudhia and Wessel Roets.

On 28 September 2011, the respondent filed an application in the Magistrates Court Harare. The deponent to the affidavit was Dr Vivek Solanki, (“Solanki”) who described himself as the founder and Director of the respondent company. In the application, African Medical Investments Plc, was cited as the sole respondent.

In the founding affidavit, Dr Vivek Solanki alleged that he had incorporated Autoband Investments (Pvt) Ltd, (the respondent in this appeal) and that, pursuant thereto he had been leasing the premises at No.15 Lanark Road for about fifteen (15) years. He averred, further, that he had been approached by officers of African Medical Investments Plc with a proposal that Autoband Investments (Pvt) Ltd enter into a joint venture agreement with the former and the negotiations had culminated in the parties executing a Management Agreement in terms of which African Medical Investments Plc was to purchase Autoband Investments (Pvt) Ltd. He averred that the agreement had fallen through and subsequent to that the employees of African Medical Investments Plc had unlawfully evicted the employees of Autoband Investments (Pvt) Ltd from No.15 Lanark Rd during his absence from the country. In the affidavit, Dr Vivek Solanki alleged that the employees of Autoband Investments (Pvt) Ltd had been intimidated by people who posed as police officers, and who later turned out to be bogus. It was further alleged in the affidavit that African Medical Investments Plc had taken the law into its hands and evicted Autoband Investments (Pvt) Ltd and its employees illegally from the premises that it had been leasing for over fifteen (15) years.The draft order attached to the application sought the eviction of anyone seeking occupation through African Medical Investments Plc.

The application was opposed by the appellant.

The deponent to the opposing affidavit, one Peter J Annesley, described himself as “the Chief Operating Officer of Streamsleigh Investments (Private) Limited”, a duly registered company which trades under the name of AMI Hospital Harare.

It seems to have escaped the notice of Peter J Annesley and his legal practitioners that the appellant had not been cited as a party to the application and that it could not challenge the application unless it was joined as a party.

In his response to the opposing affidavit, Dr Vivek Solanki claimed that Streamsleigh Investments (Pvt) Ltd was a company in which he had an interest and he put into issue the status of Peter J Annesley in the said company.

Presented with these facts, the learned magistrate who heard the application found that the appellant's occupation of the premises was questionable in the absence of proof to show that the respondent had been removed from the same lawfully. The magistrate, as a consequence, found that the respondent had been dispossessed unlawfully as there was no court order prior to its eviction. The magistrate then ruled that the respondent was entitled to an order for restoration and consequent thereto issued the following order:

“The respondent, its officials and anyone claiming through them and grant (sic) restored occupation to the Applicant 7 days upon delivery of judgment.”

An appeal was noted against the judgment of the magistrate, and, in response, the respondent sought and obtained an order for leave to execute pending appeal. Consequent thereto, Autoband Investments (Pvt) Ltd obtained a writ of eviction.

Being the registered owner of the premises in question, the appellant considered that its position had been compromised by the order. It had to protect its occupation and as a result it approached the High Court on a certificate of urgency in which it sought a Provisional Order in the following terms:

“TERMS OF INTERIM RELIEF SOUGHT

IT IS ORDERED THAT:

1. In the absence of any direct order against the Applicant for its eviction from Stand No 2924 Salisbury Township of Salisbury Township Lands also known as No.15 Lanark Road, Belgravia, Harare, the Respondent be and is hereby interdicted from utilizing the eviction order in Case No MC16435/11 to evict the Applicant from the premises set out hereabove.

2. The Respondent be and is hereby interdicted from utilizing any relief obtained in Case Nos. HC619/11 and 2125/11 against the Applicant.

3. The Respondent be and is hereby ordered to pay the costs of this application.

TERMS OF FINAL ORDER SOUGHT

IT IS DECLARED THAT:

1. The eviction order granted in Case MC16435/11 between the Respondent and African Medical Investments Plc is of no force, effect or application as against Applicant and its occupation of the premises known as Stand No 2924 Salisbury Township of Salisbury Township Lands also known as No.15 Lanark Road, Belgravia, Harare.

2. Any relief granted in Case Nos HC619/11 and 2125/11 be and are hereby declared to be of no force, effect or application as against Applicant in respect of its occupation of their (sic) premises known as Stand No 2924 Salisbury Township of Salisbury Township Lands also known as No.15 Lanark Road, Belgravia Harare.

3. That the Respondent pay the costs of this application.”

The respondent opposed the application, and, in turn, the appellant filed an answering affidavit.

The learned judge before whom the urgent chamber application was placed, understandably, faced with the apparent disputes was unable to issue an order in terms of the interim relief being sought and instead issued a provisional order by consent which preserved the rights of the parties pending the hearing and determination of the application for relief in terms of the final order sought. He also gave directions for the filing of further affidavits by the parties as well as heads of argument. The matter was subsequently set down before a different judge who, after hearing counsel, dismissed the application and discharged the provisional order. Following upon the discharge, the appellant was ordered to pay punitive costs.

It is against that judgment that the appellant has noted an appeal to this Court.

It was contended, on behalf of the appellant, that the critical issue before the High Court was whether or not it was African Medical Investments Plc or Streamsleigh (Pvt) Ltd which was in occupation of the premises at the time that the eviction order was granted.

I agree that this was the critical issue for resolution by the court a quo in the determination of the application for the declaratur and consequential relief sought by the appellant.

The learned judge in the High Court was persuaded to accept that the finding by the magistrate as to who was in possession of No.15 Lanark Rd was correct, and that consequent thereto, the respondent had been illegally dispossessed of its occupation of the same. This is what the learned judge had to say at pp 3 to 4 of the cyclostyled judgment:

“I am extremely concerned with the approach being advocated by the applicant in this case. It wants this court to grant a declaratory order to subvert a process that started in the lower court in which it actively participated and lost. I see nothing but a stout (sic) effort to indulge in forum shopping and the High Court must not be used to subvert court process emanating from the lower court for no good cause. I agree with the forceful submissions made by Adv Uriri that in these circumstances a declaratory order would not be competent.

Before concluding this matter, I wish to observe that the applicant has placed so much emphasis on the ownership of Stand 2924 Salisbury Township of Salisbury Township Lands (No.15 Lanark Road, Belgravia, Harare). The application for eviction had nothing to do with the ownership of the property but was restricted to possessory rights of the applicant in the lower court. Again, this issue was dealt by the lower court in its judgement referred to above. The lower court made a specific finding that the now respondent had been unlawfully dispossessed of the property. The applicant exercised its right of appeal against the decision of the lower court and certainly it was not competent for the applicant to apply for a declaratory order to short circuit the appeal process.”

The learned judge in the court a quo concluded that the magistrate was correct in finding that the respondent had been unlawfully dispossessed by the appellant. It is clear that the judge based his decision on a number of documents placed before him by the parties.

A perusal of the documents reveals the following.

On 13 December 2010, the appellant wrote to the City of Harare requesting that an inspection be carried out at No.15 Lanark Rd. The inspection was carried out on 15 December 2010 as confirmed by a letter written to the appellant by that department on 20 December 2010. Ultimately, the Stand was registered as a hospital. On 15 April 2011, the Civil Aviation Authority of Zimbabwe allocated the appellant an account for the use of facilities at its premises for navigation, landing, parking and other apron fees. On 1 March 2011, the Medicine Control Authority of Zimbabwe issued a hospital pharmacy licence to the appellant. Lastly, on 27 January 2012 the City of Harare issued a Municipal Licence to the appellant for a coffee shop.

