The applicant filed an urgent application wherein it seeks an order in the following terms-

“TERMS OF INTERIM ORDER

1. Pending the determination of case number 6909/10, the respondents be and are hereby ordered to give the applicant forthwith vacant possession of its business premises at Number 1 Manchester Road, Industrial Area, Chinhoyi and all its property thereat.

2. If the respondents fail to comply with (1) above, the third respondent or the police be and is hereby authorized to assist the applicant recover possession thereof.

3. The respondents be and are hereby ordered to refrain from interfering with the applicant's business operations in any way pending the determination of case number HC6909/10.

TERMS OF FINAL ORDER SOUGHT

1. The applicant shall have vacant possession of its business premises at Number 1 Manchester Road, Chinhoyi, as well as all its other assets thereat.

2. The respondents have no right to interfere in anyway with the applicant's business.”

The founding affidavit attached to the application was deposed to by one Patrick Tembo who is a Director of the applicant. The basic allegations are as follows. The second respondent, Patrick Tembo, Lameck Chinyemba, Stanford Makore and John Nyamujara are all shareholders in the applicant, with each of them holding a 20% shareholding of the issued shares. It is common cause that sometime in about June 2010, the second respondent sold the entire shareholding in the applicant to the first respondent.

The sale was unauthorised.

A report was made to the police and a docket was opened for fraud charges.

The Board of Directors then resolved to suspend the second respondent from the Board pending the finalization of the issue of the unauthorised sale. The deponent averred that “they” became aware of the fraudulent sale sometime in August 2010. An application has since been filed with the Registrar of this court to have the sale declared void under case number HC6909/10. The deponent avers, further, that despite being advised of the attitude of the applicant towards the sale of the shares and its assets..., the first respondent had, with the connivance of the second respondent, illegally occupied the applicant's premises at Number 1 Manchester Road, Industrial Area, Chinhoyi on 7 October 2010. The first respondent had claimed a right to occupy the premises based on the alleged sale concluded with the second respondent.

The deponent further alleged that Mtetwa and the second respondent had forcibly divested him of the keys to the depot on the premise that the first respondent had now taken control of the applicant. A report was made to the police who attempted to remonstrate with the respondents to no avail.

On 8 October 2010 the deponent and others regained temporary control of the depot in the morning and changed the locks. Around midday the respondents had allegedly forced themselves back onto the premises by breaking the locks to the gate. The first respondent has been in occupation since then and has also assumed control of the fuel depot. After an initial attempt at conciliation, the police have refused to get involved claiming that the dispute is a civil matter.

The facts of this matter, which are common cause, may be summarized as follows.

The applicants used to own Orange Groove Estate situate in the District of Bulilima…, which was properly acquired by Government under the Land Reform Programme in terms of section 16(B)(2)(a)(ii) of the Constitution of Zimbabwe. The Notice of Acquisition was published in the Zimbabwe Government Gazette of 19 June 2009. The applicants are now former owners of the said farm….,.

Evicting them without following the procedure laid down in section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] would, in my view, be improper as the law protects even unlawful possessors. The legislature was alive to this that is why it laid down the procedure to be followed in order to avoid self help and anarchy. The respondents should not take the law into their own hands as such conduct cannot be countenanced or condoned.  This is a well-established principle. When dealing with the principle ROBINSON J in Mutsotso & Ors v Commissioner of Police & Anor 1993 (2) ZLR 329 (H)…, had this to say about the general principle as stated by INNES CJ in Nino Bonino v de Lange 1906 TS 120…, 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 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.”

As explained by MILLIN J in De Jager & Ors v Farah & Nestadt 1947 (4) SA 28 (W)…, a case where demolition of premises was undertaken without legal process-

“What the court is doing is to insist on 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 the due process of law, and if he is interfered with the court will restrain such interference pending the taking of action against him for ejectment by those who claim that he is in wrongful possession. The fact that the applicants have no legal right to continue to live in this slum and would have no defence to proceedings for ejectment, does not mean that proceedings for ejectment can be dispensed with, nor does it make any difference to the illegality of the respondent's conduct that the occupation by the applicant carried with it penal consequences.” …,.

The learned judge went on to explain that in that case the court held that the conduct of the respondents to demolish certain premises, which were dilapidated, verminous and generally unsanitary, without legal process in order to secure the ejectment of the occupiers, they had committed acts of spoliation and they were therefore interdicted from further demolishing those premises.

The applicants in casu are now illegal occupiers of the farm and the living quarters and it admits of no doubt that they would have no defence at all to an action for their ejectment therefrom, but that does not mean that the respondents can interfere with their possession without due process of law. The applicants are liable to a fine equal to level seven or to imprisonment for a period not exceeding two years. The penalty is indeed a severe one but it still does not mean the respondents, in particular the third respondent, can just occupy part of the farm thereby despoiling the applicants. The respondents should not take the law into their hands. That is forbidden by law and the court cannot condone that.  ROBINSON J in Mutsotso & Ors v Commissioner of Police & Anor 1993 (2) ZLR 329 (H)…, continued thus-

“As stated by DIEMONT J in Fredericks & Anor v Stellenbosh Divisional Council 1977 (3) SA 113(c) at 117C:

This is an application whose draft order is couched in the following terms:

“IT IS ORDERED

1. Glenorchie Farm, Insiza, held by Applicant under Deed No.1888/1953 be and is hereby declared to be a property wholly privately owned by the Applicant.

2. That an order be and is hereby granted that First and Second Respondents and all who claim through them, are trespassing on Applicant's privately owned property, which property is more fully described as Glenorchie Farm, Insiza District, held under Title Deed 1888/1953.

3. Alternatively to 2 above, an order be and is hereby granted that the First and Second Respondents unlawfully invaded Glenorchie Farm in March 2008, and thereby perpetrated an act of spoliation, as neither Applicant or its authorised representatives ever authorised or consented that the Respondents could move their property or cattle into occupation of part of Glenorchie Farm, Insiza, as more fully described under Title Deed 1888/1953.

4. An order that First and Second Respondents, their cattle and property, and all other persons presently on Glenorchie Farm, Insiza District (more fully described under Title Deed 1888/1953), who claim through them, be and are hereby immediately and forcibly evicted from and out of Glenorchie Farm, Insiza, being a property declared above as privately owned by the Applicant.

5. An order that First and Second Respondents pay the costs of this application on an attorney and client scale.”…,.

The first respondent is described as “an invader” and the second respondent is his foreman….,.

The brief facts, which are largely undisputed, are that the applicant holds title to the farm and the first respondent has been allocated the same farm or part thereof. It is apparent that there is a dispute as to the boundaries of the first respondent' piece of land. It is the applicants' argument that he was in lawful and undisturbed possession of his property until he was dispossessed of it by the first respondent.

Our law protects property rights thereby preventing self-help. On that score, the applicant is indeed entitled to his property unless there are other lawful reasons for his dispossession.

The first respondent raised two points in limine. That the matter is res judicata and that there is a non-joinder. The res judicata refers to case number HC1634/08 which was adjudicated upon by this court.

I dismissed the applications with costs in both matters under HC3062/09 and HC483/10 and indicated that my reasons for doing so will be provided in due course. 

These are they.

The salient facts of the matter are the following. The applicant (in both matters), a company registered with limited liability in terms of the laws of Zimbabwe, seeks protection of the law by way of a spoliation order against the respondents. The subject of the spoliation order is agricultural land formerly owned by the applicant but acquired by the Government of Zimbabwe in 2002 under the land reform and resettlement programme.

This is an urgent application whose relief is couched in the following terms:-

“TERMS OF FINAL ORDER SOUGHT

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

1. That until such time as the ownership or right to occupy the property known as Highfields Farm, in the district of Nyamandlovu, being the remaining extent of Dlikosch (hereinafter “the farm”) is determined by a court of competent jurisdiction and until such time as the Applicant is lawfully evicted by due process of law and the applicant has exhausted all legal remedies available to him, the respondents are interdicted from evicting the applicant or from taking occupation of the farm and are ordered to allow the Applicant to enjoy peaceful and undisturbed possession thereof. It is further ordered that the Respondents are interdicted from interfering in any way of the farming operation carried out by the Applicant or its directors, employees or servants or from entering the farm or placing property or employees thereon (save as may be provided by law).

2. That in the event that by the time this order is granted the Applicant has been evicted without due process of law or the Third respondent has remained in occupation of the farm, then it is ordered that the Third Respondent or any person occupying the farm through him, be and is hereby evicted and the Applicant be restored to peaceful and undisturbed possession thereof.

3. That in the event that the appropriate officer of Court is unable to affect the terms of this order on the third and fourth respondents then the first respondent is ordered to render all such necessary assistance to the appropriate officer of court in executing such order.

4. That the respondents, jointly and severally, one paying the others to be absolved, pay the costs of this application.

INTERIM RELEIF GRANTED

Pending determination of this matter, the Applicant is granted the following relief:-

1. The respondents are interdicted from taking any steps to evict the Applicant from the property described herein save in accordance with an order issued by a court of competent jurisdiction.

2. It is ordered and declared that until such time as the relief set out in the final order is determined the Applicant and all those who occupy the farm through him are entitled to remain in peaceful and undisturbed possession of the farm and further entitled to continue farming operations on the property and the third and fourth respondents are interdicted from taking any steps to occupy the farm either themselves or through any agent, servant or employee or to hinder or disturb the Applicant in his occupation thereof. In the event that at the time of serving this order upon him the third and fourth respondents have remained in occupation of the farm or any portion of the farm, either in person or through his agents, employees or servants, then it is ordered that he immediately vacate the farm and restore the applicant vacant possession thereof.

3. It is further ordered that in the event of the first respondent instituting a prosecution under the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] against the applicant or any director, agent servant or employee of the applicant then such prosecution be commenced by way of summons.

SERVICE OF PROVISIONAL ORDER

In terms of the Rules of Court save in respect of the First respondent service may be made by registered post in terms of Order 5 Rule 42.”

The applicant is a registered company which carries on business in terms of the laws of Zimbabwe and carries out farming operations in the Nyamandlovu area, Matabeleland North. The applicant is represented by Gary Denis Godfery who deposed to a founding affidavit in this matter. It is his evidence that up to the year 2000, the applicant operated five contiguous farms totalling 18000 hectares. This land was gazetted in 2000 by way of Government Notice number 509/2000. Despite this process, the applicant remained in occupation of the land up to 2007 when, according to it, the first respondent sympathized with its plight after noticing that it had been left with only 200 hectares out of its original 18000 hectares holding. He expressed a view that the applicant should have been left with at least 1500 hectares since it was in the low rainfall region of Matabeleland North. It further stated that the first respondent undertook to issue an offer letter to it but did not do so. No action was taken towards the finalization of the land occupation process of the property in question until February 2009 when he was arrested and detained under the allegation of illegal occupation. However, the matter did not go to court as the prosecutor declined to prosecute. The applicant, therefore, continues to occupy and till the land to date. However, on the 28th May 2010, the applicant's farm was visited by members of the police, presumably under the instructions of the third respondent. They were accompanied by officials from the fourth respondent. They were looking for the deponent, but, however, could not find him. They went away and came back on the 31st May 2010, but, again could not find him. It is alleged that they proceeded to occupy the property and prevented workers from carrying on their daily duties. They, further, turned-off the electricity supply and cut-off water supply to staff on the farm and livestock. As a result of their actions livestock has not been fed or watered. In paragraph 22 of his affidavit he stated -

“The applicant has no wish or intention to voluntarily vacate but there is immense pressure and I am truly fearful that the police will act decisively in the face of any opposition. I am aware that a number of white farmers have been detained under the most appalling conditions and indeed the police have intimated that there will be no work allowed on the farm until (the deponent) hands myself (sic) in.”

That the applicant is against occupation of this property by the respondent admits of no doubt as it is clear from the above quotation by its representative.

The fourth respondent argued that the applicant's continuous occupation of this property is unlawful as this is gazetted land and as such it is now State land.

This fact admits of no doubt.

What can be gleaned from the papers and submissions made by counsel is that the parties entered into some kind of a partnership sometime in August 2009, which was not reduced to writing, in terms of which they may have agreed to mine jointly at True Blue Mine in Filabusi. The detailed terms of the Agreement are not clear but it would appear that the two applicants were to operate or mine from certain mining dumps while the respondent did the same on other dumps. 

All the mining claims belong to the respondent.

This understanding subsisted for some time but a dispute has arisen between the parties which has propelled the applicants to institute summons proceedings against the respondent out of this court under case number HC1971/10 seeking confirmation of the existence of a partnership and a debatement of the partnership accounts. Alternatively, they seek damages for unjust enrichment. 

The summons issued on 27 September 2010.

In their declaration in that matter, the applicants allege that in terms of the Agreement the respondent was required to contribute in the form of the mining dumps or plants under his claim and accommodation for them. On their part they were to contribute capital of $10,000=, expertise and labour.

They do not allege that they did make the contribution in pursuance of the Agreement.

The applicants further allege, in the declaration, that the respondent now denies the existence of the partnership and has given them notice to vacate the house that they occupy and to cease all operations on the unnamed mining dump which they operate.

The respondent has entered appearance to defend that action but is yet to file a plea.

On 12 October 2010, the applicants issued this urgent application which has been opposed by the respondent. The applicants allege, in the founding affidavit deposed to by the first applicant and verified by the second applicant, and is very brief indeed, as follows:

“(5). The facts which give rise to the present application are that the Respondent has unlawfully and without our consent taken possession of two mining plants which have always been under the control of myself and the second Applicant. The mining plants which were taken over are called the 'OFFICE PLANT' which the Respondent took over sometime in June 2010 and the 'SPORO PLANT' which he took over on 2 September 2010. As a direct result of the Respondents takeover of the said mining dumps, water supply to the mining plant called the 'DRC PLANT' which we are currently working on will be cut as soon as Respondent starts operating the SPORO PLANT which is likely to happen on the second or third week of October 2010. This will gravely affect our mining operations as we need water for the cyanidation process.

