MAWADZE J: This is an urgent chamber application for a
provisional order whose interim relief sought is couched as follows:
"INTERIM RELIEF GRANTED
Pending the confirmation of the
provisional order, it is ordered that:-
(a)
The respondent be and is hereby ordered
to release and return to the applicant through his legal practitioners of
record, a Land Rover Discovery Tdi Registration No. AAQ 5444 not later than 48
hours from the granting of this order.
(b)
The respondent be and is hereby ordered
to release and return to the applicant through its legal practitioners of
record, all property listed on paragraph 20 of the applicant's founding
affidavit.
(c)
The respondent and those who may act on
her behalf are interdicted from causing threats of whatsoever nature and harassment
on the person of the applicant."
I find the
provisions of paragraph (c) above to be vague and incomprehensible. Even if I was to grant the interim relief I
would on that basis decline to grant the interim relief sought in paragraph
(c).
The terms of the
final order are construed as follows:-
"TERMS OF FINAL ORDER SOUGHT
1. The
respondent be ordered not to interfere with the applicant's possession of a
Land Rover Tdi vehicle registration number AAQ 5444 and all property listed on
paragraph 20 of applicant's founding affidavit (sic).
2. The
respondent and all those who may act through her be barred from intimidating or
causing threats to the person of the applicant in any way whatsoever and at any
place.
3. The
respondent is ordered to pay costs of suit on higher scale."
Background facts
The
facts giving rise to the application are difficult even to summarise on account
of
the very different versions by the
parties in their respective affidavits.
The parties are
only agreed as to how they met and that they are legally married to each
other. The applicant has now moved out
of the matrimonial house number 16924 Zengeza 3 Chitungwiza and is now residing
at No 8 Mukoko Road, Zengeza 1, Chitungwiza.
The applicant does not explain the owner of house number 8 Mukoko Road,
Zengeza I, Chitungwiza nor did he explain whom he stays with at this
house. This became important in view of
the fact that the applicant alleges the respondent visited him on 11 January
2012 which is the basis for his complaint, a fact hotly disputed by the
respondent. The respondent works at
Zengeza 7 Primary School in Chitungwiza.
It is not clear what the applicant does but he was unable to attend this
hearing as he was said to be away in Sudan.
It
is common cause that the parties met each other in early 2011 as the applicant
was looking for rented accommodation at the respondent's house number 16924
Zengeza 3 Chitungwiza. The applicant
initially left his clothes for safe keeping with the respondent and they began
to constantly communicate until they fell in love in April 2011. The applicant then moved on to stay with the
respondent and her two children. According to the applicant he moved in with
his personal clothes, 21 inch TV set, a two door upright refrigerator,
therapedic bed and computer trolley.
According to the respondent, the applicant moved in with all the
property mentioned except the fridge and the computer trolley which she says
were bought after solemnization of the marriage. Apart from this the parties are not agreed at
all as to what transpired thereafter. It
is important to outline in detail the contrasting versions of events given by the
applicant and the respondent giving rise to this application.
The
parties are not even agreed as to circumstances leading to the solemnisation of
their marriage. According to the
applicant after staying with the respondent few months and in June 2011 the
respondent exerted upon him tremendous pressure coercing him to pay the pride
price (lobola) but the applicant was reluctant.
The applicant said in July 2011 the respondent took her own money and
paid her own bride price to her parents to cement a customary law union between
the two! The applicant does not explain
how the respondent was able to achieve this feat. On the other hand in her opposing affidavit
the respondent alleges that it is the applicant who pressurised her into the
marriage saying he wanted to go to his work place in Sudan and would not risk
leaving without marrying her as other men would snatch her. In fact the respondent said the applicant
said he had only two weeks to solemnise the marriage before leaving for Sudan
but she later realised this was a ruse as the applicant did not go to Sudan after marrying her. The respondent's version is corroborated by
one Mercy Muramani in her supporting affidavit and she witnessed the marriage
between the applicant and the respondent.