Indeed, as stated by the learned judge in the court a quo, there are documents in the form of statements of accounts apparently generated by African Medical Investments t/a Streamsleigh Investments Plc addressed to a number of individuals who appear to be patients or recipients of services. In my view, the documents in question do not confirm that the occupant of the premises was African Medical Investments Plc. They confirm instead, that a subsidiary of African Medical Investments Plc was running the hospital, as indicated by the statutory licences and permissions granted in the name of the appellant.

The respondent accepts that in the proceedings before the magistrate it bore the onus to prove that an act of spoliation was committed by the appellant. The affidavit in relation to the alleged act of spoliation was adduced by Dr Vivek Solanki. He stated that the act of spoliation had happened in his absence from the country. This is how the alleged act is described:

“I was however surprised that the respondent's employees unlawfully and illegally evicted applicant's employees whilst I was out of the country. The respondent used unorthodox means to evict applicant's employees including robbery, theft, corruption and fraud as a result the respondent took occupation, such occupation was and remains unlawful as they did not obtain a court order neither did they agree with me or my employees.”

Where an act of spoliation has been alleged, it is trite that the act of spoliation has to be proved.

The respondent, did not state when such act occurred, how it occurred or by whom it was perpetrated. In his founding affidavit, Dr Vivek Solanki refers in general terms to 'robbery, theft, corruption and fraud,' as constituting the act of spoliation. It cannot be gainsaid that robbery, theft, corruption and fraud are different and distinct species of criminal offences. Each of the offences referred to by the respondent as having been perpetrated has its own separate essential elements constituting the specific offence. The respondent does not, in the affidavit of Dr Vivek Solanki, give details on each of the alleged offences nor does he state how each of these acts which are alleged to constitute spoliation were effected, when they occurred or by whom they were perpetrated.

In short, the affidavit is devoid of any specifics on the act of spoliation in terms of which the order of eviction was premised. It is lacking in detail and substance as to how the respondent was illegally dispossessed of occupation.

In my view, the record does not reflect that the respondent has discharged the onus it bears. In Nino Bonino v de Lange 1906 TS 120, INNES CJ stated the following in describing acts of spoliation:

“The best definition I have been able to find is one given by LEYSER, who states that spoliation is any illicit deprivation of another of the right to possession which he has, whether in regard to movable or immovable property or even in regard to a legal right.

Two factors are requisite to found a claim for an order for restitution on an allegation of spoliation. The first is that the applicant was in possession, and, the second, that he has been wrongfully deprived of that possession against his wish. It has been laid down that there must be clear proof of possession and of the illicit deprivation before the order is granted. (See Rieseberg v Rieseberg 1926 WLD 59 at 65). It must be shown that the applicant had free and undisturbed possession (Hall v Pitsoane 1911 TPD 853). When it is shown that there was such possession, which is possession in the physical fact and not in the juridical sense, and there has been such deprivation, the applicant has a right to be restored in possession ante omnia. On a claim for such restoration it is not a valid defence to set up a claim on the merits.”

Broken down in simple terms, an applicant for an order for a mandament van spolie must establish the following:

“(1) That he was in peaceful and undisturbed possession of the property;

(2) That he was unlawfully deprived of such possession.”

See also Davis v Davis 1990 (2) ZLR 136 (H)…,.

It was necessary, in my view, for the respondent to have shown that it was in occupation of the premises in question and that further to that it was, in fact, the appellant, as opposed to African Medical Investments Plc, that caused its unlawful dispossession from the premises. It did not establish that it was in peaceful and undisturbed possession and that it was disposed by the appellant. Consequently, there is no substance to the allegation by the respondent that it had been unlawfully dispossessed of occupation of the hospital premises by the African Medical Investments Plc against which it took no action.

I therefore conclude that the learned judge misdirected himself in accepting the finding by the magistrate that the respondent had been unlawfully removed from the premises by African Medical Investments Plc.

In my view, the resolution of which entity was in lawful possession of the premises is critical in the determination as to whether or not the learned judge was correct in dismissing the application, as the finding would put paid to the allegation by the respondent that African Medical Investments Plc caused its unlawful ejectment from the premises….,.

SC29-15 : BASE MINERALS ZIMBABWE (PRIVATE) LIMITED and PETER VALENTINE and MUYENGWA MOTSI vs MABWE MINERALS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GWAUNZA JA and BERE AJA

At the end of the hearing in this matter, we dismissed the appeal and indicated that full reasons for the decision would follow. These are the reasons. At the centre of this drawn out, highly contested and multifaceted dispute are certain mining claims cumulatively styled “Dodge” Mine. The rights of various parties to the mining claims, ...

At the end of the hearing in this matter, we dismissed the appeal and indicated that full reasons for the decision would follow. These are the reasons.

At the centre of this drawn out, highly contested and multifaceted dispute are certain mining claims cumulatively styled “Dodge” Mine.

The rights of various parties to the mining claims, or part thereof, have either been determined or are still pending in the High Court. It is pertinent to note that the claims brought before the High Court over the years, and dealing with different facets of the main dispute have not all been between the same parties as those in casu. Details of these claims are not relevant to a determination of this matter and will not further be considered.

What is relevant to this dispute is set out in the judgment of the High Court and is reproduced here for convenience.

Against the background of a dispute of rights in the same mine, between the second appellant, as a 50 per cent shareholder in Chiroswa Minerals (Private) Limited and a certain John Richard Grooves ('Grooves') as shareholder of the other 50 per cent, the latter purported to sell the entire shareholding of Dodge Mine (Chiroswa Syndicate) to the respondent in casu. This was on 31 July 2012. The disputed mining claims had by this time assumed the name Chiroswa Syndicate. The second appellant took the view that he had been defrauded of his 50 per cent shareholding, and challenged the sale in HC4112/13. The case was still pending before that court at the time the proceedings a quo were concluded. The learned judge in casu, correctly, did not delve into the merits or demerits of this dispute of ownership.

In addition to this dispute, John Richard Grooves was embroiled in earlier disputes with two other entities with whom he had previously entered into tribute agreements in relation to the same mining claims. He was, at that time, the sole shareholder in Chiroswa Minerals (Private) Limited. The latter dispute ended with an order of the High Court in HH261-11 to the effect, among other things, that the Tribute Agreement between John Richard Grooves and the second appellant be registered with the Mining Commissioner. The registration was eventually effected on 13 February 2014. This was after a number of other claims, counter claims, and an aborted appeal to this court, had been filed and/or determined.

It is evident from the above that the sale to the respondent in casu of the 100 per cent shareholding in Chiroswa Syndicate by John Richard Grooves took place before the registration, by the Mining Commissioner, of the Tribute Agreement relating to the same mines. The respondent, who had taken occupation of the disputed claims pursuant to the purchase of the 100 per cent shareholding from John Richard Grooves was conducting operations thereon all the time that the second appellant, John Richard Grooves and the Mining Commissioner were pursuing and defending the various suits referred to above. The respondent has also been carrying on operations at the disputed mine while case HC4112/13, which is challenging the sale of the same claims to it by John Richard Grooves, is still pending in the court.