(6). I am advised, which advice I accept, that in an application of this nature, which is for a spoliation order, all I need to allege is that I was in undisturbed use, occupation or control of certain property and that my use, occupation or control has been interfered with. In that regard, I confirm that having been in undisturbed control of the mining dump and the Respondent has, without my consent or that of the second Applicant, taken it over.”

The affidavit ends there and is signed before a Commissioner of Oaths.

How the applicants came to occupy the dumps, what they did on it, and how the respondent has “despoiled” them is not explained.

In his opposing affidavit, the respondent says nothing about the existence of a Partnership Agreement between himself and the applicants and any other relationship between them. By implication, he seems to accept that the applicants once enjoyed possession of the two plants. He, however, premises his opposition on the fact that the mining claims belong to himself and his wife and that at the time he took them over the “applicants were not working on them and had long abandoned them”. He seems to suggest, without saying it though, that to the extent that the applicants had abandoned the mines, himself as the owner of the claims, was at liberty to take over. He then firmly maintains that the applicants lost possession, not through his actions, but through their own conduct of abandonment…..,.

When the hearing, resumed on 19 October 2010, no further papers had been filed and counsel for the applicants took the view that the applicants' papers, as they stood, made out a case for the relief sought.   He had no explanation as to the alleged abandonment other than to argue that the onus to prove that abandonment extinguished possession rested upon the respondent. For that proposition he relied on the case of Quarrying Enterprises (Pvt) Ltd v John Viol (Pvt) Ltd and Others 1985 (1) ZLR 77 (H).

In that case, EBRAHIM J…, stated…, -

“Ownership is a fundamental concept of our law. It is acquired and extinguished only in certain circumstances. The Council maintains that it had the right to dispose of these blocks because;

(a) They had been abandoned; and

(b) They were found on its land.

In order to prove that ownership has been extinguished by abandonment, it is necessary to prove an intention to abandon.”

We can easily dispose of that argument as being without merit at all.

The Quarrying Enterprises (Pvt) Ltd v John Viol (Pvt) Ltd and Others 1985 (1) ZLR 77 (H) case is clearly distinguishable from the present case as it dealt with ownership and not possession.

It was submitted, on behalf of the respondent, that the remedy of spoliation, being a quick remedy, should be resorted to immediately and cannot be brought several months after the alleged spoliation took place. 

I do not agree with this argument because in Manga v Manga 1991 (2) ZLR 251 (S)…., the Supreme Court held that a delay of five (5) months could not be regarded as acquiescence by a party to dispossession. See also Botha and Another v Barrett 1996 (2) ZLR 73 (S)….,.

In Botha and Another v Barrett 1996 (2) ZLR 73 (S), the Supreme Court however stated…., that -

“Although, depending on the length, the period of delay may not per se constitute a bar to the grant of a spoliation order, it could well be a relevant factor, in deciding whether the dispossession had been consented to.”

Which brings me to the issue of whether the applicants have made a case for a spoliation order.

The requirements for such an order to be granted are two fold and have to be proved for a spoliation order to be granted. They were stated in Botha and Another v Barrett 1996 (2) ZLR 73 (S)…., as follows -

“(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 also Kramer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C) 753.

A respondent in an application of this nature can repel the application by raising essentially two defences.  According to the learned authors SILBERBERG and SCHOEMAN, The Law of Property, 2^nd Edition, Butterworths….,. –

“A respondent may, as a general rule, raise only the following defences in spoliation proceedings:

(a) Applicant was not in the peaceful and undisturbed possession of the thing in question at the time of deprivation;

(b) Respondent has not committed spoliation.

With regard to the first defence the respondent may, in an appropriate case, prove that the applicant did not exercise the measure of physical control which was necessary to acquire or retain possession or that the intention to derive a benefit from holding the thing was absent.

Regarding the second defence, the respondent may, for instance, prove that his act of dispossessing the applicant was in fact not unlawful in that it amounted to counter-spoliation, was justified in terms of some or other statutory enactment or took place with the consent of the applicant.” ….,.

In casu, the respondent has argued that the applicants abandoned the mines and that at the time that he took them over they were not in possession at all as a result of their own conduct. The applicants were given an opportunity to file supplementary affidavits to disprove this claim. They elected not to.

In law, this is a clear defence to the application for spoliation.

I agree with counsel for the respondent that the applicants have failed to prove a clear right as could be prosecuted by way of spoliation application.

While the time they took to bring this application may not, on its own, act as a bar to the grant of a spoliation order (Botha and Another v Barrett 1996 (2) ZLR 73 (S)), it is relevant in showing the applicants' disinterest in the mines.

It would appear that this application was triggered by an unexplained fear that the respondent may cut water supplies to the “DRC PLANT” which the applicants hold dear and not by the takeover of the “OFFICE and SPORO PLANTS.” If, indeed, the takeover of these plants had been an issue, the applicants would have protested at the time the first takeover took place….,.

Having come to the conclusion that the applicants have not been able to prove the essentials of a spoliation application, it is not necessary for me to deal with the other procedural issues raised on behalf of the respondent.

The brief facts of the matter, which I discerned after a full hearing, can be summarised as follows:

The applicant married one Baker Eddy Morten at Harare on 16 February 2000 in terms of the Marriages Act [Chapter 5:11]. Mr Baker Eddy Morten owned, among other properties, two residential flats, numbers 112 and 243 at Dandaro Village, Borrowdale Harare. Mr Baker Eddy Morten died in Florida USA on 9 August 2010 and his daughter, the first respondent, Marlene Denise Kemi Morten, a practising lawyer in USA was, on 20 January 2011, appointed executrix testamentary of Baker Eddy Morten's estate.

The second respondent is the Manager of the third respondent, an association of home owners at Dandaro Village governed by the Dandaro Home Owners Association Constitution and also a Notarial Deed of Servitude registered with the Deeds Office regulating the rights and affairs of the members of Dandaro Village.

In August 2009, the late Baker Eddy Morten was in the USA receiving treatment after a road traffic accident. The applicant had returned to Zimbabwe from the USA leaving Baker Eddy Morten in the USA after being refused a residency permit by USA authorities. The applicant, on 12 November 2009, filed for divorce in this court but the divorce proceedings were not brought to finality as Baker Eddy Morten died when the divorce proceedings were at pre-trial conference stage. Apparently, when the late Baker Eddy Morten was in the USA for treatment the applicant moved into Flat No. 112 Dandaro Village, Borrowdale, Harare on 31 July 2010. This was after one M. Pisani, occupying that flat, had been removed by the first respondent who had been given power by Baker Eddy Morten to administer his affairs in Zimbabwe.

On 10 December 2010 (Baker Eddy Morten had died on 9 August 2010) Dandaro Home Owners Association, through the second respondent, wrote a letter to the applicant “ordering her” to vacate Flat 112 Dandaro Village, Borrowdale, Harare forthwith. Two reasons were given in that letter. First, that the applicant was underage to be resident at Dandaro Village in terms of the third respondent's Constitution. Second, that the applicant had been, over an extended period of time since taking occupation of Flat 112 Dandaro Village, Borrowdale, Harare proved to be a nuisance to other residents and that the third respondent could no longer tolerate her.

The applicant, through her legal practitioners, responded to this ultimatum to vacate Flat 112 Dandaro Village, Borrowdale, Harare by stating that the second and third respondents could not resort to self-help by seeking to unlawfully kick her out from Flat 112 Dandaro Village, Borrowdale, Harare without a proper court order. The applicant made it clear that she was staying put at Flat 112 on the basis of being the surviving spouse for Baker Eddy Morten.

The second and third respondents disregarded the applicant's protests and on 14 December 2010 the applicant, through her legal practitioners, wrote to the first respondent's legal practitioners raising the issue that the first respondent, acting in cahoots with the second and third respondents, had evicted the applicant on 13 December 2010 from Flat 112 Dandaro Village, Borrowdale, Harare by locking her out without a valid court order. The applicant approached police at Borrowdale Station for help as she argued that the conduct of the first, second and third respondents amounted to spoliation. It would appear the applicant, with the help of the police, was able to re-occupy Flat 112 Dandaro Village, Borrowdale, Harare. However, the applicant's joy was short-lived as she was advised by the respondents to vacate Flat 112 Dandaro Village, Borrowdale, Harare. This prompted the applicant to file an urgent chamber application on 15 December 2010, case no. HC9293/10, seeking an interdict against the first, second and third respondents on the basis of her right as a surviving spouse to stay in Flat 112 Dandaro Village, Borrowdale, Harare and not to be evicted without a valid court order.

On 15 January 2011, HUNGWE J, who dealt with the urgent chamber application, HC9293/10, dismissed with costs the application on the basis that the applicant had failed to establish a prima facie right to reside at Dandaro Village taking into account the Constitutional restrictions imposed relating to age and absence of written permission by the third respondent. HUNGWE J did find that the balance of convenience was in favour of the refusal of the interim interdict. In short, therefore, HUNGWE J, in HC9293/10 declined to grant the applicant an interdict against the first, second and third respondents.

On 20 January 2011, the first respondent, who was appointed executrix testamentary, was issued with Letters of Administration by the Master of the High Court DR1718/10. On the same day, armed with the Letters of Administration, the first respondent, with the assistance and indulgence of the second and third respondents, now buoyed by this outcome of the case HC9293/10 by HUNGWE J, proceeded to eject the applicant from Flat 112 Dandaro Village, Borrowdale, Harare.

This then prompted the applicant, on 24 January 2011, to again approach this court on an urgent basis seeking the provisional order referred to supra, which is now the subject matter of this judgment.

The basis of the applicant's case can be summed up as follows:-

1. That by evicting her from Flat 112 Dandaro Village, Borrowdale, Harare, the respondents have committed an act of self-help which is unlawful and have therefore illegally removed the applicant and her belongings from Flat 112 Dandaro Village, Borrowdale, Harare in her absence and without her consent;

2. That by removing the applicant's property from Flat 112 Dandaro Village, Borrowdale, Harare and kicking her out, thus barring her from entering the flat, the first, second and third respondents committed an act of spoliation which entitles the applicant to the remedy of mandamentum van spolie.

3. That if the interim relief is not granted, irreparable harm would be occasioned as the applicant's property is unsecured, applicant has no other place to stay, and that she has no other remedy.

The application is opposed.

The applicants approached this court on a certificate of urgency, seeking spoliatory relief on an interim basis and declaratory and interdictory relief in the final against the respondents.

At the hearing, the respondents raised various points in limine viz:

(i) Whether the applicants had locus standi to seek protection of the court;

(ii) Whether the deponents to the founding affidavits had authority;

(iii) Whether spoilatory relief was available to the applicants when they allege more than possession i.e. go into the merits of the possession;

(iv) Whether the matter is urgent;

(v) That there are serious disputes of fact; and

(vi) The second applicant cannot claim to have been despoiled of possession which it never had.

A brief background to the matter is that the first applicant operates Inez Mine in Kadoma. On 28 April 20112, the first, second, and third respondents entered into an agreement in terms of which the entire issued shares in the first applicant were purchased by the second applicant. The parties agreed to amend the agreement. The effect of the addendum was to vest control and possession of Inez Mine in the new Board of Directors of the first applicant. What happened after the addendum is in dispute. The applicant avers that Messrs Fred Moyo and Paul Diamond were appointed Directors of the first applicant with the old Board of Directors resigning. The third respondent remained as Operations Manager in the first respondent until he resigned mid-November 2012.

This is disputed by the third respondent.

What is not in dispute is that, the third respondent, having been away from the mine since November 2012 visited the mine on 1, 2 and 3 February 2013. He ordered the deponent to the founding affidavit not to allow Messrs Fred Moyo and Paul Diamond to have access to the mine. On 3 February 2013, he handed a letter from the third respondent's legal practitioners to the deponent which is Annexure H. He informed him (the deponent) that the respondents were taking back their mine. The third respondent instructed two men to change the chain and the locks to the main gate into the mining complex. The third respondent installed his security at the gate with instructions not to allow Messrs Fred Moyo and Paul Diamond access into the mine. He also handed over a document to one Mr Mkunguluthi, a miner. The document indicated that the third respondent and the other former Directors had been re-instated as Directors of the company as evidenced by the letterhead.

The last paragraph of the letter from the third respondent's legal practitioners reads:

“(c) Ex-abudante cautela, we would like to point out that your privilege and/or right to occupy and control Inez Mine is extinguished as a result of the aforesaid cancellation and that, as a consequence, control of and ownership rights in Inez Mine reverted to and now vest in our clients with immediate effect.”

I have decided to quote it as it will be relevant later on in the judgment….,.

As regards the act complained of, it is common cause that the third respondent, armed with a letter from his legal practitioners, visited the mine on three successive days. He changed the locks to the main gate, changed the security personnel and instructed one of the miners to return to his previous posting before the agreement between the applicants and the first respondent. He did not have the consent of the Directors of the applicants. These acts were not in terms of any statutory enactment. He, in fact, was acting on the strength of Annexure H, written by his legal practitioners and addressed to the applicants, in particular the last paragraph. He was advised that he could take control and ownership with immediate effect.

The legal basis for such advice is not clear from the letter.

In spoliation proceedings, an applicant must establish the necessary factual basis for a finding that the respondents threatened or disturbed their occupation of their property. See Minister of Agriculture & Development v Segopolo 1992 (3) SA 967…,.

What the applicant must establish was clearly spelt out in Vant'Hoff v Vant'Hoff & Ors (1) 1988 (1) ZLR 294 (HC)…, thus:

“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; and

(ii) That he had been unlawfully deprived of such possession.

In casu, I am satisfied that the applicants are entitled to the relief they seek. The third respondent had no legal basis whatsoever to act in the manner he did.

On 12 October 2012, the applicant in this matter applied for and was granted a provisional order whose interim relief was as follows:-

“Pending the confirmation or discharge of this order, the 1^st and 2^nd respondents and all those claiming under them be and are hereby ordered to vacate Stand 1419 Beitbridge forthwith failing which the Deputy Sheriff be and is hereby authorized to evict them and to restore vacant possession to the applicant or her agents.”

