Anthony Mutaku Pachena v Francisca Nyamukapa

### Preamble
1
HH 557-25
HCH 4659/25
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ANTHONY MUTAKU PACHENA

versus

FRANCISCA NYAMUKAPA

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

HARARE 19 September 2025

Urgent chamber application

L. Machacha for the applicant

I. Chingarande for the respondent

DUBE-BANDA J

[1]	 After hearing Mr Machacha counsel for the applicant, I struck from the roll this application in an ex-tempore ruling. I have not been requested for detailed written reasons, but I have decided to provide them, nonetheless. These are they:

[2] 	This is an urgent application in which the applicant seeks a provisional order couched in the following terms:

Terms of the final order

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

It is ordered that:

The application for spoliation succeeds.

The respondent and all other persons acting through them or their instructions be and is hereby ordered to restore the applicant’s undisturbed and peaceful possession of house No. 19 Sawley Way, Marlborough East, Harare within 2 hours of granting this order.

The respondent to pay costs at legal practitioner client scale.

Interim relief sought

Pending determination of this matter on the return date, the applicant is granted the following relief:

It is ordered that:

The application for spoliation succeeds.

The respondent and all other persons acting through them or their instructions be and is hereby ordered to restore the applicant’s undisturbed and peaceful possession of house No. 19 Sawley Way, Marlborough East, Harare within 2 hours of granting this order.

The respondent to pay costs at legal practitioner client scale.

Service of the provisional order

Leave be and is hereby granted to Marlborough Police or the Sheriff to service of this order and using all means necessary to ensure that the order is given effect in terms of the rules of this Honourable Court.

[3] 	The factual background of this matter is as follows. The applicant has, for the past two years been staying at No. 19 Sawley Way, Marlborough East, Harare (“the property”). It is contended that on 17 September 2025, at around 7 pm, the respondent with a group of ten men and one woman arrived at the property and started assaulting the applicant and his family. The applicant’s movables were removed from the property and scattered outside the gate. It is further contended that after removing the movables, the assailants locked the gate, while applicant’s wife was still inside the property. The applicant and the children are alleged to be outside the property, while the applicant’s wife is locked inside the property. It is on these facts that the applicant sought the provisional order stated above.

[4] This application was allocated to me late on 18 September 2025. After perusing the application, I noted that it had several procedural pitfalls. Nonetheless, I directed that it be set down so that I hear the applicant in respect of the infractions I had observed in the application.

[5] 	At the commencement of the hearing, I posed three questions to Mr Machacha. First, I asked counsel whether a litigant can seek a provisional order in an application for a spoliation. I brought to the attention of counsel the cases Blue Rangers (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 368 (S) and Chiwenga v Mubaiwa 2020 (1) ZLR 1360 (S).  The second issue I raised with counsel was on what basis the application was served on the respondent without the presiding judge directing it be served. The third issue was on what basis the respondent was given a dice indicia of four hours.

[6] 	Regarding the first issue, counsel submitted that the Registrar of this court refused to accept an urgent application without a provisional order. I make no finding on whether the Registrar did what is alleged. However, what I can say is that it is not within the lane of the Registrar to refuse to accept an urgent application because it does not have a provisional order. There are instances where a final order may be sought in an urgent chamber application. In Palmer v Kanyenze 2020 (1) ZLR 35 (H) at 41 E – F the court said:

“Is it competent to seek a final order in a chamber application accompanied by a certificate of urgency? There are instances where a final order can competently be granted in such an application and there could be instances where granting a final order in such a case would be incompetent. It is something that has to be decided on a case by case basis. A final order for spoliation may be granted in an urgent application.”

[7] 	Legal practitioners are presumed to know the law, and therefore it cannot be a defence for counsel to claim that the Registrar refused to accept an urgent application which has no provisional order.

[8] 	On the issue of service, counsel submitted that the rules of court permit, without a directive from a judge, a litigant to serve an urgent application. Regarding a dies induciae of four hours, counsel submitted that the rules do not provide a time-line upon which a litigant may file opposing papers, and a litigant is at large to provide a time-lime on which opposition is to be filed. I requested Mr Chingarande for the respondent whether he had submissions on the issues I raised with the applicant, counsel had no meaningful submissions on these issues and started to address on what I considered the merits of the matter. I stopped him. After hearing Mr Chingarande, I asked Mr Muchacha whether he had further submissions to make, he started to address on the merits and I quickly stopped him. I took the view that it would not have served a useful purpose to hear the merits of such an application with so many procedural infractions.