This then was the status quo at the time the appellants finally secured registration of the Tribute Agreement between John Richard Grooves and the second appellant, Peter Valentine. The court a quo took up the narration of events from there and stated as follows:

“Now armed with the above registered order, the respondents (appellants in casu) entered Dodge Mines where the applicant was operating from. They entered without a writ of execution nor were they accompanied by a Deputy Sheriff…,. The respondents were not on the mine premises. There was also a peace order that interdicted second respondent, Peter Valentine, from entering or interfering with mining operations at Dodge Mines issued at Bindura Magistrates Court on 6 July 2012 which lapsed on 6 July 2013. It is further not in dispute that on 18 February 2014, 3^rd respondent, Muyengwa Motsi entered Dodge Mine premises as a visitor and ended up taking some photographs. Then, on 20 February 2014, the first respondent, Base Minerals (Private) Limited and the second respondent, Peter Valentine, entered the mine premises in question with a gang of armed men. On that day, applicant rushed to this Honourable Court and issued summons under case HC1414/14 challenging the validity of the registration of the Tribute Agreement in question. On 21 February 2014, the respondents then wrote a letter to applicants giving notice of their intention to take occupation of Dodge Mines with immediate effect and to commence operations under the registered Tribute Agreement. The letter was written when the respondents had already effected entry into the mine premises.”

Upon receipt of the letter of demand, the respondent in casu immediately filed with the High Court, an application for spoliation and interdict.

The respondent claimed, on the basis of what the law lays down as the essential requisites for a spoliation order (see Botha and Another v Barrett 1996 (2) ZLR 73 (S) where…, the requirements of a spoliation order are stated) that;

(i) They were in peaceful and undisturbed occupation of the premises in question; and

(ii) The appellants despoiled them without its (respondent's) consent and without following court procedures or first obtaining an order of ejection served through the Sheriff or his lawful deputy.

The respondent contended, further, that the appellant's forced entry onto the disputed premises was unlawful as clearly admitted by the third appellant in his opposing affidavit.

The respondent also sought an order ejecting the appellants and interdicting them from entering the disputed premises and interfering with their mining operations until the ownership dispute pending under case HH1414/14 has been resolved.

The court a quo granted the spoliation order and interdict, as prayed by the respondent, leading to this appeal by the disgruntled appellants.

The appeal essentially raises one issue for determination, which, in my view, is dispositive of the whole matter; whether the court a quo was correct in finding that the appellant's entry onto the mining claims warranted the granting of mandamus van spolie as well as the interdict.

The following facts are largely not disputed. Firstly, the appellants did effect entry onto the disputed premises without the backing of a court order or “due process.” The deponent to the appellants' opposing affidavit, Muyengwa Motsi, who is the third appellant in casu, admitted the same in his opposing affidavit a quo, when he stated;

“Indeed, I entered the mine premises. I did not need permission from anyone to do so. Applicant has been mining thereat illegally for the past 2 years. I did not use any false pretence. Indeed, our intention has and continues to be to take over the mines and occupy same as can be envisaged (sic) by the numerous court orders granted in our favour which applicant blatantly refuses to recognise (see case no. HC26/11, HC3208/13 and HC1194/13).”

Secondly, the appellants, in addition to this, admitted to the deployment of armed guards by the entrance to the disputed premises. The third appellant stated as follows in his opposing affidavit;

“Ad para 3

…, however, the second respondent is within his rights to place guards at the mine to ensure that all the ore that was mined illegally does not leave the premises…,.”

Given these admissions, which seem to give credence to the respondent's claim that the appellants forcefully entered the disputed mine premises, the Judge a quo, I find, was correct in his observation to the following effect:

“In a nutshell, this is an admission that the respondents have effectively entered the mine. They did so without any permission from anyone…,. In casu, the applicant was dispossessed against his will and without the authority, or order of, this court. In acting as they did, whether as principals or agents, all respondents took the law into their own hands. They are 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. See Ntshwacela v Chairman, Western Cape Regional Services Council 1988 (3) SA 218 (C).”

I respectfully associate myself with and endorse these sentiments.

Having confirmed the court a quo's finding as to the unauthorized, forceful, entry by the appellants onto the disputed premises, what has to be considered next is whether the appellants established a defence acceptable at law, to such conduct.

The respondent addresses this question in its heads of argument, as follows:

“4.14 The only recognised defences to an action of spoliation are;

(i) Denial of the facta propanda;

(ii) Impossibility of restoration;

(iii) Counter-spoliation; and

(iv) Failure to act within a reasonable time.

See Gondo NO vs Gondo & Ors 2001 (1) ZLR 376 & Silberberg and Schoeman (supra) at 288 generally.

4.15 Appellants have not raised these defences, whether in the court a quo or on appeal and thus the appeal must fail.”

There is merit in this contention.

The appellants, as is evident from the papers before the court, did not justify their conduct on the basis of the defences mentioned. Indeed, the appellants' case is to defiantly assert that they did not need anyone's consent to enter the premises and reclaim what they perceived to be their entitlement. The appellants elaborate their stance in this respect by stating, in their heads of argument, that they were “perfectly within their right” to recover the six (6) claims 'summarily without the need for fresh court proceedings.'

It is argued for them as follows;

“It would be manifestly absurd to suggest that the appellants needed to institute fresh proceedings and obtain a writ to implement the right already conferred on them in terms of the Tribute Agreement…,.”

The appellants also express the view that the respondent was not in peaceful and undisturbed possession of the premises because the respondent “was aware of the registration of the Tribute Agreement in terms of the judgment in HH261-11.”

Lastly, it is contended for the appellants that the deprivation of possession in the implementation of the 'provisions of a statute' does not amount to spoliation.

Apart from these contentions coming nowhere near establishing any of the defences recognized by law in spoliation proceedings, I find that the appellants are effectively advocating for an environment where the “take the law into your own hands” adage becomes the norm. It hardly needs mention that this approach offends against the very raison d'etre of the law generally and a mandamus van spolie in particular, that is, the preservation, promotion and enforcement of law and order in and amongst members of the society.

The appellants have not pointed the court to any statutory provision that specifically provides for summary possession of disputed properties in circumstances such as these. Rather, counsel for the appellants cited the following dictum which re-affirms the purpose of the law on spoliation but decidedly contradicts, rather than supports, their case; (see HH261-11);

“The reason being that the purpose of mandamus van spolie is to preserve law and order and to discourage persons from taking the law into their hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party…,.”…,.

The appellants clearly misinterpret the import of this statement, in particular, the highlighted part thereof. The appellants' understanding of these words seems to be that as long as a competent court of law has pronounced on the rights of opponents, all that is required by the winning party is to arm themselves with the order in question and then proceed to personally execute it against the losing party. Any lawyer should know, and surely does not need to be told, that beyond the giving of orders by the court, there is a whole process that follows (in the absence of voluntary compliance thereof) in order for the orders in question to be executed. Hence the need, beyond securing one's legal rights, to petition the court for an appropriate order to facilitate enforcement through the Sheriff, his deputy or any other authorized officer of the court. The appellants in casu clearly sought to short circuit this process and take upon themselves a task that properly falls within the domain of others, that is, authorized law enforcement agents. Such actions not being supportable at law, I find that there is nothing to fault in the reasoning of the court a quo, and its finding, that the appellants had failed to prove a defence to the respondent's application for a mandamus van spolie.