The background information to this matter is briefly this.

Barbra Lunga was appointed provisional liquidator of a company known as Spoornet Investments (Pvt) Ltd by an order of this court on 12 September 2012. In the exercise of her powers, as a Provisional Liquidator, she requested the respondents to vacate Stand number 1419 Beitbridge which belonged to Spoornet Investment (Pvt) Ltd which was at that stage under provisional liquidation. The respondents voluntarily vacated the premises on 21 September 2012. However, after three weeks, the respondents had a change of heart and decided to return to the same premises they had allegedly vacated voluntarily. They began to cause trouble by wanting to force their way back onto the premises but were prevented by security guards - albeit not for a long time. On the morning of 10 October 2012, the respondents went to the premises with a truck load of their supporters who were armed with axes, sticks and other dangerous weapons. They forced open the gate and poured into the premises of the company forcing the security guards to flee. The respondents then announced to the company's clients that they had taken over and were in charge from then onwards.

That was self help and anarchy. It was a clear case of spoliation. The status quo ante needs to be restored.

The respondent invaded that piece of land without a court order and started felling trees. This was without the consent of the applicant.

The requirements of an interlocutory interdict are;

(a) A prima facie right, even if it is open to doubt;

(b) An infringement of such right by the respondent or a well grounded apprehension of such an infringement;

(c) A well-grounded apprehension of irreparable harm to the applicant if the interlocutory interdict should not be granted and if he should ultimately succeed in establishing his right finally;

(d) The absence of any other satisfactory remedy; and

(e) That the balance of convenience favours the granting of an interlocutory interdict.

See Setlogelo v Setlogelo 1914 AD 221; Bozimo Trade and Development Company (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd and Others 2000 (1) ZLR 1 (H)…,: and Carslone Enterprises (Pvt) Ltd v Svova HB35-11…,.

I am satisfied that those requirements have been met in the present case. I am fortified in that conclusion by the fact that the land which the respondent has been clearing and the new boundary he seeks to enforce cuts right through the applicant's homestead at the farm. There will therefore be devastating consequences should the respondent move the boundary as he intends to do before the respective rights of the parties have been determined.

In a spoliation application, the applicant has to prove possession and that he was unlawfully dispossessed. I am in total agreement with the pronouncement made by REYNOLDS J in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248…, where he said:

“It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing – that spoliatus ante omnia restituendus est (Beukes v Crous and Another 1975 (4) SA 215 (NC). 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 that a competent court of law assesses the relative merits of the claims of each party. Thus, it is my view that the lawfulness or otherwise of the applicant's possession of the property in question does not fall for consideration at all.”

Counsel for the respondent conceded that the respondent committed an act of spoliation by resorting to self-help.

The second defence that was raised is that restoration is impossible because a third party has already assumed possession of the Borrowdale Shop.

Again, unless verifiable evidence to the contrary is provided, the contents of the first respondent's opposing affidavit stand and must be accepted by the court as prima facie evidence that is unchallenged. The defence that restoration is impossible applies where a third party has acquired possession of the thing. In SILBERBERG & SCHOEMAN, The Law of Property…,:

“If restoration is objectively impossible, the mandament should not be granted, and the applicant should rely on a delictual claim for damages.”

See Moleta v Fourie 1975 (3) SA 999; Potgieter v Davel 1966 (3) SA 555.

The court is required to interrogate the bona fides of the parties, whether the averment that restoration is impossible is bona fide, and whether there is a genuine third party. In this case, the lease agreement attached was duly signed. It commenced on the 25^th of January 2014. The first respondent attached a receipt to show that rent has been paid. No suggestion was made that the lease is not genuine, that no rent was received, or that the third party has not taken possession. There is simply no evidence of mala fides on the part of the first respondent in taking physical possession of the Borrowdale Shop on 24 January 2014. Mentally, the first respondent had regained possession on 3 January 2014. It was entitled to look for another tenant, and in the absence of proof that it had knowledge of the provisional judicial management order and proceeded in defiance of it, no other motive can be imputed to it but that of a commercial entity trying to make money in the normal course of business.

If there had been some evidence which the court could rely on that the first respondent knew of the provisional judicial management order, then its actions, in proceeding with the eviction, would have amounted to contempt of court. In my view, the applicants would NOT have been entitled to spoliation even where the first respondent had been found to be in contempt of court. In my view, once the second applicant lost the intention to benefit from the Borrowdale Shop it ceased to be an asset, in terms of the Companies Act, and the first applicant could not, as at 8 January 2014, or any other date, purport to take control of something that was no longer an asset of the second applicant.

In the result, I find that the applicants have failed, both at common law and by operation of statute, to qualify for the relief that they seek. Even if they had both fulfilled the requirements of spoliation, which they did not, the first respondent's defences to spoliation would have defeated their claim. I find that restoration is objectively impossible; a bona fide third party is now in occupation of the premises. The applicants have other remedies in delict; in this case, the horse has already bolted.

The application was placed before me through the urgent chamber book. The matter was set down for hearing. During the hearing, on 21 January 2014, the respondent filed opposition papers. Both the applicant and respondent's counsels addressed the court on urgency and the merits.

The applicant sought to have the status quo maintained arguing that the respondent had despoiled them by unlawfully taking the law into their own hands. The applicant argued that the respondent had locked gates to the premises from which the applicant operates a school. This was to the detriment of more than 100 students and parents who paid fees for their children's education. 

The respondent, on the other hand, raised two points in limine.

(1) That the applicant has not complied with Order 32 as they have not stated the application is urgent.

(2) That the applicant has no locus standi to bring the matter since the applicant is run by the respondent….,.

The applicant prayed the court to grant to him an interim relief of a spoliation order or that of an interdict, in the alternative….,.

In so far as the first relief is concerned, the applicant stated that he was in quiet, peaceful and undisturbed possession as well as occupation of Stand Number 419/420,  Borrowdale Brooke Township, Harare until 26 March 2014 when, through the unlawful action of the respondents, the first respondent in particular, his occupation, possession and enjoyment of the property was disturbed by the first respondent, who, pursuant to a court order of 13 March 2014, evicted his family members and him from the same.

The applicant, it is noted, has remained out of the property from which the first respondent evicted him from 26 to 31 March 2014.

This is an urgent chamber application for the following relief:

“INTERIM RELIEF

Pending the return, date, the applicant is granted the following relief:

1. The respondent, or any persons acting on their behalf or for the purpose of furthering their interests, shall be and are hereby ordered to immediately stop demolishing or interfering with the applicant's properties mentioned in clause 3.3 and 3.4 of Annexure C (the Memorandum of Agreement).

TERMS OF THE FINAL ORDER SOUGHT

That you show cause why an Order in the following terms should not be granted:

1. That the respondent or any person acting on its behalf shall be and is hereby interdicted from demolishing applicant's properties alluded to in Clause 3.3 and 3.4 of the Memorandum of Agreement of Sale or interfering with applicant's possession or of its employees of the said properties and so refrain from any such future in reference save as maybe authorized by a binding and operational Order of a competent jurisdiction.

2….,.”

The applicant also purported to have approached this court in terms of section 74 of the Constitution of Zimbabwe Amendment (No.20) Act 2013. Section 74 provides;

“74. Freedom from arbitrary eviction

No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.”

The applicant has not joined the persons residing in the homes being demolished.

Section 85 of the Constitution lays down the persons who are entitled to approach the court alleging that a fundamental right or freedom enshrined in Chapter 4 of the Constitution has been breached. The following persons are listed as having capacity to approach the court:

“85

1. …,.

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests of a group or class of persons;

(d) Any person acting in the public interest; and

(e) Any association acting in the interests of its members.”

The applicants have failed to satisfy me that they have a right to approach the court claiming violation of section 74 of the Constitution without joining the persons whose homes are being demolished.

In any case, the respondents are not acting arbitrarily but are acting in accordance with the agreement entered into between itself and the plaintiff and in terms of the arbitral award.

I am of the view that the matter should fail on the basis of the points in limine raised.

This matter was brought before me on an urgent basis.

The facts of the matter are that the applicant owns a piece of land known as the Remainder of Helenvale Block L, measuring 567- 2717 ha, held under Deed of Transfer number 2264/85 situate in the District of Bulawayo. The first and second respondents, who are land developers, are sub-dividing and selling that land notwithstanding the fact that the land belongs to the applicant.

On 13^th day of October 2006, the applicant made an application to the sixth respondent for a permit for the further subdivision of subdivision L of Helenvale Block. Pursuant to that application, on 29^th day of July 2008, a permit for the subdivision of the property was granted. In terms of the permit, the township was to be known as “Denver Township.”

In 2011, the applicant engaged a team of engineers to design roads, sewer and water reticulations, and, in 2013, the applicant's designs were lodged with the Umguza Rural District Council. Since the day of its purchase, the applicant has enjoyed peaceful possession of subdivision L of Helenvale Block and intends to develop the property as a township. This peace was disturbed by the first and second respondents' activities that commenced in April 2014 when the applicant found a group of people with surveying equipment carrying out surveying work. The applicant was alarmed and approached the fourth respondent for assistance. Although he was initially promised that the surveying would be confined to “State land”, this turned out not to be the case. Thereafter, the applicant approached the Zimbabwe Republic Police but nothing came of that endeavour.

On 22^nd May 2014, the applicant saw certain persons carrying out surveying work on Subdivision L of Helenvale Block. These people insisted that they were working on “State land.” These persons were purportedly acting under the fourth respondent's authority. The first and second respondents are selling off such subdivided pieces of land to the civil service. 

The applicant then filed this application.

The plaintiff was allocated the Stand in question, as a member of a cooperative. An existing Stand was allocated and the nature of relief sought requires redress by the court. 

Clearly, the defendant appears to have raised or taken the special plea for dilatory purposes. I conclude that there is no merit in the special plea filed by the defendants.

Having said this, the Court expresses its disquiet at the allegations that the appellant forcibly, and without regard to due process of law, attempted to evict the respondent and his family from the farm.

Could this be a question of a boundary dispute?

The applicant complains of an act of spoliation while the second respondent insists that he has always remained farming at his own piece of land which was allocated to him as far back as 2002 and increased in 2007. The first respondent has been caught in the cross-fire, he being merely an employee of the second respondent not a “friend” as alleged by the applicant.

Historically, the applicant was allocated Subdivision 3 of Bulembe in the Insiza District of Matabeleland South Province, a farm measuring 750 hectares, by an offer letter issued by the acquiring authority on 20 September 2007. He says that farm is a consolidation of plots 3, 4, 5, 6, and 17 of Bulembe Farm. The consolidation was recommended by the District Administrator by letter dated 15 August 2007 in consideration of his capacity to effectively utilize the land.

The second respondent was also allocated Subdivision 1 of Bulembe Estate measuring 142,3 hectares by offer letter dated 21 November 2002; which offer was later revised by another offer letter dated 20 September 2007 so that Subdivision 1 of Bulembe was increased to 287,6 hectares.

It is not clear how this was done, but the second respondent has helpfully provided two maps tending to show the location of the subdivisions. If those maps are anything to go by then it is not easy to understand how the parties could possibly have a boundary dispute. This is because Subdivision 1 is very far away from the subdivisions being claimed by the applicant. In particular, Plot 17, which the applicant claims was invaded by the respondents is not connected at all to the land allocated to the second respondent.

Be that as it may, the applicant complains that his peaceful occupation of the land allocated to him was disturbed by the respondents on 28 December 2015. They invaded his Plot 17, and, using a tractor, ploughed 6 hectares of it while exhibiting an uncompromising and menacing mood. To him, this was an unprovoked aggression on a neighbouring farm, a real act of spoliation by any standard. It is as a result of that continuing act of spoliation that the applicant has made this urgent application for restoration of possession interfered with in the middle of a cropping season by persons who have resorted to self-help.

The second respondent has filed an opposing affidavit in which he states that the first respondent is in fact his Manager. He says that he has been conducting his agricultural activities on his own subdivisions, which he does not specify, but maintains that the boundaries were shown to him by the Insiza District Land Committee. He has no interest whatsoever in the subdivisions of the applicant and has never trespassed on subdivisions 3, 4, 5, 6 and 17. In fact, he is the one who filed a report with the police on 31 December 2015 that the applicant was interfering with his farming activities. 

Again, he has not substantiated that claim or described the nature of the interference.

This is a spoliation application in which the applicant only has to prove possession which was forcibly or wrongfully interfered with in order to succeed. As stated by REYNOLDS J, a pronouncement with which I associate myself, in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 240 (H)…,:

“It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing – that spoliatus ante amnia restituendus est (Beukes v Crous and Another 1975 (4) SA 215) (NC)). 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 that a competent court of law assesses the relative merits of the claims of each party. Thus, it is my view that the lawfulness or otherwise of the applicant's possession of the property in question does not fall for consideration at all.”

See also Moyo v Chinhamo HB111-11; Mukuvisi Tashinga Housing Co-operative v Musukuma and Others HH478-15.

The applicant has stated that the respondents approached him on two separate occasions prior to moving in to plough his land requesting to be allowed to access his land and till it. The first approach was made in 2014 while the second in December 2015. On both occasions, he turned them down. They then elected to resort to self-help on 28 December 2015. Although the second respondent denies those claims and maintains that he has not encroached on any land belonging to the applicant, it is difficult to accept that because the applicant would not have a basis for complaint at all.

In addition, the second respondent himself would not have had a cause to approach the police at Fort Rixon complaining about interference by the applicant if the two of them had maintained a touch-me-not attitude which the second respondent would want to suggest.

What is clear is that the second respondent is well aware of the applicant's boundaries as he claims that he has “never used any soils or land of subdivisions of 3, 4, 5, 6 and 17.” There is therefore no boundary dispute. If anyone has ploughed 6 hectares of Plot 17, which admittedly belongs to the applicant, they have wrongfully interfered with the applicant's occupation thereby entitling him to a spoliation order. If I am wrong in arriving at that conclusion, then I still take comfort in that the second respondent will not be prejudiced at all because, according to him, he has not encroached.