This is also confirmed by one Venna Chifamba an elder in ZAOGA Church who
acted as a go between on behalf of the parties in lobola negotiations and he
disputes the applicant's version.
On
7 July 2011 the applicant said the respondent duped him into solemnisation of
the marriage under the guise of a surprise party. The applicant said few people were gathered
ostensibly for a surprise party for the applicant and to his utter dismay and
helplessness a marriage officer had been stealthly brought and the respondent happily
announced that the two were to tie the knot and sign the marriage register after
taking marriage vows. The applicant said
he was virtually snared into the marriage as it were and could not do anything
about it. This was dismissed by the
respondent as a figment of the applicant's imagination as nothing of that sort
happened, in fact the respondent said the applicant pressurised her to
solemnise the marriage and a proper marriage ceremony presided over by a
marriage officer and witnessed by Mercy Marumani and her husband was held at
the matrimonial home. Mercy Marumani in
her supporting affidavit said it is the applicant and the respondent who
approached her together in June 2011 and requested her and her husband to be
witnesses to their civil marriage and that the applicant requested church
elders of ZAOGA Church to facilitate solemnisation of the marriage which was
done in July 2011 with the applicant's full consent and participation.
As
already stated the parties entered into a civil marriage [Cap 5:11] on 11 July 2011 and the marriage still subsists. No children have been born out of this union.
The
applicant in his founding affidavit stated that within a month of the
solemnisation of the marriage they faced serious marital problems as the respondent
denied him conjugal rights alleging she was haunted by the spirit of her
departed husband and they would always fight for one reason or another. He said towards the christmas holidays in
December 2011 the marital relationship had broken down and he was also fed
up. Applicant said he was ordered by the
respondent to pack his belongings and leave within 24 hours. His clothes were thrown out of the house
hence he left and is now staying at number 8 Mukoko Road in Zengeza 1.
The
respondent's version is that what caused the marital problems is that the
applicant was cheating on her and would come home in the early hours of the
morning. The respondent in her opposing
affidavit said the applicant was very abusive and would severely assault her.
She said the applicant also caused her to dispose of some property she had
acquired with her late husband, that is a fridge, kitchen unit and stove and
they shared the cash. She dismissed as
totally false that she was haunted by her late husband's spirit but was being
tormented by the applicant and that counselling at church did not yield
positive results. They however bought a
new fridge and the items which are being claimed by applicant in this
application as his property forcibly taken away from him. Contrary to the applicant's averements, the
respondent said the applicant left the matrimonial house in October 2011 not in
December 2011 on his own accord and did not collect all his personal
belongings. By then the respondent said
she had been persuaded by the applicant to sell a motor vehicle from the
previous marriage which motor vehicle the applicant had promised to replace.
The
applicant stated that after he moved out of the matrimonial home the respondent
started to send unknown people to threaten him including an unidentified uncle
of respondent who allegedly works in the Prime Minister's office. He said he was told to pay compensation of
about US$15 000 to the respondent and
that when he refused he was told he would be caused to disappear. As a result of these threats he filed for
divorce in this court and attached summons issued out of this court on 10
January 2012 wherein the applicant prays for a decree of divorce and an order
of costs only. The applicant said the
respondent was incensed by the action he took and on 11 January her unnamed
uncle threatened the applicant with death for refusing to pay compensation and
betraying the respondent. That same day
11 January 2012 late at night he said
the respondent in the company of her unnamed uncle and a group of men (whose
number is not stated) came to the applicant's residence and demanded US$15 000
as compensation for divorce. The
applicant said he had no such cash. It
is this visit, according to the applicant which triggered this application.