This brings me to a consideration of whether or not an interdict was justified under the circumstances of this case. The learned judge a quo correctly set out the requirements thereof as follows:

(i) Clear or prima facie right though open to some doubt;

(ii) Well-grounded fear of harm if relief is not granted and if applicant can prove such right;

(iii) Balance of convenience must favour granting of relief, and

(iv) No other relief available to the applicant.

See Enhanced Communication Network (Pvt) Ltd v Minister of Information, Posts and Telecommunications 1997 (1) ZLR 342.

Though disputed and still the subject of litigation in the High Court, I am satisfied that the respondent established a clear or prima facie right to possession of the premises in question. Its expressed fear that harm to it may ensue if the relief sought was not granted is, in my view, well grounded. The appellants placed armed guards at the entrance to the premises. The possibility of an explosive, if not fatal, situation could thus not be ruled out. The appellants had been operating on the premises for a not insignificant period of time, and still faced legal challenges in the High Court, to its entitlement to the premises. It is evident that the balance of convenience tilted in favour of its being granted the order in question.

The learned judge was therefore correct in stating as follows;

“If the armed men or guards posted by respondents are allowed to remain on the mine or the gates there is well grounded fear that harm might occur if an interdict is not granted. The applicant is entitled to the reliefs he is seeking. The application will be granted.”

In all respects, therefore, we found the appeal to be devoid of merit, hence our dismissal of it with costs.

HH128-10 : SILVERTON ESTATES (PVT) LTD and MICHAEL CHARLES JAHME vs IGNATIOUS KAMBA and PROSPER SITHOLE and SAMUEL ZUZE and OTHERS
Ruled By: CHIWESHE JP

In this urgent chamber application the applicants seek a spoliation order couched as follows- “It is ordered that:- 1. That applicants', their employees, agents or invitees possession to Lot 8 of Newcastle also known as Silverton Estates in the District of Chipinge be restored. 2. That first to third respondents and all others acting through them provide free and unfettered access ...

In this urgent chamber application the applicants seek a spoliation order couched as follows-

“It is ordered that:-

1. That applicants', their employees, agents or invitees possession to Lot 8 of Newcastle also known as Silverton Estates in the District of Chipinge be restored.

2. That first to third respondents and all others acting through them provide free and unfettered access by applicants, their employees, agents or invitees to Lot 8 of Newcastle.

3. That the Deputy Sherriff, should it become necessary, be and is hereby authorized and empowered to attend to the removal of first to third respondents and all other persons acting through them from Lot 8 of Newcastle in Chipinge District, and, pursuant thereto, the Deputy Sherriff may enlist the assistance of any member of the Zimbabwe Republic Police to attend to such removal; the police being directed to provide such assistance so that the provisions of this order be implemented in full.

Alternatively:

4. That the applicants, their agents, employees or invitees be and are hereby authorized and empowered to enter upon Lot 8 of Newcastle for purposes of collecting and removing all movable property and assets out, and of the opportunity to assess and record the extent of damage and loss to their property.

5. That the fifth respondent be and is hereby directed to provide an escort to applicants or its agents onto Lot 8 of Newcastle, and provide security and protection to applicants and their agents to attend to matters pursuant to paragraph 4.

6. That first to third respondents and all other persons acting through them be and are hereby interdicted from, in any way, hindering, preventing or impeding the applicants, their agents, employees or invitees from implementing and executing the provisions of paragraph 4.

7. That first to third respondents pay applicants costs of suit on a legal practitioner and client scale; the one paying the other to be absolved.”

The facts deposed to by the applicants are generally as follows.

In the early hours of 8 June 2010 a group of persons entered Silverton Estates Lot 8 demanding to take over “their” property. Initially, the group numbered seven but with time the number increased to twenty. The group broke down the main entrance doors and gained entry into the main residence where they looted various items of property and threatened both the second applicant and his wife. It appeared to the applicants that the group comprised of drunken “youths”. As a result of the threats of violence to their persons and property, the applicants were forced to vacate Silverton Estate, leaving behind much of their household and other property.

The evidence at hand indicates, without doubt, that an act of spoliation took place. The applicants are entitled to full restoration of undisturbed possession of the estate and various movables.

HH40-11 : FORRESTER ESTATE (PVT) LTD vs DANIEL CHIRUME
Ruled By: CHIWESHE JP

In this urgent chamber application the applicant seeks a provisional order in the following terms:“1. TERMS OF FINAL ORDER SOUGHT1.1 The provisional order be and is hereby confirmed.1.2 That the respondent shall pay costs of suit.2. INTERIM RELIEF GRANTEDA “Mandament van spolie” be and is hereby granted restoring the “status quo ante” which prevailed prior to the 1st October ...

In this urgent chamber application the applicant seeks a provisional order in the following terms:

“1. TERMS OF FINAL ORDER SOUGHT

1.1 The provisional order be and is hereby confirmed.

1.2 That the respondent shall pay costs of suit.

2. INTERIM RELIEF GRANTED

A “Mandament van spolie” be and is hereby granted restoring the “status quo ante” which prevailed prior to the 1^st October 2010 to the respondent's occupation of a piece of land known as Elsinora, situate in the district of Mazowe, and that such restoration be achieved by the eviction of the respondent, his possessions and all persons holding through him from the property in question.

3. SERVICE OF ORDER

That service of this order be effected by the applicant's legal practitioners or the Deputy Sheriff / Messenger of Court on the respondent.”

The founding affidavit is sworn to by Duncan Hamilton, a Director of the applicant company. The affidavit is to the following effect.

The applicant is a company duly incorporated and registered in terms of the laws of Zimbabwe. It carries out its farming operations at Forrester Farm, Mvurwi. The farm is demarcated into several sections. The applicant's majority shareholders are German nationals whose investment is protected by a “Bilateral Investments Promotion and Protection Agreement (BIPPA”) which was signed by the Governments of Zimbabwe and Germany on 29 September 1995.

On 1 October 2010, the respondent forcibly occupied the D section of Forrester Farm on the strength of an offer letter. D section is also referred to as Elsinora. This occupation took place without the applicant's consent or court order. Prior to the occupation, the applicant was in peaceful and undisturbed possession of the property. The applicant informed the respondent that the property had not been acquired by the Government, a fact which had been confirmed by several judgments of this Honourable Court between 2002 and 2009. The applicant reported this matter to the police who, acting on the instructions of the District Administrator, declined to intervene. For that reason, there was no remedy readily available to the applicant hence this application for a spoliation order. The applicant says that assuming the respondent has an offer letter, such does not entitle him to take the law into his own hands and occupy its property without its consent or court order.

It is necessary to resolve three issues that are central to this application.

HH48-11 : LEON GEOFFRY HEATHCOTE vs MP MATONGO and MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: BHUNU J

The applicant and the first respondent are engaged in a vicious scramble over the right to occupy the Remainder of Lot 19 of Umsungwe Block measuring 69.5113 hectares situate in the District of Gweru in the Midlands Province. While the description of that land varies, its identity is not in dispute.The applicant claims the right ...