Although lawfulness of possession and ownership are not pre-requisites for the grant of spoliation relief; in my view, it would be taking the point too far to assist a party who has long been ordered to vacate a piece of land, to return to that land in violation of a court order.

The applicant is a former farm owner which has been evicted from a farm known as the Glebe in the District of Goromonzi which it held by Deed of Transfer number 224/96. The farm in question was acquired by the Government under the land reform programme in terms of the Land Acquisition Act [Chapter 20:10].

When that happened, the applicant must have engaged the acquiring authority succeeding in securing a compromise in terms of which the farm was divided into two (2) and a consent order being granted by the Administrative Court on 8 August 2003 in the following:

“IT IS ORDERED BY CONSENT THAT:

1. The acquisition of the under-mentioned property, in terms of section 7 of the Land Acquisition Act [Chapter 20:10], be and is hereby confirmed:

(a) Portion of GLEBE measuring 526,81 hectares situated in the District of Goromonzi held under Deed of Transfer number 224/96.

2. The acquisition proceedings in respect of the remaining portion of GLEBE measuring 142,38 hectares situated in the District of Goromonzi held under Deed of Transfer No.224/96 be and is hereby withdrawn.

3. The applicant shall subdivide GLEBE and pay the subdivision costs thereof.

4. There shall be no order as to costs.”

Subsequent to that, the acquiring authority allocated portions of the farm, left for the applicant under the consent order, to the third, fourth and fifth respondents who gladly accepted the offer and moved to claim possession. By letter dated 27 January 2015, signed by the Provincial Administrator, the Chief Lands Officer and the Minister of State for Provincial Affairs, the applicant was given notice to vacate the farm coupled with authority to remain at the farm, winding up its affairs, up to 26 April 2015.

On 12 March 2015, the applicant instituted summons action in HC2273/15 against the Chief Lands Officer, the Minister of Lands and Land Resettlement and the third, fourth and fifth respondents herein seeking to evict the third, fourth and fifth respondents from the farm and to enforce the consent order issued by the Administrative Court 12 years ago. It says that the summons action is still pending.

The applicant has now made this application, on a certificate of urgency, seeking the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

1. The respondents are interdicted from interfering with the applicant's property rights pending the finalisation of HC2273/15.

2. The respondents' eviction of the applicant is wrongful and unlawful.

3. The respondents are barred from accessing 'The Glebe' Farm without the consent of the applicant.

PROVISIONAL ORDER GRANTED

Pending the confirmation of the provisional order;

IT IS ORDERED THAT:

1. The respondents are ordered to allow the applicant access to 'The Glebe' Farm forthwith.

2. The respondents are barred from going to 'The Glebe' farm and are prohibited from harassing the applicant's workers in anyway whatsoever pending the return date.

3. The respondents are ordered to forthwith restore Mathew Hopegood's occupation at 'The Glebe' farm and to his house and not to further interfere with his stay thereat.”

In the founding affidavit of Mathew Hopegood, the applicant states that the respondents have resorted to self help. Mathew Hopegood expressed surprise at receiving the notice to vacate the farm when he had been nursing a consent order issued by the Administrative Court 12 years ago in terms of which the applicant is entitled to conduct business at the farm while he, in turn, is entitled to stay there. He says he was “shocked” at being evicted on 8 June 2015, especially as he had filed summons action on 12 March 2015 challenging the eviction of the applicant from the farm and the respondents had not a court order for the eviction and they are not officers of the court charged with execution of court orders.

The five (5) respondents cited in the application all opposed it.

The police denied being involved at all in the eviction of the applicant and denied posting a sentinel at the gate of the farm. In fact, counsel who appeared for them, together with Mr. Mbara, of Police Headquarters, was emphatic that not only did the police not deploy at the farm, they are well aware that they have no power to perform any farm evictions with or without a court order.

The third, fourth and fifth respondents were also adamant that they had nothing to do to do with the activities of 8 June 2015. They all have offer letters in respect of the portions of the farm; being subdivisions 1, 2 and 3 which they occupy while the applicant remains on the more developed portion, namely, subdivision 4.

If I had any doubt about that then the agreement signed by the applicant and the fifth respondent, in terms of which the latter gave up subdivision 4, which had initially been allocated to him, in preference of the undeveloped subdivision 3, removed all the doubt.

If the fifth respondent was so magnanimous as to surrender a farm allocation to the applicant, what would motivate him to return and assist in the eviction of the applicant?

I agree that the citation of these respondents was based on suspicion rather than fact. Counsel for the applicant could not advance any argument to support the allegations against the five (5) respondents following the evidence placed before me in opposition.

As it turns out, it was Timothy Tendai Muyambo, the holder of an offer letter dated 28 May 2015, in respect of subdivision 4 of The Glebe, who is the culprit. He was served with this application and appeared in person to make a confession.

Counsel for the applicant applied to join Timothy Tendai Muyambo as sixth respondent as not only does he have an interest in the matter, he, in fact, is the one who has moved onto the farm and is elbowing the applicant out of the farm. Timothy Tendai Muyambo submitted that after he received an offer letter in respect of subdivision 4 he moved to take occupation. Initially, he met the applicant's representative and advised him he would be moving onto the farm on 8 June 2015 at which he expected the applicant to have vacated.

When the applicant did not, he hired people from neighbouring farms and brought them to the farm on 8 June 2015. He addressed the workers of the applicant and advised them that he was taking over the farm and that from then on they were working for him as he wanted to continue running the flower business the same way the applicant had. As the warehouse was full of stock, he instructed the workers to call Mathew Hopegood to come and remove it, sell it, and pay the workers their dues up to the takeover.

Timothy Tendai Muyambo exonerated all the other respondents, stating that the guards at the farm at the moment are his own. He did what he did with neither the police nor the other respondents. He admitted that he does not have a court order and did not elicit the assistance of the Sheriff or the police to take over the farm.

Clearly, therefore, Timothy Tendai Muyambo has resorted to self-help.

In moving for the grant of interim relief, counsel for the applicant cited section 74 of the Constitution of Zimbabwe which provides:

“No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.”

That provision is located right under Chapter 4 of the Constitution - the declaration of rights. It contains justiciable rights and binds the State and every person including juristic persons. In terms of section 46 thereof, when interpreting Chapter 4, a court is required to give full effect to the rights and freedoms enshrined in that chapter.

The right against arbitrary eviction is therefore a fundamental one and may not be derogated from.

Timothy Tendai Muyambo exhibited his offer letter dated 28 May 2015; meaning that he may have been in a hurry to enjoy the benefits of it given that he proceeded with haste only ten (10) days after he got it to move onto the farm regardless of the farm being occupied by the applicant, who is conducting a thriving flower business.

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 no matter how much of a right they have in the property possessed by another; Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 240 (H)…,.

It is critical that the status quo ante is restored until such time that a court of competent jurisdiction has determined the relative merits of the claims of the parties - the very principle sought to be protected by section 74 of the new Constitution.

When inquiring on whether spoliatory relief should be granted or not, the lawfulness or otherwise of the applicant's possession does not come into it; it being enough that dispossession was done forcibly or that there was wrongful interference with possession of a thing.

I am satisfied that the applicant has made out a good case for the relief that it seeks; it being common cause that, without a court order or due process, Timothy Tendai Muyambo arrogated to himself the power to evict the applicant and take over the farm.

In the result, it is ordered that:

1. Timothy Tendai Muyambo is hereby joined as the sixth respondent in this matter.

2. The application against the first, second, third, fourth and fifth respondents is hereby dismissed with costs.

3. The provisional order is hereby granted against the sixth respondent, Timothy Tendai Muyambo, in terms of the draft order as amended.

On the merits of the matter, after the howler about the existence or otherwise of an offer letter issued to her, the respondent's only defence is that no one was in occupation of the property when she took possession and that “the property in question was abandoned and derelict.”…,.

The situation obtaining at the moment is that land is acquired lawfully by the acquiring authority and distributed to citizens in terms of existing legislation and legal instruments put in place for that purpose.

This is as it should be because Zimbabwe embraces the rule of law. There is therefore no room for any resort to self-help and lawlessness…,.

On 2 January 2015, the applicant made an urgent chamber application for a provisional spoliation order against the respondents which I granted on 5 January 2015. I have been asked for the full reasons for my judgment and these are they.

It is common cause that there has been a legal wrangle over the ownership of subdivision 1 of Lot J of Borrowdale Farm measuring 416,25 hectares (Crowhill Farm) which has been on-going for years between the applicant and the first respondent. Each party claims ownership thereof.

The brief history of this property, which culminated in the present application for a spoliation order, is as follows;

Before 2003, it was the applicant which was in occupation of this property. The said property was gazetted in 2003 for agricultural purposes during the land reform and resettlement programme. On 10 November 2003, the first respondent was given an offer letter over the said property. She took occupation thereof. On 2 May 2014, following the Presidential Proclamation 1 of 2012, which turned the property in question from an agricultural land to an urban land meant for urban development, the Ministry of Lands, Agriculture and Rural Resettlement withdrew the offer letter it had granted to the applicant in 2003.

Meanwhile, on 17 March 2004, the applicant had obtained an eviction order against the first respondent from this court. Apparently the parties had continued to fight after the first respondent had been given the offer letter in 2003. So, following the withdrawal of the first respondent's offer letter on 2 May 2014, the applicant had a writ of ejection issued by the Registrar of this court on 7 May 2014. This writ was based on the eviction order of 17 March 2004 by this court. Following the writ, the applicant successfully evicted the first respondent from the property on 13 May 2014.

Having been disgruntled by the eviction, the first respondent came to this court on 2 July 2014 and obtained an order by default, which order set aside the eviction order of 17 March 2004 and the writ of ejection of 7 May 2014. Having obtained this order, the first respondent tried, without success, to have a writ of ejection issued by the Registrar of this court in order to evict the applicant who had taken occupation on 13 May 2014. Apparently, the default judgment of 2 July 2014 was inadequate in that it did not direct the Sheriff of the High Court to enforce that judgment. The first respondent tried to have the order amended by Justice CHIGUMBA who had granted it, but she indicated that the first respondent ought to make a court application to effect the amendment; suffice to say, the first respondent never made that application.

In its papers, the applicant averred that on 28 December 2014 the first respondent enlisted the services of the second respondent and both respondents came to the property armed with knobkerries, iron bars; assaulted the occupants and forcibly evicted them. The applicant stated that following the proclamation by the President, it had been given title to develop the land and it had developed the said land into residential Stands. Apparently, it had sold some of the Stands to individuals. When the respondents came, on 28 December 2014, they ordered everyone out including employees of the applicant and individual title holders who had bought Stands.

The foregoing resulted in the applicant rushing to this court with the present application. In response to the application, the respondents' counsel…, raised some points in limine….,.

THE MERITS

Counsel for the respondents argued that Justice CHIGUMBA's order of 2 July 2014 restored the first respondent's ownership rights to the property, and, as such, the applicant's application ought to be dismissed.

I did not attempt to make a pronouncement on this issue of ownership at all as it was not decisive of the matter. As correctly submitted by the applicant's counsel, the purpose of a mandament van spolie is to preserve law and order and to discourage people from taking the law into their own hands. In short, it is meant to prevent anarchy or lawlessness. To give effect to this, the status quo ante has to be restored irrespective of who has title to the property in question.

In a similar application in Fredericks and Another v Stellenbosch Divisional Council 1977 (3) SA 113 (C) …, it was stated the court is not concerned with the nature of the applicant's occupation but with the issue that the respondent should not take the law into its own hands. It was further stated that such conduct cannot be condoned. See also Karori (Pvt) Ltd & Another v Mujaji 2007 (1) ZLR 80 (H)…,.

In Botha and Another v Barrett 1996 (2) ZLR 73 (S)…, GUBBAY CJ…, said that in an application for a spoliation order the applicant only has to satisfy the following two requirements;

(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 also Krammer v Trustees Christian Coloured Vigilance Council Park 1948 (1) SA 748 (C)…,.

The respondent may raise the following defences;

(a) That the applicant was not in peaceful and undisturbed possession of the property at the time of deprivation.

(b) That the respondent has not committed spoliation.

In casu, as already stated above, when CHIGUMBA J gave her order the applicant was already in occupation of the property and the first respondent had been evicted following the writ of ejectment which was subsequently set aside by that order. So what it means is that the first respondent having obtained an order in her favour she had the right to enforce it. She was supposed to enforce it by following due process of the law.

In Dodhill (Pvt) Ltd & Another v Ministry of Lands & Another 2009 (1) 182 (H) it was held that a person claiming right to land is not entitled to evict the occupier without following legal process.

From the narration that was given by counsel for the respondents…, it is clear that the second respondent did not follow due process of the law in evicting the applicant on 28 December 2014. She enlisted the services of the second respondent because, according to her, the wheels of justice were turning very slowly. The second respondent's letter is clear and unequivocal. It put it in black and white that it intended to and was going to descend on the farm to repossess it.

The second respondent, as a War Veterans Association, has no locus standi to enforce the orders of this court or any other court. The Sheriff is the one who has that duty.

On 28 December 2014, the second respondent, in solidarity with their member, the first respondent, proceeded to the farm. It is not in dispute that following the respondents' presence on the farm on this day the applicant left the farm. While the applicant's counsel made submissions that it was the second respondent's members who were now on the farm, counsel for the respondents submitted that the farm was now being manned by the police. Whichever way one looked at these submissions what they showed or proved was that the applicant, who had been in possession and occupation of the property, was despoiled of it on 28 December 2014. The applicant did not dispute that when the respondents came to the farm on 28 December 2014 it was in the process of demolishing the farm house. It was submitted that the demolition of the house had been ongoing as part of the renovation process that the applicant had been carrying out as it was also claiming ownership of the same land. However, as I have already stated, it was not my mandate to decide on the question of ownership. The fact that the applicant was found demolishing the farmhouse showed that it was the applicant who had been in possession of the property prior to 28 December 2014.