The
applicant said after he failed to raise the US$15 000 demanded, the respondent
and the men in her company who were driving a Toyota T35 truck forcibly took
the following property from his house; Nokia N900 handset, 2 door upright
fridge, 21 inch colour TV, therapedic bed, computer trolley, 2 cover beds, 5
bed sheets, three blankets, 3 monarch bags full of the applicant's personal
clothes. All this property was loaded in
the T35 Mazda truck. The applicant said
the respondent took his car keys for the motor vehicle Land Rover Discovery
number AAQ 5444 and forcibly drove away the motor vehicle. The applicant said he reported the matter to
St Marys Police Station but does not specify as when he made the report and to
whom. The applicant said he was left
only with the clothing he was wearing and the Police who called the respondent
and her unnamed uncle were unhelpful as they accepted the unnamed uncle's words
that the dispute between the parties was a traditional family dispute to be
resolved at family level hence they were dismissed by the Police. The applicant said the respondent demanded to
be paid US$15 000 before she could return the applicant's property and the
motor vehicle and threatened to sell the property within 7 days if the
applicant failed to comply (which was by 18 January 2012). The applicant said he was surprised to see
his motor vehicle on sale at the Unit C junction car sale. He did not disclose the date but the
applicant filed this urgent chamber application on16 January 2012.
The
supporting affidavits for Nephas Chiyambuwa who regards the applicant as his
uncle and Ishmael Tsaga who claims to be the applicant's landlord of No 8
Mukoko Road Zengeza 1 Chitungwiza filed by the applicant on 20 January 2012 after the
initial hearing on 18 January 2012 are unhelpful and no probative value can be
placed on them. All what Nephas
Chiyambiwa attests to in the supporting affidavit is what he was told by the
applicant (see paragraphs 4,5,6,7, 8, 10, 11).
In fact Nephas Chiyambiwa did not witness crucial events of the night of
11 January 2012. Ishmael Tsaga proved
during the hearing to be untruthful in averements made in his affidavit. It turned out that he lied that he is the
applicant's landlord (see para 1).
Ishmael Tsaga admitted that house no 8 Mukoko road Zengeza 1 Chitungwiza
belongs to the applicant's parents. It
also emerged that the applicant's mother, the applicant's son Edward and the
applicant's young brother Prince stay at this house. The applicant makes no reference to these
people neither does he mention in his affidavit to be a tenant of Ishmael Tsaga. This puts into issue and doubt the
truthfulness of all what Ishmael Tsaga said he witnessed on the night of 11
January 2012 at number 8 Mukoko Road, Zengeza I, Chitungwiza as it was disputed
that he does not even stay at this house.
The
respondent in her opposing affidavit dismissed as false events alleged to have
happened on the night of 11 January 2012 at no 8 Mukoko Road Zengeza 1. In fact the respondent denied ever visiting
the applicant at his place on the night in question and denied taking the motor
vehicle and property alleged. The
respondent's version of events is that after the applicant left the matrimonial
home in October 2011, she fell seriously ill and was admitted in the intensive
care unit at Southmed Hospital. She had
to be operated on and had a miscarriage.
She dismissed harassing the applicant in any manner or sending people to
harass him. She challenged the applicant
to name the so called uncle of the respondent from the Prime Minister's
office. She accused the applicant of
possessing a super active imaginative mind as he simply fabricated events which
never happened.
As
regards the property mentioned in para 20 of the applicant's founding affidavit
the respondent said save for 5 bed sheets and 3 blankets all the property is at
her house as the applicant left the property in the house when he deserted the
matrimonial house.
In
relation to the Discovery Land Rover motor vehicle the respondent states that
the motor vehicle belongs to the applicant but denied that the applicant was
keeping the motor vehicle at his work place and only took it to his new
residence after separating from the respondent.