HH135-10 : TREVOR GIFFORD vs I. MUGOMBA and MUYESU and RONALD MUCHENGA and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP

The applicant seeks a spoliation order in the form of a provisional order couched as follows – “TERMS OF THE FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms:- (a) The forcible ejectment from Wolverhampton Farm of the applicant by the first to third respondents and ...

The applicant seeks a spoliation order in the form of a provisional order couched as follows –

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

(a) The forcible ejectment from Wolverhampton Farm of the applicant by the first to third respondents and all those acting in consent with them is unlawful.

(b) The cutting of the applicants gum plantation and sale of the timber by the first respondent and those acting through him is unlawful.

(c)The fourth respondent shall do all that is necessary to give effect to, or enforce, the terms of the above orders.

(d) Respondents shall pay the costs of this application.

INTERIM RELIEF GRANTED

Pending finalization of the matter, the following relief is granted;

(i) First to third respondents and all those acting through, or in concert with them claiming occupation, or in possession of the applicant's house on subdivision 17 Wolverhampton Farm, Chipinge shall restore possession and occupation of the house to the applicant who is hereby entitled forthwith to resume occupation of the house and to continue his farming operations without hinderance, interference or destruction.

(ii) First respondent, and those acting through him, shall not harvest applicant's gum plantation and shall not sell the timber.

(iii) If necessary, fourth respondent shall do all that is necessary to enforce the terms of this order.

SERVICE OF PROVISIONAL ORDER

1. Service of this application and provisional order shall be made on the respondents by the applicant's legal practitioners and/or the Deputy Sheriff, Harare.”

According to the applicant, on 13 June 2010, him and his wife were at Wolverhampton Farm, Chipinge District when the first, second and third respondents come to their home in a motor vehicle. The three respondents were in the company of some youths. The applicant says the respondents ordered him and his wife to pack their belongings and vacate the house. The applicant refused to vacate saying he was due to attend a court case at the Chipinge Magistrates Court the following week (I understand it to be the case in which he would have been prosecuted for refusing to vacate gazetted land). The respondents would not listen to any of the applicant's pleas, and, in fear for their safety, the applicants packed what they could and left the house at around midnight. The respondents demanded the keys to the house and these were duly handed to them. The applicant says they were, in the time given, unable to remove most of their property, including livestock, farm equipment, tractors, implements and household effects. The applicant says before he left the respondents forced him to sign a note stating that he had left the house empty. The applicant says that since their departure no one is looking after their property, including crops and livestock. Further, he states that the first respondent is already cutting down gum tress on the farm and selling the same.

The fourth respondent is not opposed to the grant of the order sought and will abide by the court's ruling.

The first respondent has filed a notice of opposition and an opposing affidavit. In that affidavit, he states that he is a business person running a bakery and two shops in Chipinge. He is a lawful beneficiary of the land reform programme in terms of an offer letter issued to him by the acquiring authority on 10 February 2009. He has been allocated subdivision 19 of Wolverhampton Farm in Chipinge…,. He is one of nineteen new farmers who were allocated land on the farm. He states that most of the new farmers have been taking up their plots since 2004. He has moved onto the fields within the boundaries of his allocated plot. He denies the allegations of spoliation levelled against him, and specifically denies committing any acts of looting and theft as alleged. He says that the applicant removed his belongings from the farmhouse on 13 June 2010 and left other property in the hands of one Magaisa, the applicant's clerk. He says he has duly moved onto the farm fields which the applicant had not been using in the last three years. The fields had been abandoned, and, therefore, the question of spoliation does not arise. He says he and his employees have been on the fields since the beginning of the 2009-2010 farming season. He denies occupation of the farmhouse, and says the second and third respondents told him that him that the applicant had left voluntarily. He produced a note signed by the applicant to that effect. He denied cutting down the applicant's gumtrees and blames the other new farmers resettled on the farm for doing so. He further states that this application has been filed for purposes of delaying the applicant's trial at the Magistrates Court set down for 30 June 2010. He produced his offer letter duly signed by the acquiring authority.

Assuming that to be the case, it is a development that is inconsistent with what the applicant told the court so far as the history of the farm is concerned. He says that the subdivisions on the farm are a result of agreement between him and the acquiring authority in terms of which the rest of the farm would be offered to new farmers and he would retain that portion of the farm on which the main house and outbuildings are located, measuring one hundred and fifty hectares. I assume this portion to be Plot Number 17 erroneously referred to as subdivision 19 of the first respondent's offer letter. Secondly, and also consistent with the history of the farm, new farmers have been taking up the rest of the plots since 2004. The applicant has not raised any issues against them and appears to be in peaceful co-existence with them. The problem seems to arise with the arrival of the first respondent armed with the offer letter dated 10 February 2009. If the offer letter, as I resume, relates to the same subdivision on which the applicant's house is situated and in respect of which the applicant, given the history of the farm, believes to have been successfully reserved for his use and occupation then conflict is bound to arise.

It appears to me then that the applicant, prior to the arrival of the first respondent, and, more dramatically, before the events of 13 June 2010, was in peaceful and undisturbed possession of Plot 17 measuring one hundred and fifty hectares. It is the respondents who, without due process, have sought to despoil the applicant's possession. They were not even prepared to wait for the outcome of the criminal proceedings against the applicants scheduled for 13 June 2010.

I would dismiss the first respondent's defence on the grounds that the applicant's version of events is more probable and consistent with the history of the farm. I believe the first respondent was directly involved in the events of 13 June 2010. In any event, by his own admission, the first respondent is occupying the same Plot as the applicant. The applicant has not been evicted from this Plot through due process of law, and, therefore, the first respondent cannot take up the Plot without the applicant's consent. To say that he has not been involved in the removal of the applicant from the house, and is therefore not to blame, is no defence to the present application. The fact remains that he is on that subdivision occupied by the applicant. It does not matter whether he has chosen to confine himself to the fields or any other portion of the applicant's subdivision.

Accordingly, I reject the first respondent's defence to this application. The fourth respondent does not oppose the application or any order that the court may deem appropriate.

The provisional order is granted in the following terms-

That you show cause to this Honourable Court why a final order should not be made in the following terms.

TERMS OF FINAL ORDER SOUGHT

(a) The forcible ejectment from subdivision 17 of Wolverhampton Farm of the applicant by the first to third respondents, and all those acting in concert with them, is unlawful.

(b) The cutting of the applicant's gum plantation and sale of the timber by the first respondent, and those acting through him, is unlawful.

(d) Respondents shall pay the costs of this application.

INTERIM RELIEF GRANTED

Pending finalization of the matter the following relief is granted:

(i) First to third respondents, and all those acting through or in concert with them claiming occupation or in possession of the applicant's house on subdivision 17 of Wolverhampton Farm, Chipinge, shall restore possession and occupation of the house to the applicant who is hereby entitled, forthwith, to resume occupation of the house and to continue his farming operations on subdivision 17 of Wolverhampton Farm (measuring one hundred and fifty hectares) without hinderance, interference or obstruction.

(ii) First respondent, and those acting through him, shall not harvest applicant's gum plantation and shall not sell the timber.

(iii) If necessary, fourth respondent shall do all that is necessary to enforce the terms of this order.