The respondents raised the defence that prior to 28 December 2014 the applicant was not in peaceful and undisturbed possession of the property. It was submitted that from the time Justice CHIGUMBA gave her order, the first respondent had always had access to the farm. She still had her property there in the form of the farm house, business equipment and livestock. It was submitted that four (4) of her workers and a niece had been staying on the farm. The first respondent herself would visit the farm time and again although she would not put up for the night there. It was also submitted that the first respondent was constantly communicating with the applicant vis-a-vis her access to her property.

Let me point out that during the hearing counsel for the applicant did not comment on this issue probably because the hearing was protracted. This could be the reason why he made an oversight. I also made an oversight, otherwise I would have asked him to comment on the issue.

Be that as it may, assuming that counsel for the respondents was correct, I am of the view that the manner in which the first respondent used to access the land was without violence and was with the consent of the applicant. It was done peacefully and without the involvement of the second respondent. The violence only started at the time the second respondent descended on the farm on 28 December 2014 - upon being enlisted by the first respondent. This is what resulted in the forceful eviction of the applicant. The fact that the first respondent had to seek the assistance of the second respondent was clear testimony that the first respondent had not managed to eject the applicant. Having failed to obtain a writ of ejectment she turned to the second respondent and they resorted to violence.

Even if the first respondent had obtained a judgment in her favour, she still had to employ lawful means to evict the applicant from the said property. I need not emphasise that court orders are supposed to be enforced lawfully by following due process of the law.

I thus dismiss the defence by the respondents.

The order by Justice CHIGUMBA is the latest one in the legal wrangle that has been ongoing between the applicant and the first respondent and it has not been challenged by the applicant. The first respondent is allowed to take lawful action for the ejectment of the applicant if she so wishes. What she is not allowed to do is to resort to self-help. The applicant managed to satisfy the two requirements that ought to be satisfied in an application of this nature. It is only fair, under the circumstances, to restore the status quo ante.

In the result, I granted the interim relief of a mandament van spolie which was sought by the applicant. The order was as follows:

That pending the determination of this matter, the applicant is granted the following relief:

1. The 1^st and 2^nd respondents and all other persons claiming occupation or possession through them, jointly and severally, or any other person occupying Subdivision 1 of Lot J of Borrowdale Estates without the knowledge and consent of the applicant shall forthwith vacate the said property and that such persons shall forthwith remove all property introduced by them thereon so that the status quo ante of the property by the applicant, as at 26^th December 2014, be and is hereby restored.

2. (b) To the extent that it becomes necessary, the Deputy Sheriff is hereby authorized and empowered to attend to the eviction and removal of any person and their property so occupying the said Subdivision 1 of Lot J of Borrowdale Estates without the knowledge and consent of the applicant. Pursuant thereto, the Deputy Sheriff be and is hereby authorized to enlist the assistance of any member of the Zimbabwe Republic Police who are hereby directed to provide such assistance to the Deputy Sheriff so as to ensure that the provisions of this order are executed and implemented in full.

Self- help is frowned upon by the law because it is inimical to the rule of law.

IN ANY EVENT SPOLIATORY RELIEF IS FINAL

The law is settled that an order of spoliation is final in nature and that it determines the immediate right of possession of a particular res. It is frequently followed by further proceedings between the parties concerning their rights to the property in question – Nienaber v Stuckey 1946 AD 1049, 1053; Malan & Another v Green Valley Farm Portion 7 Holt Hill 434 CC and Others 2007 (5) SA 114 (ECD), 124 A-B.

Moreover, a spoliation order cannot be granted on the evidence of a prima facie right - Blue Range Estates P/L v Muduvisi 2009 (1) ZLR…,.

This is an appeal against part of the judgment of the High Court granting a spoliation order and other consequential relief in an application at the instance of a shareholder on behalf of a company.

The facts leading to the application before the court a quo are as follows.

The first respondent (Grandwell Holdings (Private) Limited), a private foreign company, entered into a commercial arrangement with the Government of Zimbabwe for the purpose of mining diamonds in the Chiadzwa area in Manicaland Province. In 2009, the third appellant (Marange Resources (Private) Limited), a wholly-owned subsidiary of the second respondent (Zimbabwe Mining Development Corporation) and Grandwell Holdings (Private) Limited signed an agreement. The agreement resulted in the incorporation of the second respondent (Zimbabwe Mining Development Corporation), Mbada Diamonds (Private) Limited, a private company, owned 50 percent by the first respondent (Grandwell Holdings (Private) Limited) and 50 percent by the third appellant (Marange Resources (Private) Limited).

Mbada Diamonds (Private) Limited was to mine diamonds at Chiadzwa on Special Grants granted to Marange Resources (Private) Limited.

Marange Resources (Private) Limited and Zimbabwe Mining Development Corporation are companies controlled by the Government of Zimbabwe. This extended Government's influence to the operations of Mbada Diamonds (Private) Limited through Marange Resources (Private) Limited which has a 50 percent shareholding in Mbada Diamonds (Private) Limited.

In 2015, the Government of Zimbabwe, through the first appellant (the Minister of Mines and Mining Development), crafted a policy to merge all diamond mining companies at Chiadzwa into one single entity, the fourth appellant (Zimbabwe Consolidated Diamond Company).

The parties engaged with a view of agreeing over this initiative. Meetings were convened from about March 2015. Grandwell Holdings (Private) Limited was hesitant but said it was not opposed in principle. It required a blueprint on the merger to enable it to decide whether or not Mbada Diamonds (Private) Limited should join the merger. Communication between parties to the proposed merger continued in good faith. According to Grandwell Holdings (Private) Limited's Chairman, David Kassel, Grandwell Holdings (Private) Limited's engagement was bona fide.

The engagement continued till the events of 22 February 2016. According to paragraphs 43 and 44 of Grandwell Holdings (Private) Limited's (the first respondent) founding affidavit, the shareholders of Mbada Diamonds (Private) Limited held a meeting to resolve on whether or not Mbada Diamonds (Private) Limited should join the proposed merger of diamond mining companies. That meeting ended with what the first respondent called a deadlock as the shareholders could not agree on whether or not to join the merger without further information. Marange Resources (Private) Limited (the third appellant) was willing to join the merger on the available information. Grandwell Holdings (Private) Limited, though not opposed to the merger, was taking a cautious approach. It wanted a blueprint with information which could help it make a decision on that issue. It had placed it on record that it was, in principle, not opposed to the merger. According to paragraph 39 of its founding affidavit it was not taking a position of non-co-operation as it would “seek to accommodate Government requirements wherever reasonably possible.” It was therefore not a deadlock as to whether or not Mbada Diamonds (Private) Limited could eventually join the merger. The difference between the shareholders was therefore merely on their then current positions.

On 22 February 2016, the Government, through the Secretary for Mines and Mining Development, wrote to Mbada Diamonds (Private) Limited advising it, among other things, that it had discovered that the Special Grants entitling it to mine diamonds had expired, and that, with no title, Mbada Diamonds (Private) Limited had to cease all mining activities with immediate effect and vacate the mining site.

Mbada Diamonds (Private) Limited was given 90 days to remove all its equipment and other valuables. Any further access to the mining site would be upon request to the first appellant (the Minister of Mines and Mining Development).

On the same day, the first appellant (the Minister of Mines and Mining Development) called a press conference to announce the new development that Mbada Diamonds (Private) Limited and other diamond mining companies no longer had valid Special Grants or other rights on the basis of which they could continue with their mining operations. The first appellant further announced that those companies should cease operating and vacate the mining locations within 90 days. The first appellant specifically directed those companies to remove all their machinery, equipment and other related materials from the mining locations.

On 27 February 2016, the first respondent (Grandwell Holdings (Private) Limited) brought an urgent chamber application in the court a quo seeking an interdict and a spoliation order.

The first respondent alleged that when the first appellant issued a press statement, Mbada Diamonds (Private) Limited's operations were forcibly stopped by armed police assisted by some of Mbada Diamonds (Private) Limited's senior employees. It alleged that after the first appellant's announcement, the police and officials from the first appellant moved into Mbada Diamonds (Private) Limited's processing plants and shut them down. Mbada Diamonds' security team was disbanded and evicted from site and other employees were forcibly evicted both from their work stations and their on-site residences. Security systems were paralysed. The first respondent also alleged that Marange Resources (Private) Limited, the other shareholder of Mbada Diamonds (Private) Limited, was in support of the initiative to consolidate the mining companies into a single entity and was therefore acting in concert with the first appellant to despoil the second respondent (Mbada Diamonds (Private) Limited).

The evidence on record does not support the allegation that Marange Resources (Pvt) Ltd directly participated in despoiling Mbada Diamonds (Private) Limited. It merely proves Marange Resources (Private) Limited's willingness to join the merger before receiving further information while Grandwell Holdings (Private) Limited needed further information before it could decide on whether or not Mbada Diamonds (Private) Limited should join the merger.

It was on these facts that the first respondent (Grandwell Holdings (Private) Limited) sought an interim order declaring that the conduct of the appellants, in removing Mbada Diamonds (Private) Limited's representatives from its mining site and effectively assuming control of Mbada Diamonds (Private) Limited's mine, constitutes an act of spoliation. The first respondent also sought an order directing the appellants to vacate Mbada Diamonds (Private) Limited's mining site with immediate effect and interdicting the appellants from interfering with Mbada Diamonds' operations.

Mbada Diamonds (Private) Limited, through an affidavit signed by its Chief Executive Officer, Luciyano, supported the first respondent's (Grandwell Holdings (Private) Limited) application.

The application was opposed by the appellants…,.

On the merits, the court a quo held that the appellants committed an act of spoliation on the second respondent (Mbada Diamonds (Private) Limited). The court therefore granted the application for spoliation.

The first appellant (the Minister of Mines and Mining Development) was aggrieved by that decision and appealed to this court on the following grounds:

1. The court a quo erred in not finding that, to the extent the first respondent (Grandwell Holdings (Private) Limited) had alleged facts which went beyond the question of spoliation and rather sought to assert a right to mine, and, consequently, of possession; the appellant was entitled to demonstrate the absence of the same and that, upon the court a quo accepting the absence of such rights, the first respondent could not be granted the relief of spoliation.

2. The court a quo erred in finding that the shareholder's derivative action was available to the first respondent when the founding affidavit had not made out a case for the same, and that, in any event, the first respondent had locus standi in judicio to institute the proceedings.

3. The court a quo further erred in finding that the first respondent had peaceful and undisturbed possession of the mining concessions in its capacity as Project Manager and that, therefore, it was entitled to spoliatory relief in its personal capacity when the founding affidavit did not make such allegation and relief was not sought on that basis.

4. The court a quo further erred in finding that the appellant had committed an act of spoliation against the fifth respondent when, in the circumstances, the appellant was not found to have done anything to evict the fifth respondent from mining concessions.

5. The court a quo further erred in entitling, authorising, and empowering the fifth respondent's security personnel, with all its chain of command, to remain at the mining concessions until resolution of a matter that was resolved on the 22^nd of February 2016 when the relevant statutory functionary exercised his discretion against the further extension/renewal of the special mining grants in question.

The second (Zimbabwe Mining Development Corporation), third (Marange Resources (Private) Limited), and fourth (Zimbabwe Consolidated Diamond Company) appellants were also aggrieved by the decision of the court a quo and appealed to this Court on the following grounds;

1. The court a quo erred in finding that the appellants had committed acts of spoliation against the first and second respondents in the absence of evidence or even an allegation that the appellants evicted the said respondents and in the face of evidence from the sixth respondent to the effect that its actions and presence at the mining site were for purposes of preventing unlawful mining activities as well as securing State property.

2. The court a quo erred in finding that the first respondent had been despoiled when no evidence had been placed before it, or even alleged, regarding any peaceful and undisturbed possession of the mining site or spoliation by the appellants.

3. The court a quo erred in finding that the first respondent had locus standi and/or that the shareholder's derivative action was available to the first respondent in the absence of evidence that the second respondent was unwilling or unable to institute the proceedings.

4. The court a quo erred in concluding that the appellants (including the first appellant) were effectively a single economic unit when their relationship is defined by law and each acted or exercised its rights as provided by law.

Having read the record and considered the submissions made by counsel for the appellants and the first respondent, I find that, although the appeal is premised on many grounds, only two issues arise for determination;

1. Whether or not the first respondent had locus standi to bring the application on behalf of the second respondent through derivative action or whether or not derivative action was available to the first respondent.

2. Whether or not the appellants despoiled the second respondent….,.

Whether or not the appellants despoiled the second respondent

In my view, the facts of this case disclose a classic text book case of spoliation. In the case of Botha & Anor v Barrett 1996 (2) ZLR 73 (S) GUBBAY CJ stated as follows…,:

“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.”

In order to make a determination of whether or not the second respondent was despoiled it is necessary to prove the two factors stated above.

I propose to deal with each factor in turn.

(i) Whether or not the second respondent was in peaceful possession

It was submitted, firstly, by the appellants, that the second respondent was not in peaceful possession as the Special Grants entitling it to mine had expired. The appellants' argument was that, since the possession was unlawful, it could not be peaceful.

It has been stated, in a number of cases, that issues of rights are irrelevant in spoliation proceedings. In Yeko v Oana 1973 (4) SA 735 (AD)…, it was stated that:

“The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliata has to prove, is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted.”

In the case of Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) the court remarked:

“Lawfulness of possession does not enter into it. The purpose of the mandamus 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 principles, it is necessary for the status quo ante to be restored until such time as a competent court of law assess the relative merits of the claims by each party…,. In fact, the classic generalisation is sometimes made that in respect of spoliation actions even a robber or thief is entitled to be restored possession of the stolen property.”

It is apparent from the facts of this case that the first respondent, being a 50 percent shareholder of the second respondent, was in possession of the mining fields through the second respondent. Possession, in legal terms, depicts both the mental and physical elements. It is not in dispute that the second respondent was in physical possession of the mining fields at the relevant time and was carrying out mining operations.