The respondent said soon after she married the applicant and after
selling her car the applicant gave her the Land Rover Discovery motor vehicle
to use in July 2011 and that she has been in possession of that motor vehicle
since then to date together with the registration book. In fact she said when the applicant left the
matrimonial home he did not demand or take the motor vehicle in issue. She said the applicant and the respondent had
agreed to dispose of the motor vehicle and buy another motor vehicle for the
respondent with part of the proceeds of the sale. The respondent said the applicant's uncle at
one stage took the motor vehicle in December 2011 purportedly to find a buyer
but returned it to her after failing to secure one. The respondent said the applicant and his
uncle visited her at night on 27 December 2011 ostensibly to collect the
applicant's clothes but they did not do so as it was late. In fact the respondent said on 8 January 2012
he gave the applicant's uncle the motor vehicle to go to a church function at
Mt Darwin and he returned it to her as she was at all material time the
custodian of the motor vehicle. The
respondent said in fact the applicant made a police report at St Marys Police
Station on 29 December 2011 of theft of the same motor vehicle against her
which report was recorded on 29 December 2011 at 1125 hours CR10/01/12. The respondent said she had to go with the
motor vehicle in issue to the police on 6 January 2012 and explained herself to
Assistant Inspector Mubaira and Cst Mukwekwe who allowed her to retain the
motor vehicle thus dismissing the false report of theft by the applicant. She denied ever putting the motor vehicle on
sale and challenges the applicant to name the agents she had given the motor
vehicle.
The
respondent's allegations that she was at all material times in possession of
the Land Rover Discovery motor vehicle is supported by Venna Chifamba
(paragraph 9 and 12 of his supporting affidavit and the respondent's workmate
Odrix Mhiji (paragraphs 4,5 and 6 of his supporting affidavit).
The
applicant in paragraph 26 and 27 of his founding affidavit summarises the basis
of this application as follows;
"26. I am advised which advise I accept that the
respondent and her relatives had no right to despoil of my property and attach
same as if there are the court of law and the messenger of court themselves. There is no legal justification of the
respondent's conduct.
27. I am now leaving in fear of the respondent
and her relatives and there is clearly great risk that my property will be
disposed of if this matter is not dealt with on an urgent basis"
On
the other hand the respondent dismisses the alleged events of 11 January 2012
and
denies even visiting the applicant
at his residence. According to the respondent
the property listed in para 20 of the applicant's founding affidavit has always
been in her possession except the 5 bed sheets and 3 blankets at No 16924
Zengeza 3 Chitungwiza. The respondent
contends that the applicant was never despoiled of the motor vehicle in issue Land
Rover Discovery but the applicant willingly gave the respondent the motor
vehicle as his lawfully wedded wife in June or July 2011 as the applicant had
caused the respondent to dispose of her own motor vehicle from her previous
marriage. It is the respondent's contention that up to the time of hearing of
this matter she had not been served with the summons for divorce. The
respondent believes the applicant is desperately trying to get access to
matrimonial property without going through the due process of divorce which may
entail sharing of this property. The
respondent indicated that her marriage to the applicant has irretrievably
broken down and she is more than willing to consent to divorce as long as the
applicant takes proper legal channels rather than making false reports of car
theft and being despoiled.
THE LEGAL POSITION
This
is an application for a spoliation order.
The wise words of INNES CJ in the classic case of Nino Boninov De Lange (1906 TS 120 at 122) enunciates the
principles of a spoliation order as follows;
"it
is a fundamental principle that no man is allowed to take the law into his own
hands, no one is permitted to dispossess another forcibly or wrongfully and
against his consent of 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."
The
legal requirements for the relief sought by the applicant are also well laid
out in the case of Chisveto v Minister of
Local Government and Town Planning 1984(1) ZLR 248 of 250 A-E.
"It
is a well-recognised principle that in spoliation proceedings it need only be
proved that the applicant was in possession of something and there was forcible
or wrongful interference with his possession of that thing.......that spoliatus ante omnia restituendus est. Lawful possession
does not enter into it. The purpose of 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 status quo
ante to be restored until such time as a competent court of law assesses
the relative merits of claims of each party.
Thus it is my view that the lawfulness or otherwise of the applicant's
possession of property in question does not fall for consideration at all."
See also : Chikafu
v Dodhill Pvt Ltd and Ors SC 28/09; Harland
Brothers (Pvt) Ltd and Anor v Minister of Lands and Rural Resettlement and Anor
HH6/10 at p4 of the cyclostyled judgment; Botha
& Anor v Barret 1996 (2) ZLR 73 (SC); Mutsotso & Ors vs
Commissioner of Police & Anor 1993 (2) ZLR 329.
