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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

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, ...
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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 ...
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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

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 ...
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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

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 ...
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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 ...
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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 ...
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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 ...
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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, ...
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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 ...
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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 ...
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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.
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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 ...
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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 ...
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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 ...
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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.
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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.
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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...
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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.
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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 ...
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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]. ...
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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 ...
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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 ...
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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

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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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.
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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 ...
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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 ...
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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.
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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, ...
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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 ...
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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 ...
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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 ...
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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 ...
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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

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 ...
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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 ...
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