Secondly, the appellants also alleged that there was no evidence on the record that the appellants had committed the acts complained of.

The first appellant stated that the mere fact that he had called a press conference and stated that the possession of the respondents was unlawful does not, in itself, amount to spoliation. In any event, he argues that he was not at the scene nor was any evidence given to link him to the persons who had despoiled the respondents.

It is not in dispute that agents of the State descended on the mine premises on 22 February 2016. It was alleged, in the founding affidavit, that Zimbabwe Mining Development Corporation and Marange Resources (Private) Limited were the implementing agents of the scheme which culminated in Mbada Diamonds (Private) Limited being removed from the mining site. The evidence given by the second respondent clearly stated that the armed police were hired by the first to fourth appellants.

In my view, it would be an absurdity to find that the police, and the other officials, would have acted in the manner they did without the authorisation and knowledge of the first appellant. The acts complained of were carried out immediately after the delivery of the letter from the Permanent Secretary of the first appellant stating that the Special Grants had expired. This was immediately followed by the press conference held by the first appellant reiterating that position and giving the second respondent notice to vacate the mining claims. It seems to me that the facts, as set out, establish that the first appellant was primarily instrumental in the removal of the second respondent from the mining site.

I am satisfied that the court a quo correctly found that the second respondent was in peaceful possession before the appellants acted in common purpose in removing the second respondent from its peaceful possession of the mining site.

(ii) Whether or not the second respondent was forcibly and wrongfully deprived of possession

It is not in dispute that on 22 February 2016, after the press conference by the first appellant, armed police and officials from the Ministry of Mines moved onto the mining site which was being operated by the second respondent and forcibly shut down its operations. The security team of the second respondent was disabled and its employees were evicted from both their workstations and their on-site accommodation.

These actions were conducted without a court order.

All Mbada Diamonds (Private) Limited employees were rounded up and their communication with the outside world was cut off. They were also subsequently forced off and barred from the mining site. The officials proceeded to switch off the machines and equipment which were in operation. The armed police officers remained on site and stopped employees from accessing the plant. Mbada Diamonds (Private) Limited employees were threatened with violence and were forced to leave the mine during the evening of the 23^rd of February 2016.

The third respondent, the Commissioner General of Police, confirmed that the police had acted in the manner complained of.

In my view, in spite of the protestations of the third respondent, the police would not have acted in such a manner if they had not been called upon to do so by the appellants who stood to benefit from the unlawful removal of the second respondent.

There is no doubt in my mind that these facts show that the second respondent was removed without its consent. The removal was unlawful as it was carried out without due process.

The court a quo thus, correctly, found that the second respondent had been unlawfully removed without its consent.

It seems to me that the factors which must be proved in order to grant spoliatory relief had been met and the court a quo was correct to grant the order as prayed.

PATEL JA: I have read the separate opinions rendered by UCHENA JA and GUVAVA JA on the two issues for determination in this matter. I fully endorse and concur with their respective conclusions for the following reasons;….,.

As for the second issue revolving around the question of spoliation, I can do no more than adopt the succinct reasoning of GUVAVA JA. There can be no doubt that Mbada Diamonds (Private) Limited was in peaceful and undisturbed possession of the mining location in question at the relevant time, irrespective of the continuing validity or otherwise of its Special Grants and notwithstanding the supposed expiry of its right to carry out mining operations in that location. It is equally indisputable that the appellants, acting in concert, contrived to abruptly and unceremoniously deprive Mbada Diamonds (Private) Limited of its possession of the mining location, forcibly and wrongfully against its consent, through the agency of the Commissioner General of Police and his cohorts.

In the result, both appeals in this matter must fail. It is accordingly ordered that the appeals herein be and are hereby dismissed with costs.

[a] Summary of the dispute

The proceedings before me were an urgent chamber application for an order mandament van spolie and an interdict.

The crux of the matter was whether or not certain actions by the first respondent (the Minister of Mines and Mining Development), aided and abetted by one or other of the officials of the second (the Zimbabwe Mining Development Corporation) and third (Marange Resources (Private) Limited) respondents, and with officers of the sixth (the Commissioner-General, Zimbabwe Republic Police) respondent being the executioners, amounted to an illicit dispossession of the fifth (Mbada Diamonds (Private) Limited) respondent in respect of one of the diamond mining sites at the Chiadzwa Diamond Concessions [“Chiadzwa”].

Before deciding the main issue above, there were four points in limine….,. But before the details, the background to the whole dispute is necessary.

[b] Background to the dispute

Despite occasional attempts at splitting hairs whenever some inconvenient detail stood in the way, it was clear to me that in August 2009 the Government of Zimbabwe [“the Government”], through the first respondent [hereafter referred to as “the Minister”], went into a commercial marriage with some foreign investors. The marriage was for the purpose of exploiting diamonds in Chiadzwa for mutual benefit. The marriage was in the form of a joint venture. The marriage would be consummated through proxies. For the foreign investors, the applicant was the proxy [hereafter referred to as “Grandwell”]. For the Government, the proxy was the second respondent (the Zimbabwe Mining Development Corporation), a parastatal or statutory corporation set up in terms of its enabling Act [hereafter referred to as “the ZMDC”]. In turn, the Zimbabwe Mining Development Corporation (ZMDC) was fronted by the third respondent (Marange Resources (Private) Limited), its wholly owned subsidiary [hereafter referred to as “Marange”]. Except for the sixth respondent (the Commissioner-General, Zimbabwe Republic Police) who got joined to the proceedings in the middle, respondents 1 to 4 were effectively a single economic unit for the purposes of this marriage.

During courtship, all the necessary approvals were incepted, not least foreign exchange control authority, foreign investment licences and a Cabinet endorsement. The Cabinet endorsement, addressed to Grandwell Holdings (Private) Limited, on 10 February 2010, read like this:

“Re: IMPLEMENTATION OF THE JOINT VENTURE ARRANGEMENT FOR MARANGE DIAMONDS MINING PROJECTS: MBADA DIAMONDS PVT LTD

This is to confirm that the Government of Zimbabwe has approved, and, therefore, fully supports the joint venture project between Grandwell Holdings Ltd, a company registered in Mauritius and Marange Resources (Pvt) Ltd, a ZMDC investment vehicle, currently carrying on the business of diamond mining under the name Mbada Diamonds [Pvt] Ltd.

Appropriate Government approval was duly obtained both for the identification of investor and the subsequent joint venture agreement.”

Pre-nuptial contracts were executed. They included a joint venture agreement [“the JVA”] and a shareholders' agreement. The parties to these agreements were Marange Resources (Private) Limited, on the one hand, and Grandwell Holdings (Private) Limited on the other. The Zimbabwe Mining Development Corporation (ZMDC) ceded, for the project, some of the Special Grants, the dispensation under which the diamonds would be mined and exploited. In the joint venture agreement, the Zimbabwe Mining Development Corporation (ZMDC) and Marange Resources (Private) Limited gave certain undertakings, warranties and guarantees. Among other things, the marriage was virtually in perpetuity. Marange Resources (Private) Limited would ensure the continued validity of the Special Grants. On its part, Grandwell Holdings (Private) Limited would invest US$100 million in tranches. The day to day management of the operations and the control of the mine, the recruitment and deployment of staff, the development of business strategies, and the like, were entrusted to it.

Born out of that marriage was the fifth respondent, Mbada Diamonds (Private) Limited [hereafter referred to as “Mbada”]. It was duly incorporated as a private company, owned 50% by Grandwell Holdings (Private) Limited and 50% by Marange Resources (Private) Limited.

[c] The facts of the dispute

The marriage endured for six or seven years. Mbada Diamonds (Private) Limited was happily mining. But, apparently, the Government was brooding. Apart from its marriage with Grandwell Holdings (Private) Limited, it had entered into several others with other foreign investors. But the Government felt its partners were being unfaithful. It felt it was getting little or no remittances. To remedy this, it crafted a policy to merge all the diamond mining companies at Chiadzwa into one single entity.

The fourth respondent (the Zimbabwe Consolidated Diamond Company) was born out of this. It would be the special purpose vehicle for the new venture. All the disparate companies would take up 50% of the equity in it. The Government reserved the remaining 50% to itself.

Meetings were convened from about March 2015 over this new initiative. Grandwell Holdings (Private) Limited was apprehensive but it said it was not opposed in principle. It required a blueprint and certain other details. There were some exchanges. But, on 22 February 2016, events took a dramatic turn. Apparently, Government felt there was little or no progress towards the consolidation. On that date, it wrote to Mbada Diamonds (Private) Limited advising, among other things, that it had discovered that the Special Grants had expired, and that, with no title, Mbada Diamonds (Private) Limited had to cease all mining activities with immediate effect and vacate the mining site.

Mbada Diamonds (Private) Limited was given 90 days to remove all its equipment and other valuables. Any further access to the mining site would be upon request.

The Minister called a press conference to announce the new development. On the same day of the letter, Mbada Diamonds (Private) Limited's operations were forcibly stopped - through armed police. Processing plants were shut down. Mbada Diamonds (Private) Limited's security team was disbanded and expelled from site. Other employees were forcibly evicted both from the workstations and from their site residences. Security systems were paralysed.

It seems diamonds are to humans what fluorescent light bulbs are to flying insects. Despite the perils, they flock to them in droves.

Grandwell Holdings (Private) Limited said utter chaos ensued in the aftermath of the Government's actions. There was massive looting of both the crushed and un-crushed diamonds by artisanal miners and other characters that seemed to have had prior knowledge of the events to unfold. Equipment was vandalised. Containers were stolen. Personal belongings from private residences were looted. The loss was said to be phenomenal. It was said Government efforts to incept replacement security was woefully inadequate. The bleeding continued.

On 27 February 2016, Grandwell Holdings (Private) Limited ran to the law. It filed this application. After laying out the above background and complaining about the Government's breach of contract, it sought the following relief:

1. An order that respondents 1 to 4, their agents or anyone acting on their behalf, should vacate the mining site.

2. An order that Mbada Diamonds (Private) Limited's peaceful and undisturbed possession of the mining site be restored.

3. An interdict restraining any further interference with Mbada Diamonds (Private) Limited's operations at the mine.

4. An interdict restraining the forcible or inducement or procurement of a breach of contractual obligations….,.

The remedy of spoliation, or mandament van spolie, is designed to restore, at once, possession that has been deprived unlawfully: see SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…,. 

See also Kama Construction [Pvt] Ltd v Cold Comfort Farm Co-operative & Ors 1999 [2] ZLR 19 [SC].

The applicant must show that;

(i) He was in peaceful and undisturbed possession of the thing; and

(ii) That he was unlawfully deprived of such possession.

Kama Construction [Pvt] Ltd v Cold Comfort Farm Co-operative & Ors 1999 [2] ZLR 19 [SC] and Botha & Anor v Barrett 1996 [2] ZLR 73 [S]…,.

Spoliation is a quick remedy. Its rationale is to prevent anarchy in society: see Muller v Muller 1915 TPD 29…,.People must not resort to self-help each time they want to recover things they feel belong to them and which may be in the possession of another….,.

In Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 [1] SA 616 [W], the rationale was expressed this way…, per ZULMAN J:

“All of this of course is based upon the fundamental principle that no man is allowed to take the law into his own hands and that no one is permitted to dispossess another forcibly or wrongfully and against his consent 'of the possession of property, whether movable or immovable' and that 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.'”…,.

An order of spoliation is a final order. It does not have an interlocutory nature: see Mankowitz v Loewenthal 1982 [3] SA 758…, and SILBERBERG and SCHOEMAN, The Law of Property, 5^th ed…,.

The appellant's right to occupy the farms was overtaken by events upon the coming into effect of the Constitution of Zimbabwe Amendment (No.17) Act, 2005 which ushered in section 16B of the former Constitution. 

Resultantly, the appellants could not have been given a spoliation order in their favour against people who are legally entitled to occupy the farms.

As was held in Commercial Farmers Union & Ors v The Minister of Lands & Rural Resettlement & Ors 2010 (2) ZLR 576 (S)…, spoliation is a common law remedy which cannot override the will of Parliament and a common law remedy cannot render nugatory an Act of Parliament. 

The High Court was therefore correct in refusing to grant the spoliation order which the appellants sought.

This is a court application in which the applicants seek the following relief;

“That it be declared that;

1. The purported acquisition of Duncanston, Kopje Alleen, The Beach and Rusfontein by the 1^st respondent is invalid.

2. The occupation of Kopje Alleen, The Beach and Rusfontein by the respondents and all those claiming title through them is illegal.

That it be ordered that;

1. The respondents and all those claiming title through them be ejected from Kopje Alleen, The Beach and Rusfontein.

2. The respondents, jointly and severally, the one paying the others to be absolved, pay the costs of suit.”…,.

The background facts to this dispute are as follows;

The first and second applicants are companies which are duly registered in accordance with the laws of Zimbabwe. The third applicant became their Managing Director and principal shareholder on 16 February 1999. The third applicant avers, in the founding affidavit to this application, that he acquired the entire issued share capital of the second applicant, on 21 September 2000, from Jacobus Erasmus Junior. The relevant paperwork was only filed with the Registrar of Companies on 27 May 2002.

The first respondent is the authority that purported to acquire Kopje Alleen and The Beach farms which are situate in the district of Charter and held by the second applicant under Deed of Transfer 4913/84 and Rusfontein Farm held by JJ Erasmus that the first applicant had purchased, was occupying, but had not yet taken ownership of. The first respondent subsequently authorized the second to fourth respondents to settle on the farms.

The third applicant acquired shares in the second applicant, and Kopje Alleen and The Beach farms, and all the movable assets thereon through two agreements dated 21 September 2000. The first agreement, annexure “I' to the founding affidavit, states that 100 ordinary shares of 1USD each constituting the entire issued share capital of the second applicant were sold in the sum of USD$6,000,000= (six million dollars), to the purchaser, the second applicant. Risk and profit in the shares was to pass to the purchaser, the third applicant, on the date on which payment was made in full (clause 2). Vacant possession to the property was to be given to the third applicant on the date of transfer, provided that a Certificate of No Present Interest had been obtained from the Government without which the agreement was to have no force or effect. The title deeds and the share certificates were to be handed over to the third applicant on full payment of the purchase price or as otherwise agreed.