HH220-10 : BACHI FARM (PVT) LTD and COBBLESTONE INVESTMENTS and TRIBACK (PRIVATE) LIMITED vs OLIVER DZVENE and HOWARD MATARE and OTHERS
Ruled By: CHIWESHE JP

In this urgent chamber application the applicants seek a provisional order in the following terms - “TERMS OF THE FINAL ORDER SOUGHT 1. That the 1st to 7th respondents, their families, workers and/or agents are hereby ordered to restore to the first to third applicant companies and its workers to unhindered access, occupation and possession of ...

In this urgent chamber application the applicants seek a provisional order in the following terms -

“TERMS OF THE FINAL ORDER SOUGHT

1. That the 1^st to 7^th respondents, their families, workers and/or agents are hereby ordered to restore to the first to third applicant companies and its workers to unhindered access, occupation and possession of the remainder of Weltevrede Estate also called Bhachi Farm (hereinafter called the farm) and specifically:-

(a) The farm workshop complex and yards;

(b) The 3 farm houses and yards;

(d) The various farm structures and buildings housing the applicants' various equipment; farm materials, inputs and property and to include:

(e) 20 tones of semi-graded tobacco from the 2009 to 2010 tobacco season awaiting bailing and loading for conveyance to the market;

(f) The first and second applicant's joint milling business equipment, and stocks therein;

(g) Various irrigation equipment;

(h) 6 tractors;

(i) 2 lorries;

(j) 2 pick-up trucks;

(k) Various other farming equipment and workshop materials apart from the ones listed above;

(l) 3000 litres fuel (2000 litres diesel and 1000 litres petrol);

(m) Various farm chemicals and fertilizers;

(n) Various household goods and effects and/or other properties in and at the 3 farm houses thereon belonging to the first and second applicant companies;

(o) Various important office documents and records.

2. The 1^st to 7^th respondents, their families, workers, and agents shall forthwith move off the properties listed in para one (1) above together with all their belongings, so as to restore the status quo ante obtaining prior to the period 26 August 2010 up to 21 September 2010.

(i) To the extent that it becomes necessary, the Deputy Sheriff Chinhoyi be and is hereby authorized and empowered to attend to the eviction of the aforementioned persons and their belongings.

(j) Pursuant thereto, the Deputy Sheriff Chinhoyi is authorized to and empowered to enlist the services and/or assistance of any member of the Zimbabwe Republic Police to attend to the eviction of any such person so that the provisions of this order are executed and implemented in full.

3. The first to seventh respondents, their families, workers and/or agents are hereby prohibited from occupying or taking over possession and/or utilizing any improvements and properties listed in para one (1) above, through extra judicial means.

4. The 1^st to 7^th respondents, their families, workers and/or agents shall, likewise, make no attempt to introduce farming equipment or any material onto the properties listed in para one (1) above and are hereby interdicted and prohibited from interfering in any way with the 1^st to 3^rd applicants' operations at Weltevrede Estates (Bhachi Farm), Banket or with the applicants' Directors, workers and/or agents through extra judicial means.

5. The first to seventh respondents, their families, workers or agents shall make no further attempt to take over possession of the said properties or to utilize any equipment, materials and farm structures on the farm or any part of the farm, either directly or indirectly in the absence of the due process of the law and they shall not attempt to restrain or control the movement of any person or property onto or off the farm unless and until the first to third applicant companies have been lawfully evicted from the farm in terms of the laws of Zimbabwe.

6. The 1st to 7^th respondents shall pay costs of this application, on an attorney-client scale.

INTERRIM RELIEF

Pending confirmation of the final order the applicants are granted the following interim relief:-

(1) That the 1^st to 7^th respondents and all the other persons claiming occupation and/or possession of the remainder of Weltevrede Estate and specifically:-

(a) The farm workshop complex and yards;

(b) The 3 farm houses and yards;

(d) The various farm structures and buildings housing the applicants' various equipment, farm materials, inputs and property and to include:

(e) 20 tonnes of semi-graded tobacco from the 2009 to 2010 tobacco season awaiting bailing and loading for conveyance to the market;

(f) 1^st and 2^nd applicant's joint milling business and equipment, and stocks therein;

(g) Various irrigation equipment;

(h) 6 tractors;

(i) 2 lorries;

(j) 2 pick-up trucks;

(k) Various other farming equipment and workshop materials apart from the ones listed above;

(l) 3000 litres fuel (2000 litres diesel and 1000 litres petrol);

(m) Various farm chemicals and fertilizers;

(n) Various household goods and effects and/or other properties in and at the 3 farm houses thereon belonging to the 1^st and 2nd applicant companies;

(o) Various important office documents and records;

through them and/or any other person not being a representative, employee or invitee of the 1^st to 3^rd applicants shall forthwith vacate the said remainder of Weltevrede Estate Banket and surrender all the security locks keys thereto.

(i) To the extent that it becomes necessary, the Deputy Sheriff Chinhoyi be and is hereby authorized and empowered to attend to the eviction of the aforementioned persons, and to remove all the respondent's security locks with the assistance of a locksmith should the respondents fail to remove them on their on in terms of clause (1) above.

(ii) Pursuant thereto, the Deputy Sheriff Chinhoyi be and is authorized to and empowered to enlist the services and/or assistance of any member of the Zimbabwe Republic Police to attend to the eviction of any such person so that the provisions of this order are executed and implemented in full.

(2) That the 1^st to 7^th respondents and all other persons claiming occupation or possession of the property through them or any other person, not being a representative, employee or invitee of the 1^st to 3^rd applicant company are interdicted from entering upon the property or interfering with the 1^st to 3^rd applicant's normal business and operations, or any of the applicant's movable or immovable equipment or material on the farm or using any threat of violence or force upon the applicant, its representatives, invitees or employees.

(3) The 1^st to 7^th respondents, their families, workers and/or agents are hereby prohibited from occupying or taking over possession and utilizing any improvements and properties listed in para one (1) through extra judicial means.

(4) This order shall not be construed to affect in any way, access to the farm by officers of the relevant Government ministries and members of the relevant land committees in the course of their duties in terms of the Land Acquisition Act [Chapter 2:10] and allied legislation, should such a need arise.”

It is not clear whether this is an application for eviction or spoliation or both.

While the papers show that what was intended to be achieved was both an order for eviction and an order for spoliation counsel for the applicants appeared to be leaning more towards spoliation than eviction.

HH230-10 : KWIK-PAK (PRIVATE) LIMITED vs EDWARD MASHIRINGWANI and SHEPHERD MAKONI
Ruled By: KUDYA J

On 30 October 2009, the applicant company filed an urgent chamber application seeking spoliatory relief. The draft order was couched in these terms - “TERMS OF THE FINAL ORDER SOUGHT That you show cause why an order in the following terms should not be granted; 1. That respondents, or any person acting on their behalf, shall be ...

On 30 October 2009, the applicant company filed an urgent chamber application seeking spoliatory relief. The draft order was couched in these terms -

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause why an order in the following terms should not be granted;

1. That respondents, or any person acting on their behalf, shall be and are hereby barred from in any way interfering with applicant's possession and control of the portion of Friedwell Farm (that it controlled immediately before 29 October 2009), including in any way interfering with the possession by the applicant's workers of the farm compound and shall so refrain from any such future interference save as may be authorised by a binding and operational order of a court of competent jurisdiction.

2. That the first respondent shall pay costs of suit (if he opposes this application) and that such costs shall be at an Attorney-Client scale.