See also Almer's
Precedents of Pleadings, 7th ed pp 357 - 358 wherein the learned
authors discuss the requirements of a spoliation order and that generally it is
rarely claimed by way of action by virtue of the urgency that usually
accompanies it.
In
casu the applicant has to show and
prove basically two issues; that he was
in peaceful and undisturbed possession of the motor vehicle Land Rover
Discovery together with property listed in para 20 of his founding affidavit
and secondly that the respondent on 11 January 2012 deprived him of the
possession forcibly or wrongfully against his consent. In my view the applicant has failed dismally
to show and prove on a balance of probability that indeed he was in possession
of this property and that he was despoiled.
The respective versions of the parties on these issues which I have
deliberately outlined in detail clearly shows that despite the matter being
urgent (if facts alleged are proved) there are serious disputes of facts which
cannot be resolved on the papers without doing an injustice to the
parties. I have highlighted the number
of material disputes of fact in this matter which virtually makes it impossible
for this court to resolve the matter on the papers filed and possibly grant the
relief sought. The parties are not in
agreement at all on the following material facts;
(i)
whether respondent has
been in possession of the Land Rover motor vehicle from the time of the
marriage in July to date.
(ii)
whether the applicant
at any stage after the marriage took possession of the motor vehicle.
(iii)
whether respondent
visited the applicant's place of residence at all on the night of 11 January
2012.
(iv)
whether the respondent
on 11 January 2012 forcibly took the property referred in para 20 of the
applicant's founding affidavit or the applicant simply left this property in
the respondent's house when he moved out of the matrimonial house.
I am of the
strong view that this is not a proper case in which this court can resolve the
above dispute of facts raised in the affidavits without hearing of evidence see
CAPS United Football Club (Pvt) Ltd vs
CAPS Holdings Limited & 3 ors SC 11/09.
In the case of
Zimbabwe Bonded Fibre Glass (Pvt) Ltd vs
Peech 1987 (2) ZLR 338 (S) at 339 C - E GUBBAY JA (as he then was)
reiterated this principle as follows;
"It
is, I think, well established that in motion proceedings a court should
endeavour to resolve the dispute raised in affidavits without the hearing of
evidence. It must take a robust and
common sense approach and not an over fastidious one; always provided that it
is convinced that there is no real possibility of any resolution doing an
injustice to the other party concerned. Consequently there is a heavy onus upon an
applicant seeking relief in motion proceedings, without the calling of evidence,
where there is a bona fide and not
merely an illusory dispute of fact. See Room Hire Co (Pvt) Ltd v Jeppe Street
Mansions (Pvt) Ltd 1949 (3) SA 1155 (T) at 1165; Soffiantini v Nould 1956 (4) SA 150E at 154; Joosab
& Ors v Shah 1972 RLR 137 137 (G) at 138 G - H; Lalla v Spafford N.O. & Ors 1973 RLR 241 (G) at 243 B; Masukusa v National Foods Ltd and Anor 1983 (1) ZLR (HC)."
I am satisfied
that the relief claimed by the applicant - mandament
van spolie cannot be granted in view of factual disputes in the
matter. The applicant has not shown and
proved that he was in peaceful and undisturbed possession of the motor vehicle
and other property in issue.
It can not be
resolved on papers filed whether the applicant was unlawfully deprived of the
possession of his property by the defendant.
The merits of both the applicant's and respondent's right to possession
of the property are not justiciable at this stage. The denial by the respondent of material
allegations made by the applicant cannot be resolved on the papers filed. There are therefore material dispute of facts
in the matter which make virtually impossible for this court to grant the
relief claimed of restoration of possession ante
omnia.
In the
circumstance, the urgent chamber application is therefore dismissed with costs.
Mupindu
& Mugiya Law Chambers, applicant's legal practitioners
Musunga & Associates, respondent's legal
practitioners