Annexure “J” to the founding affidavit is an Agreement of Sale entered into between Jakarta Contractors (Private) Limited, as represented by JJ Erasmus, and the third applicant, on 21 September 2000. It was for the sale of the movable assets belonging to the second applicant for the sum of USD$8,500,000= (eight million five hundred thousand dollars). Risk and profit was to pass to the third applicant upon payment of the full purchase price. On 11 September 2000, an application for a Certificate of No Present Interest was made to the then Ministry of Lands and Water Development in respect of Kopje Alleen and The Beach farms. It is common cause that on 21 September 2000, when the agreements to sell Kopje Alleen and The Beach farms were entered into, no certificate had been issued, but the agreement of sale was conditional upon such a certificate being secured.

On 25 October 2001, an agreement was entered into between the first applicant and JJ Erasmus in respect of Rusfontein Farm, situate in the district of Charter, and held under Deed of Transfer 178C/04. The first applicant was appointed as sole manager for 'managing and supervising the property as it deems fit in its sole discretion'. As security deposit for the faithful performance of its duties in terms of the agreement, the first applicant agreed to pay seven million dollars, by 31 January 2002, to the owner of Rusfontein Farm, plus an additional sum of forty thousand dollars per month from 31 September 2001 to 31 January 2002. As remuneration for its services, the first applicant was to be entitled to exclusive occupation and use of Rusfontein Farm for its benefit in any manner it deemed fit. The agreement between the parties was to 'subsist indefinitely and not be terminated by the owner'. The first applicant was granted an option to purchase the farm in the event of the farm being removed from the list of designated rural land (clause 8.1). The owner of the farm undertook to obtain a Certificate of No Present Interest in that event. It was agreed that in the event of the farm being acquired, any compensation payable to the owner in terms of the Act would be paid to the first applicant.

The third applicant attached copies of mortgage bonds to buttress the averment made that he financed the acquisition of these farms from his own resources supplemented by loans in the sum of ten million dollars (USD$10,000,000=) that he got from NMB Bank which had ballooned to USD$39,997,367=, due to high interest rates, by 9 July 2002. A mortgage bond, continuing covering security, was passed by the second applicant in favor of NMB Bank under MB692/2001, for the sum of ten million dollars…,.

Mr. Firimon Mvarume, who was employed by NMB Bank at the material time, deposed to an affidavit in which he confirmed that the third applicant obtained a facility from the Bank for the purchase of the second applicant, which owned The Beach Farm and Kopje Alleen. He confirmed that the Bank was in possession of the title deeds to the two farms, as of 6 March 2002.

Mr F. Zimuto, an Executive Director of NMB Bank, confirmed, in a letter dated 6 July 2002, that the Bank financed the third applicant to purchase Duncanston Farm which was registered in the name of the first applicant under Deed of Transfer 621/2000, and Kopje Alleen and The Beach, held under Deed of Transfer 4913/84. The Bank held title deeds to all three farms and had registered mortgage bonds over the title deeds.

The third applicant gave details of the alleged unlawful removal of all those claiming title from the applicants…,. The allegations included averments of being tortured, terrorized and kidnapped. The same allegations appear in the founding affidavit to the urgent application for an interdict which was filed by the applicants under case number HC1180A/2002. It is common cause that a provisional order was granted by this court on 10 February 2002. The terms of that provisional order…, were that Bernard Makokove, the second respondent in this application, and all those acting on his behalf or his authority be interdicted from interfering with farming operations or with rights of occupation, or harassing the applicant's workers or from removing equipment, machinery or livestock from Duncanston, Kopje Alleen and Rusfontein farms pending the finalization of the matter.

It is common cause that the first respondent applied to the Administrative Court for the confirmation of the compulsory acquisition of Kopje Alleen, The Beach, Rusfontein and Duncanston farms, which were all owned by the applicants, on 11 February 2002. It is common cause that at the time the applications for confirmation of acquisition were made, the former Vice-President of Zimbabwe, Dr. Joice Mujuru, deposed to the founding affidavits in her capacity as the Acting Minister of the acquiring authority at the time. The matters were heard by the Administrative Court on 20 February 2003. It is common cause that the Minister of Lands (first respondent) withdrew the applications before the Administrative Court, which then held that the effect of the withdrawal was to nullify the section 5 notices and section 8 orders issued in respect of the farms…,.

In conclusion, the third applicant averred that the current occupants of the farms are politically connected people who had State machinery at their disposal to cause kidnappings and to torture the applicants' employees. They were connected to the late Retired General Mujuru and former Vice-President Dr. Joice Mujuru. The applicants were forced to withdraw the High Court application in which the court had granted them a provisional interdict, and they were too scared to vindicate their property until the General died and his wife was removed from office for abuse of power….,.

The contents of the first respondent's opposing affidavit included averments that Kopje Alleen, The Beach and Rusfontein were all duly acquired in terms of the law.

It is common cause that the preliminary notice of acquisition in respect of The Beach was published under General Notice 208-2001, on 20 April 2001; Kopje Alleen, 16 November 2001 and Rusfontein on 20 October 2000 under General Notice 483G-2000; and Duncanston on 20 April 2001 under General Notice 208-2001. It is common cause that all four farms were subsequently listed in Schedule 7 of the former Constitution.

It is also common cause that the second to fourth respondents were issued with offer letters to settle on the farms at various stages after the listing of the farms in Schedule 7.

The first respondent avers that the second to fourth respondents are legally settled on the farms because they hold valid and authentic offer letters which constitute lawful authority to occupy the farms. The third applicant was charged with purchasing the farms without a Certificate of No Present Interest from the Government, contrary to the law in force at the material time. The first respondent expressed dissatisfaction with the documents produced by the applicants and contended that there was no proof that a sale had gone through or that title had passed to the applicants at the time that the first respondent acquired the farms. The first respondent contended that, even if it withdrew its applications for confirmation of the acquisition of the farms, such withdrawal was overtaken by the listing of the farms in Schedule 7 of the former Constitution. It is common cause that the applicants are currently occupying Duncanston and The Beach farms whilst the second to fourth respondents are settled on Rushfontein and Kopje Alleen farms.

On 20 February 2015, opposing papers were filed on behalf of the second to fourth respondents. The third respondent deposed to the opposing affidavit on their behalf, in which he averred that;

(i) The second to fourth respondents are lawful occupants of the farms which were gazetted and lawfully acquired by the first respondent. He attached copies of General Notices number 591 of 2001 and 449 of 2004 and copies of the respondents'' offer letters.

(ii) The allegations of intimidation, harassment and torture were denied.

(iii) It was contended that the applicants were not entitled to the declaratory orders that they seek for the added reason that the farms in question were lawfully acquired pursuant to constitutional Amendment Number 17 of 2005.

The applicants' response to the second to fourth respondents' contentions was to reiterate their position that the purported acquisition of the farms was and remains illegal, and that the respondents resorted to self-help and should be removed from the farms….,.

The question for determination is, therefore, whether the state of facts on the existence of which section 16B(2)(a) of the former Constitution provided that the acquisition of agricultural land must depend, existed, in the circumstances of this case….,.

(c) The requirements of spoliation

The law that applies to the remedy of mandament van spolie is settled. In Nino Bonino v Delange 1906 TS 20, the general principle was stated by INNES CJ 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 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.”

In Dianas Farm (Private) Limited v Madondo N.O. & Anor 1998 (2) ZLR 410…, the court set out the authorities as follows:

“The law relating to the basis on which a mandament van spolie will be granted is well settled. In Davis v Davis 1990 (2) ZLR 136 (H)…, ADAM J quoted with approval the following statement by HERBSTEIN J in Kramer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C)….,:

'…, 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.'

The onus is on the applicant to prove the two essential elements set out above.

Part of the second element is lack of consent. See Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79-80 and Bennett Pringle (Pvt) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) at 233G-H.”

The founding affidavit is replete with proof, on a balance of probabilities, that the applicants were in peaceful and undisturbed possession of the farms. We must determine whether the first respondent and/or any of the second to fourth respondents deprived the applicants of possession forcibly and wrongfully.

The averments made by the applicants of threats, intimidation, harassment and torture were buttressed by documentary evidence of medical treatment. They were evaluated by this court and an interim interdict granted in 2002. The interim interdict was withdrawn by the applicants before its confirmation. This current application was not served on Retired General Mujuru, who is deceased, or on his wife, the former Vice President of Zimbabwe. They did not get an opportunity to respond to the allegations that they orchestrated the forcible removal of the applicants from their farms for political reasons. The first respondent has not responded to those allegations, and, indeed cannot be expected to do so on behalf of the former Vice-President and her deceased husband. The second to fourth respondents have denied taking part in any unlawful or forcible removal of the applicants from their farms. There is no admissible evidence on record to controvert their denial.

The requirements of spoliation are not proved in the papers filed of record.

The issue that remains to be determined is whether the first respondent, by causing the listing of the applicants' farms in Schedule 7 of the former Constitution, did so wrongfully, such as to constitute dispossession of the applicants of their property and to entitle them to a spoliation order.

The evidence, and the law…, will show that, in this court's view, the first respondent did not unlawfully or wrongfully or forcibly dispossess the applicants of their farms. The court is not persuaded, in light of the fact that the former Vice President of Zimbabwe and the estate of her late husband were not cited as parties to these proceedings or served with a copy of this application that the allegations against them are properly before this court. Whatever the reason for the applicants' withdrawal of their interim interdict at the material time (there is insufficient valid evidence for the court to make a finding on a balance of probabilities), in my view, it would have been best to evaluate the allegations of intimidation and torture at the relevant time, and on notice to those accused. Attempting to rehash the allegations ten years later is a bold move, which unfortunately is not supported by the evidence which is properly before the court…,.

Having been found to have fallen short of establishing the requirements of spoliation, the applicants are not entitled to restoration of the status quo ante, especially ten years later, as spoliation is, by its nature, a remedy which must be granted, as a matter of urgency, to discourage litigants from taking the law into their own hands.

This is an appeal against the whole judgment of the High Court sitting at Harare in which the court granted a provisional order in favour of the respondent. The essence of the order was to interdict the appellant and his agents, and all those occupying the farm through him, from interfering with farming activities at Plot 1 of Alpha of Sandringham in Mazowe District of Mashonaland Central Province. The matter was brought on a certificate of urgency.

The background to the matter is that the first respondent is a holder of an offer letter in respect of land described as Subdivision 1 of the Remaining Extent of Sandringham in Mazowe measuring 162.40 hectares in extent (the farm). The offer letter is dated 6 April 2017 and was produced as evidence by the respondent. Despite the date on the offer letter, the first respondent avers that she took occupation of the farm in 2000. She produced documents which establish her interactions with various service providers which date back to 2005.

The appellant occupies the same farm.

He avers that he was offered the farm in 2013 and took occupancy. At the time, the farm was bush and he developed it to where it is today. He attached evidence of what he said were substantial improvements that he made at the farm. He avers that his offer letter was processed, and, at one point, reflected in the second respondent's system but was later lost.

As they were co-existing on the farm, the first respondent averred that the appellant had, on 15 July 2017, started tilling on the first respondent's winter ploughed field where she intended to plant a cabbage crop on 1 August 2017. Despite warnings to stop such conduct, the appellant persisted.

The first respondent then approached the court a quo, on a certificate of urgency, seeking an interdict. She contended that she would suffer irreparable losses if she were unable to plant her cabbage seedlings which were ready.

The application was opposed by the appellant. He did not file opposing papers but made oral submissions before the court a quo. Having found merit in the respondent's case, the court a quo granted the provisional order. Aggrieved by the decision, the appellant filed the present appeal. His grounds of appeal are as follows:

1. The High Court erred in dismissing an objection to the validity of a special power of attorney given by the first respondent to Davie Fukwa Mutingwende authorizing him to institute the legal proceedings which was not notarized, it having been issued in the United Kingdom.

2. The High Court further grossly erred in finding that the matter before it was urgent when it was apparent that the appellant had been in occupation of Subdivision 1 of the Constancia of Sandringham Farm for a long period of time carrying on activities known to the first respondent and any other persons.

3. The High Court further erred in granting an interdict without first determining whether Subdivision 1 of the Constancia of Sandringham Farm, occupied by the appellant, was the same property as Lot 1 of Alpha of Sandringham Farm claimed by the first respondent.

4. The High Court further consequently erred in finding that the first respondent had established a final right entitling her to the grant of an interdict in the circumstances….,.

GROUND 3 AND 4

Counsel for the appellant argued that the primary question which the court a quo needed to resolve, but however failed to do, was whether the first respondent's offer letter related to the land which was occupied by the appellant. He contended that the High Court simply did not address its mind to this issue.

Contrary to this view, the court a quo addressed the issue and correctly so, at pages 3-4, where it made the following findings:-

“From the submission made on the matter, the 1^st respondent did not deny that he is occupying the same land allocated to the applicant. Neither did he deny locking the applicant's employees nor re-tilling the applicant's land. He has no offer letter, permit nor a lease to show viz the land he occupies.”…,.

I find no fault in the above reasoning by the court a quo. The appellant conceded that he was on the same land as that allocated to the first respondent. The court then found, and properly so, that the first respondent had a clear right in the land in question and proceeded to grant the interdict. The above reasoning cannot be faulted.

In conclusion, I find that the appeal lacks merit and must be dismissed. I therefore make the following order;

1. The appeal be and is hereby dismissed.

2. The appellant is to pay the first respondent's costs.

The applicants complain that the first respondent has been interfering with their rights, has ploughed their fields, and repeatedly threatened them and their employees using his office as a member of the Central Intelligence Organisation (CIO) to instil fear in them.