INTERIM RELIEF

Pending the return day, it is hereby ordered;

1. That the respondents, or any person acting on their behalf or for the purpose of furthering their interests, shall be and are hereby ordered to restore to the applicant's possession such amenities as were immediately before 29 October 2009 under the applicant's use and control including proper access to the main entrance to the farm, the piggery, the crocodile pens, the paddocks, the farm compound, the office house, until the finalization of this matter on the return date.

2. That the respondents shall not in any way stop the applicant's representatives and workers from accessing the piggery, the crocodile pens, the main entrance to the farm, the homestead, the compound and such amenities the applicant had access to immediately before 29 October 2009 until the finalization of this matter on the return date.

SERVICE OF THE PROVISIONAL ORDER

The applicant's legal practitioners shall be and are hereby granted leave to serve this provisional order upon the respondents.”

On 4 November 2009, after hearing counsel, I delivered judgment and granted an order in terms of the first paragraph of the interim relief sought…,.

The facts

It was common cause that Friedwell of Reinfield farm in Makonde District of Mashonaland West Province was compulsorily acquired by the State and the first defendant was, on 27 July 2007, issued with an offer letter for the entire farm. In July 2007, the first respondent occupied a portion of the farm. The applicant remained on the portion that the first respondent could not occupy because it was being used by the applicant for pig, crocodile and cattle farming. On 29 October 2009 the second respondent, who happened to be the Farm Manager of the first respondent, denied access to the piggery, paddocks and crocodile pens to the applicant's workers. The cattle were driven from the paddocks to the abattoir where there is no grazing and a truck which brought feed was refused entry at the main gate. On 30 October 2009, the respondents attempted to forcibly take over the farm compound from the applicant resulting in the gunshot injury to five of the applicant's employees and the destruction of the property of its employees.

While the first respondent filed an opposing affidavit denying the averments made by the applicant, it was apparent from the supporting affidavit attributed to the second respondent that the applicant had full control and custody of a portion of the farm that was referred to its founding affidavit from July 2007 until the events of 29 and 30 October 2009.

The merits

Counsel for the applicant submitted that the applicant was merely required to establish evidence of a prima facie right of spoliation against the respondents.

That submission is contrary to authority.

In Blue Rangers Estates (Pvt) Ltd v Muduviri & Anor SC29-09…., MALABA DCJ stated that “a spoliation order cannot be granted on the evidence of a prima facie right.”

The onus lies on the applicant to establish, on a balance of probabilities, that it has been despoiled.

Counsel were agreed on the two essential elements for spoliation. They were set out by GUBBAY CJ in Botha & Anor v Barret 1996 20 ZLR 73 (S)…, thus -

“It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are:

(a) That the applicant was in peaceful and undisturbed possession of the property; and

(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.

See Nino Bonino v de Lange supra at 122; Kramer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C) at 753; Davis v Davis 1990 (2) ZLR 136 (H) at 141C.”

Counsel for the applicant submitted that the applicant made and proved both these essential elements.

I am satisfied that the applicant demonstrated that it was in possession of the portion of the farm which the respondents have forcibly taken away from it.

Counsel for the first respondent, however, argued that while the applicant was in possession of the portion in issue, that possession was neither peaceful nor undisturbed. He contended that the possession was shaken by the compulsory acquisition and the criminalization of the applicant's continued stay in defiance of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

In Gifford v Muzire & Ors HH69-07…, I expressed myself on the point in this manner-

“In my view, it was common cause that the applicant had physical control of the farm in question before the new farmers occupied it on 22 August 2007. I however hold that, by operation of law, by 4 February 2007, his possession was no longer peaceful and undisturbed. The Gazetted Land (Consequential Provisions) Act was the source of the disturbance. Transient relief came for him in the form of the notice of eviction of 12 March 2007, which was served on him on 3 April 2007. The acquiring authority authorized him, as it is wont to do by virtue of section 3(2)(a) of the Gazetted Land (Consequential Provisions) Act, to stay until 30 June 2007. From 30 June to 22 August 2007 he remained in physical control of the farm even though his continued stay was illegal. In my view, possession that is tainted with illegality cannot be peaceful and undisturbed. The notice of eviction, and his response to it, of 16 April 2007, underscored the point that he was no longer in a peaceful and tranquil state of mind. I, therefore, find that he neither had the right of nor the right to possess the farm. The absence of the mental right undermined the physical act. In my view, by operation of law, he did not have peaceful and undisturbed possession of the farm after 30 June 2007. But even if I am wrong on the application of the mental aspect of possession, and such possession denotes physical control only, it seems to me that the applicant's case would still fail on the basis of the second essential element of spoliation.”

The submission of counsel for the first respondent, and the sentiments I expressed in Gifford v Muzire & Ors HH69-07, overlooked the definition of undisturbed and peaceful possession that was approved by ADAM J in Davis v Davis 1990 (2) ZLR 136 (H) and affirmed by GUBBAY CJ in Botha & Anor v Barret 1996 20 ZLR 73 (S). At 41E-F ADAM J quoted with approval the observations of ADDELSON J in Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) that -

In terms of all the authorities cited, the 'possession', in order to be protected by a spoliatory remedy, must still consist of the animus - the 'intention of securing some benefit to' the possessor; and of detentio, namely the 'holding' itself…,. If one has regard to the purpose of this possessory remedy, namely 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) Intends, by such use, to secure the benefit to himself; and

It is apparent from the definition of possession that the mental element is met once the possessor intends to derive some benefit from his possession. That intention does not appear to be affected by the criminalization of his conduct.

The facts adduced on behalf of the applicant, in the founding affidavit, demonstrated that it had both the intention of securing some benefit and the physical control of the portion of the farm in question. These were not affected by the compulsory acquisition of the farm or by provisions of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Unlike in the Gifford v Muzire & Ors HH69-07 case, the applicant demonstrated, and the respondent did not challenge its averment, that it did not consent to the dispossession of its possessory right. The applicant established, on a balance of probabilities, that, it had been despoiled and is thus entitled to the remedy it sought.

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Spoliation or Mandament van Spolie re: Approach, Claim of Abandonment and Freedom from Arbitrary Eviction

SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA Ruled By: CHIDYAUSIKU CJ

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HH06-08 : DIOCESE OF HARARE vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA AND RETIRED BISHOP SEBASTIAN BAKARE Ruled By: HUNGWE J

HH06-08 : DIOCESE OF HARARE vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA AND RETIRED BISHOP SEBASTIAN BAKARE Ruled By: HUNGWE J

HH31-09 : JEPHAT GUTE vs AMOS JUMBE Ruled By: UCHENA J

HH50-09 : GRAMARA ENTERPRISES (PVT) LTD AND COLIN BAILIE CLOETE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LAND, LAND REFORM AND RESETTLEMENT AND MR NORMAN KAPANGA Ruled By: MAVANGIRA J

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER Ruled By: CHIDYAUSIKU CJ

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA Ruled By: MAWADZE J

HB16-12 : BEKITHEMBA NYATHI AND TWO OTHERS vs THE OFFICER-IN-CHARGE (BULAWAYO CENTRAL POLICE STATION) AND TWO OTHERS Ruled By: NDOU J

HB16-12 : BEKITHEMBA NYATHI AND TWO OTHERS vs THE OFFICER-IN-CHARGE (BULAWAYO CENTRAL POLICE STATION) AND TWO OTHERS Ruled By: NDOU J

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HH16-09 : RICHARD ETHEREDGE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LANDS, LAND REFORM AND RESETTLEMENT and SENATOR EDNA MADZONGWE Ruled By: GOWORA J

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HB116-09 : EDWARD MANGENA and MALAKI MPOFU vs NINNO FILANNINO and FIVE OTHERS Ruled By: NDOU J

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HH48-11 : LEON GEOFFRY HEATHCOTE vs MP MATONGO and MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: BHUNU J

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HH220-10 : BACHI FARM (PVT) LTD and COBBLESTONE INVESTMENTS and TRIBACK (PRIVATE) LIMITED vs OLIVER DZVENE and HOWARD MATARE and OTHERS Ruled By: CHIWESHE JP

HH230-10 : KWIK-PAK (PRIVATE) LIMITED vs EDWARD MASHIRINGWANI and SHEPHERD MAKONI Ruled By: KUDYA J

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SC32-12 : SWIMMING POOL & UNDERWATER REPAIR PL and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL and PATTERSON TIMBA vs JAMESON RUSHWAYA and ANNIE RUSHWAYA
Ruled By: CHIDYAUSIKU CJ

HH50-09 : GRAMARA ENTERPRISES (PVT) LTD AND COLIN BAILIE CLOETE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LAND, LAND REFORM AND RESETTLEMENT AND MR NORMAN KAPANGA
Ruled By: MAVANGIRA J

HH06-08 : DIOCESE OF HARARE vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA AND RETIRED BISHOP SEBASTIAN BAKARE
Ruled By: HUNGWE J

HH06-08 : DIOCESE OF HARARE vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA AND RETIRED BISHOP SEBASTIAN BAKARE
Ruled By: HUNGWE J

HH31-09 : JEPHAT GUTE vs AMOS JUMBE
Ruled By: UCHENA J

HH50-09 : GRAMARA ENTERPRISES (PVT) LTD AND COLIN BAILIE CLOETE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LAND, LAND REFORM AND RESETTLEMENT AND MR NORMAN KAPANGA
Ruled By: MAVANGIRA J

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

SC28-09 : NYASHA CHIKAFU vs DODHILL (PRIVATE) LIMITED AND SIMON DONALD KEEVIL AND ANOTHER
Ruled By: CHIDYAUSIKU CJ

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

HB16-12 : BEKITHEMBA NYATHI AND TWO OTHERS vs THE OFFICER-IN-CHARGE (BULAWAYO CENTRAL POLICE STATION) AND TWO OTHERS
Ruled By: NDOU J

HB16-12 : BEKITHEMBA NYATHI AND TWO OTHERS vs THE OFFICER-IN-CHARGE (BULAWAYO CENTRAL POLICE STATION) AND TWO OTHERS
Ruled By: NDOU J

HH34-09 : JOHN CAMERON ASHER vs MINISTER OF STATE RESPONSIBLE FOR NATIONALL SECURITY, LANDS, LAND REFORM AND RESETTLEMENT IN THE PRESIDENT'S OFFICE AND T. NYIKADZINO
Ruled By: CHATUKUTA J

HH34-09 : JOHN CAMERON ASHER vs MINISTER OF STATE RESPONSIBLE FOR NATIONALL SECURITY, LANDS, LAND REFORM AND RESETTLEMENT IN THE PRESIDENT'S OFFICE AND T. NYIKADZINO
Ruled By: CHATUKUTA J

HH16-09 : RICHARD ETHEREDGE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LANDS, LAND REFORM AND RESETTLEMENT and SENATOR EDNA MADZONGWE
Ruled By: GOWORA J

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

HH95-09 : FORRESTER ESTATE P/L vs MUTUMWAPAVI CHARLES RITCHIE VENGESAYI
Ruled By: CHATUKUTA J

HH95-09 : FORRESTER ESTATE P/L vs MUTUMWAPAVI CHARLES RITCHIE VENGESAYI
Ruled By: CHATUKUTA J

HH128-09 : ROUTE TOUTE BV & OTHERS vs MINISTER OF NATIONAL SECURITY RESPONSIBLE FOR LAND LAND REFORM AND RESETTLEMENT & OTHERS
Ruled By: PATEL J

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT
Ruled By: BERE J

HH148-09 : BOK ESTATES (PRIVATE) LIMITED vs HUBERT MASARA AND MR MASARA AND MR MAKANDA AND MINISTER OF STATE FOR NATIONAL SECURITY, LANDS, LAND REFORM AND SETTLEMENT
Ruled By: BERE J

HH152-09 : PATRONELLA CHARUMBIRA In her capacity as the executrix dative of the estate of the late Adben Benjamin vs HUDSON MUSASA and REGISTRAR OF DEEDS and ASSISTANT MASTER
Ruled By: MUSAKWA J

HB102-09 : ERMANUS GERHADUS GROVE vs MARTIN MAKONESE and MRS MARWISA and MR CHIGARIRO
Ruled By: KAMOCHA J

HB116-09 : EDWARD MANGENA and MALAKI MPOFU vs NINNO FILANNINO and FIVE OTHERS
Ruled By: NDOU J

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET
Ruled By: PATEL J

HH22-10 : FORRESTER ESTATE (PVT) LIMITED vs EDGAR CHIDAVAENZI
Ruled By: MAKONI J

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

HH122-10 : GIBSON CHAMBOKO and MR CHAMBOKO SNR and CHANGE TOMAS KWODZI vs PATRIC JOHN STOOKS and P J STOOKS (PRIVATE) LIMITED
Ruled By: MAKONI J

SC17-13 : EVANS TAPFUMANEYI MUNYATI vs GODFREY MUGAYI
Ruled By: CHIDYAUSIKU CJ, GARWE JA and OMERJEE AJA

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SC43-14 : STREAMSLEIGH INVESTMENTS (PRIVATE) LIMITED vs AUTOBAND INVESTMENTS (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

SC29-15 : BASE MINERALS ZIMBABWE (PRIVATE) LIMITED and PETER VALENTINE and MUYENGWA MOTSI vs MABWE MINERALS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GWAUNZA JA and BERE AJA

HH128-10 : SILVERTON ESTATES (PVT) LTD and MICHAEL CHARLES JAHME vs IGNATIOUS KAMBA and PROSPER SITHOLE and SAMUEL ZUZE and OTHERS
Ruled By: CHIWESHE JP

HH40-11 : FORRESTER ESTATE (PVT) LTD vs DANIEL CHIRUME
Ruled By: CHIWESHE JP

HH48-11 : LEON GEOFFRY HEATHCOTE vs MP MATONGO and MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: BHUNU J

HH135-10 : TREVOR GIFFORD vs I. MUGOMBA and MUYESU and RONALD MUCHENGA and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP

HH220-10 : BACHI FARM (PVT) LTD and COBBLESTONE INVESTMENTS and TRIBACK (PRIVATE) LIMITED vs OLIVER DZVENE and HOWARD MATARE and OTHERS
Ruled By: CHIWESHE JP

HH230-10 : KWIK-PAK (PRIVATE) LIMITED vs EDWARD MASHIRINGWANI and SHEPHERD MAKONI
Ruled By: KUDYA J