As to why Central Intelligence Organisation (CIO) members think they should use their office to intimidate law-abiding citizens and to be a law unto themselves is just about one mystery which is difficult to fathom. There is a pressing need for the authorities to reign in these people and remind them that they cannot act with impunity in a constitutional democracy like Zimbabwe. Their lumpen behaviour cannot be allowed to perpetuate.

How can a person who has been allocated their own piece of land go on to spread his tentacles onto other people's land without any regard to the law?

The applicant filed what he termed an “Ex-Parte Chamber Application” on 24 June 2016 praying for a spoliation order on the basis that the respondent has unlawfully occupied Plot number 14 and erected a fence on the boundary of the said plot.

The facts are that the applicant was offered subdivision 13 of Richardson Farm in Umguza District of Matebeleland North Province by the Minister of State for National Security, Lands, Land Reform and Resettlement in the President's Office on 12 January 2009. The farm is approximately 300 hectares in extent. The respondent meanwhile was offered, by the same authority, subdivision 14 of Richardson A in Umguza District of Matebeleland North Province for agricultural purposes. The farm is approximately 100 hectares in extent.

However, the applicant, in his founding affidavit, states that he was allocated a plot in the year 2000 at Richardson Farm. He claims he obtained an offer letter which he marked “A” but in actual fact he did not attach any Annexure A. He further claimed that the same plot was increased from “100 hectares to 300 hectares” in 2005 and that this plot is known as “Plot number 14 on paper but 9 on the ground.” According to him, the respondent “voluntarily moved out of his Plot 14 on paper but number 9 on the ground.”

The applicant alleged that the respondent came to the farm on an unspecified date and dumped old tyres on the applicant's yard. Later, it is alleged the respondent erected a fence around “a portion of the farm” effectively cordoning off this area. Finally, the applicant contended that he firstly was in peaceful and undisturbed possession of the property, and, secondly, that the respondent dispossessed him forcibly or wrongfully of the property.

The respondent, on the other hand, opposed the application on the following grounds:

(a) The matter is not urgent in that the applicant does not state, in his founding affidavit, when he was allegedly despoiled of possession of Plot 14. The certificate of urgency, it was contended, has been affected by the same malady.

(b) On the merits, it was argued that, firstly, the applicant was never in peaceful and undisturbed possession of the farm, and, secondly, that logically flowing from the first point, the respondent did not deprive the applicant of the possession forcibly on wrongfully in that the respondent has always been in occupation of his farm despite the applicant's incessant and unjustified claims of ownership of subdivision 14.

There are two issues for consideration;

(i) The first is whether this application is urgent.

(ii) The second is whether the applicant has satisfied the requirements of a spoliation order.

The applicants reside at Matankeni, Zwehamba and Mahetshe Villages, under Chief Nyangazonke communal hands. The applicants own homesteads in an area adjacent to land belonging to the first respondent. Their farming and grazing area naturally borders the land owned by the first respondent.

The applicants complain that the first respondent is encroaching on their farming and grazing land.

This is denied by the first respondent who avers that none of the applicants' homesteads have been destroyed or affected by the first respondent.

The respondents contend that the matter that has been brought under a certificate of urgency is not urgent at all and there are material disputes of facts which can only be resolved in a trial.

The applicants seek an interim order in the following terms:

“1. That pending confirmation or discharge of this provisional order applicant be and is hereby ordered to immediately cease evicting, demolishing and/or interfering with the applicants' homesteads, farming and grazing land, and to immediately restore applicants to their occupation and possession of their homesteads, farming, and grazing land.

2. In the event of the respondents failing to restore applicants to their occupation and possession of their homesteads, farming, and grazing land, the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorized to restore applicants to occupation and possession of their homesteads, farming and grazing land….,.

On the merits

Assuming that the applicants were to establish that the matter is urgent and that there are no material disputes of fact, the applicants have not, in my view, established that they are entitled to the relief they seek.

The applicants have not proved the requirements for an interdict. The applicants should, at the very least, show a prima facie right. They have not done so.

Their allegation of occupation is not supported on the papers placed before the court. The applicants have not established that the first respondent has encroached on to the land they occupy. The applicants must allege and prove the nature of their title or right therein. Bold and unsubstantiated allegations of evictions and demolitions of property have only been made. The applicants have not shown injury actually committed or reasonably apprehended. Their photographs show no injury committed at all.

The requirements for the granting of an interdict are well established in our law. See the cases of Setlego v Setlego 1914 AD and Flame Lily Investment Company v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 378.

In the result, I am satisfied that this application is ill-conceived and is not well grounded.

I accordingly dismiss the application with costs.

The law supposes that an order of spoliation is a final order which should be granted only on the basis of a clear right proved on a balance of probabilities….,.

The remedy of spoliation seeks to protect the right of possession: see SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…,.; Kama Construction [Pvt] Ltd v Cold Comfort Farm Co-operative & Ors 1999 [2] ZLR 19 [SC]; Botha & Anor v Barrett 1996 [2] ZLR 73 [S]…,.; Muller v Muller 1915 TPD 29…,.; Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 [1] SA 616 [W]; and Grandwell Holdings [Private] Limited v Minister of Mines and Mining Development & Ors HH193-16.

On one occasion when transfer was taking long, the plaintiff averred that she went to the lawyers' offices with someone from the Office of the President and Cabinet, who, during the course of talking to Evelyn Saidi, managed to get into his possession the Deed of Transfer in respect of the property and advised Evelyn that he would not give this back as the plaintiff was entitled to transfer of the property….,.

There is one other administrative issue that remains outstanding. It is the disposal of the original Deed of Transfer that was adduced into evidence by the plaintiff. Without in any way commenting on the manner in which she obtained the Deed, it is my order that the Deed be returned to the Deeds Registry as the legal custodian of all original copies of such documents. It is from this office that the parties may seek for copies in accordance with the law, and, after having set out their respective rights to copies of the Deed….,.

1….,.

2….,.

3. The Registrar of this court is hereby directed to return into the safe custody of the Deeds Registry, Exhibit No.3 being the original Deed of Transfer No. 4530/76 in respect of Stand 12886 Salisbury Township of Salisbury Township Lands.

On 13 June 2014 the applicant filed an urgent chamber application for an order of spoliation. The order was sought in respect of a farm called Glen Avilin Estate (hereafter referred to as “the farm”).

What triggered the application were the events that had occurred on the farm on 12 June 2014.

The applicant's version of events was set out in its founding papers. Except for the fourth respondent, all the others filed opposing affidavits. I heard the application on 20 June 2014. I dismissed it with costs for lack of merit. The applicant has now sought written reasons for my decision.

The facts presented by the applicant in its founding papers were these.

It is a private voluntary organisation. It looks after thousands of orphans and other vulnerable children. For its operations, it used to rely mainly on donor support. However, that support had dwindled. It now relied increasingly on farming and other income-generating activities being carried out on the farm. The applicant had been on the farm since 1983. However, on 12 June 2014, officials of respondents 1, 2 and 3 called the applicant's director, one Gary Birditt (hereafter referred to as “Mr Birditt”) to come to the farm. He came in the company of the applicant's counsel, Mr Mureriwa.

According to Mr Birditt, it was apparent the respondents were planning a major event. There were too many Government officials. Armed personnel were also present. A shed had been erected. Chairs and tables had been arranged. On enquiry, Mr Birditt had been advised that the farm had been allocated by Government to the first respondent in terms of an offer letter. The planned event was to officially hand over the farm to the first respondent.

Mr Birditt and Mr Mureriwa had protested. They said the intended takeover would be illegal. However, the respondents had remained resolute. The ceremony would proceed. Mr Birditt and the lawyer had left.

On the following day, the application had been filed.

The order of spoliation was being sought on the basis that at all relevant times the applicant had been in peaceful and undisturbed possession of the farm but that on 12 June 2014 the respondents had forcibly taken it over, leaving the applicant's employees and students on vocational training hopelessly wandering about. It was also alleged that the applicant's operations had ceased owing to the takeover.

In their opposing affidavits the respondents strenuously denied that they had despoiled the applicant. They maintained that the events of 12 June 2014 had merely been a once-off ceremony for the purpose of handing over the ownership of the farm to the first respondent symbolically. Mr Birditt had been invited to the ceremony. He had come with his lawyer. However, both had left before the proceedings had even started. The respondents said it had been a peaceful ceremony. No force had been used or shown. Everybody had left after the proceedings had been concluded. The temporary shelter had been dismantled. The respondents said the farm had been compulsorily acquired by Government way back in May 2002 in terms of the land reform programme. Over the years it had become derelict due to neglect. The applicant's donors had dwindled. The farm had become prone to illegal land invaders from the surrounding villages. On 10 February 2014 Government had officially allocated the farm to the first respondent. However, neither Government nor the first respondent had yet taken occupation. It was said an application to evict the applicant from the farm was pending. But guards had been posted to the farm for security. They had been deployed in February 2014. The applicant had raised no issue over the presence of the guards. They interfered with no one.

At the hearing more facts came to light.

The applicant conceded the presence of the respondents' security guards on the farm since February 2014. It said at any given time there would be two guards around. The applicant also conceded that other than the security guards none of the respondents' officials had remained on the farm.

During submissions, counsel for the applicant said the application for spoliation was in fact predicated on the presence of those guards….,.

On the merits, it seemed true that counsel for the applicant's sense of judgment had somewhat been impaired. He had challenged the presence of the respondents' representatives on the farm on the day in question. The farm is somewhere in Shamva, some 10km away from Bindura. On being fobbed off by the respondents' representatives, Mr Mureriwa had rushed back to his offices in Harare, more than 80km away. By the following day the urgent chamber application was all ready and complete. It was filed on 13 June 2014.

In my view, the application was completely devoid of merit.

No wonder during the proceedings the applicant shifted ground and sought to rely on facts that had not formed part of the application. It sought to rely on the presence of the security guards on the farm to found an act of spoliation.

The remedy of spoliation or mandament van spolie is designed to restore, at once, possession that has been deprived unlawfully: see SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…,. See also Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-operative & Ors 1999 (2) ZLR 19 (SC). The applicant must show that he was in peaceful and undisturbed possession of the thing and that he was unlawfully deprived of such possession: Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-operative & Ors 1999 (2) ZLR 19 (SC) and Botha & Anor v Barrett 1996 (2) ZLR 73 (S)…,.

Spoliation is a quick remedy. Its rationale is to prevent anarchy in society: see Muller v Muller 1915 TPD 29…,. People must not resort to self-help each time they want to recover things they feel belong to them and which may be in the possession of another.

In Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (W), the rationale was expressed this way…, per ZULMAN J;

“All of this, of course, is based upon the fundamental principle that no man is allowed to take the law into his own hands and that no one is permitted to dispossess another forcibly or wrongfully and against his consent 'of the possession of property, whether movable or immovable' and that 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.'”

Spoliation is aimed only at the recovery of lost possession. It does not lie where there has been a mere disturbance of possession or a threat that possession will be disturbed; SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…,. It implies a deprivation and not a mere disturbance of possession; SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…,. See also Van Rooyen en 'n Ander v Burger 1960 (4) SA 356 (O)…,.

I am alive to the fact that an illicit dispossession of a right, whether corporeal or incorporeal, can be protected by an order mandament van spolie: Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-operative & Ors 1999 (2) ZLR 19 (SC)…,. What is protected is the quasi-possession of a movable or immovable incorporeal. Thus, in Sebastian & Ors v Malelane Irrigation Board 1950 (2) SA 690 (T) a spoliation order was granted for the unlawful interruption of water supplies. In Naidoo v Moodley 1982 (4) SA (T) a spoliation order was granted for the interruption of the flow of electricity. In Beukes v Crous 1975 (4) SA 215 (NC) and Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A) orders were granted to restore the right of passage, i.e. a servitude. In Tigon Ltd v Bestyet Investments (Pty) Ltd 2001 (4) SA 634 (N) an order was granted restoring the name of a shareholder of a company back in the share register where such name had been removed unilaterally. Finally, in the case of Xsimet (Pty) Ltd v Telkom SA Ltd 2002 (3) SA 629 (C) an order was granted to restore the applicant's telephone connectivity and bandwidth system that the respondent, the service provider, had unlawfully terminated.

In casu, the applicant was neither despoiled of the physical possession of the farm nor deprived of its right of possession of it. The once-off and brief presence of the respondents on the farm, on 12 June 2014, was to handover to the first respondent, symbolically, the ownership, not possession, of the farm. The applicant's physical or mental possession of the farm was not taken away. The applicant was still on the farm. On a balance of probabilities I chose to believe the respondents' version of events. Once the symbolical handover was over the respondents had left. At worst, the ceremony was a disturbance of possession rather than a deprivation of it.

Spoliation is not available in such circumstances….,.

But, as it prepared its papers for the order of spoliation, it seems the applicant was somewhat confused on the choice of remedy.

After laying out the foundation for a spoliation order it also went on to lay out some foundation for an interdict. Among other things, the applicant alleged a prima facie right. It alleged an actual harm suffered; the absence of no other effective remedy; the balance of convenience being in its favour and the fear of an irreparable harm. All these are factors for an interlocutory interdict. In the result, the applicant sought a provisional order the draft of which was clearly a hybrid. The final order sought an interdict. The provisional order sought an order of spoliation.

In my view, the applicant's approach was defective. An order of spoliation is a final order. It does not have an interlocutory nature: see Mankowitz v Loewenthal 1982 (3) SA 758…,.

The two elements of spoliation, namely, peaceful and undisturbed possession and the act of spoliation, have to be proved on a balance of probabilities. On this point, the learned authors SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…, say:

“These two facts have to be proved on a balance of probabilities: a prima facie case will not suffice, the mandament van spolie being a final order.”

In a footnote, and after citing several case authorities on the point, the learned authors say:

“Kleyn 1989 De Jure 154 emphasises this aspect very clearly in his discussion of the Aussenkehr case. The mandament is a unique remedy that falls within a category of its own and should not be confused with an interdict. The most important difference between the mandament and an interdict is that the merits are not considered where the mandament is claimed, whereas the merits are extremely important when an interdict is sought in that a clear right has to be established.”

It is for the above reasons that I dismissed the application.