[9] 	I now turn to whether it is competent for a litigant to seek a provisional order in an application for a spoliation order. In this jurisdiction the law is settled that an order of spoliation is final in nature and that it determines the immediate right of possession of the property․ It is frequently followed by further proceedings between the parties concerning their rights to the property in question. Moreover, a spoliation order cannot be sought on the evidence of a prima facie right. See Blue Range Estates P/L v Muduvisi 2009 (1) ZLR 368, 377D․ It is trite that it is incompetent to seek a provisional order in an application for a spoliation. In the founding affidavit the applicant avers that he has a clear right, if indeed he has such a right he would not have sought a provisional order. This is trite, basic and elementary. By seeking a provisional order, it can only mean he accepts that he has pleaded a prima facie case, and he cannot be granted a final order.

[10] 	Notwithstanding the merits of the applicant’s case, the relief sought in this matter is incompetent and cannot be granted by this court. In addition, a judge cannot use r 60(9) to grant a final order where a litigant had sought a provisional order. In Chiwenga v Mubaiwa 2020 (1) ZLR 1360(S) at 1368 B-C the court said:

“The learned judge a quo, perhaps having realised that the interim relief sought fitted the definition of a final order, apparently threw caution to the wind and granted a final order that had not been sought by the respondent. By going on a frolic of his own and determining issues not placed before him, the learned judge fell into grave error and misdirected himself.

[11] 	The relief sought is incompetent and cannot be granted by this court, and therefore there will be no useful purpose to hear argument on the merits. This application can only be struck off the roll. In general, the inquiry must end here.

[12] 	However, for the purposes of completeness, I deal with several other infractions committed in this application. The interim relief sought in this application is identical, word for word, with the final relief sought. In Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H) at 193 A-B the court said:

“The practice of seeking interim relief, which is exactly the same as the substantive relief sued for and which has the same effect, defeats the whole purpose of interim protection. In effect, a litigant who seeks relief in this manner obtains final relief without proving his case.”

[13] 	Thus in this case, the provisional order suffers from this defect. The provisional order is so incompetent that the applicant even sought, in the interim relief, costs at legal practitioner and client scale. A court cannot in the interim relief grant costs. The reason for this is obvious, once costs are granted, it will mean the litigant has been granted final relief. Costs may only be granted on the return date. This is basic and elementary.

[14] 	I now turn to the issue of whether an urgent application may be served on the respondent without the presiding judge directing it to be served. A closer reading of the rules shows that an urgent chamber application is judge driven. It is the judge who maps out the route the application must take and remains in the driving seat until the matter is disposed of. In other words, it is under the control and management of a judge, and it is his or her primary responsibility to ensure that the matter is disposed of expeditiously. See RioZim Pension Fund v Will-Cote (Pvt) Ltd & Ors 2020 (1) ZLR 198 (H). In my view r 60(6) confirms this position, it says:

“Where a chamber application is accompanied by a certificate from a legal practitioner in subrule (4)(b) to the effect that the matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to the judge, handling urgent applications who shall consider the papers forthwith.”

[15]	 Therefore, a chamber application, upon its filing, must immediately be placed before a judge, and the judge must consider the papers forthwith. It is at this point that the judge takes total control and management of the application, and in terms of r (60)(9) if he or she is satisfied that the papers establish a prima facie case he or she shall grant a provisional order either in terms of the draft or as varied. Once a provisional order is granted, the applicant is obliged to serve it on the respondent and Form 26 alerts the respondent of his or her procedural rights. It tells him or her that if he does not oppose the application within ten days, it shall be dealt with as an unopposed application for confirmation of the provisional order. In addition, it tells him or her what he or she must do if he or she wishes the provisional order to be changed or set aside sooner than the rules of court allow.

[16] 	If the judge is not satisfied that the papers establish a prima facie case, he may in terms of r 60(8) decide whether to cause the application to be set down for the applicant, or both the applicant and the respondent to present argument. Therefore, it is only a judge who can direct that urgent application be served on the respondent. My humble view is that it is incorrect and not in terms of the rules for an applicant to serve an urgent application before it is placed before a judge. Such service takes away from the judge the power to manage and control the process, e.g., if a dies induciae has been given, a judge cannot grant the provisional order before the expiry of the timeline and even hearing the respondent. The service that is not directed by the judge, in essence defeats the urgency of the application. Therefore, an urgent application can only be served if the presiding judge so directs.

[17] 	In the event the judge takes the view that the application is not urgent, he or she shall strike it from the roll of urgent matters, and thereafter it shall in terms of r 60(9) be referred to the roll of ordinary court applications.

[18] Regarding the issue of dies induciae an applicant in an urgent chamber application cannot just give a timeline to file opposing papers. It is the judge who, if service is required, shall direct the respondent to file opposing papers within a certain timeline. If the applicant serves the application and gives a dies induciae, it will mean the registrar shall not be able to immediately submit it to the judge before the expiry of the dies indiciae, and if submitted a judge, he or she will not be able to consider the papers forthwith before the expiry of the dies induciae. Therefore, such an application seizes to be urgent.

[19]	 In conclusion, it is trite that it is incompetent to seek a provisional order in an application for spoliation. In addition, it is incompetent to seek interim relief, which is the same as the final order sought. An urgent application can only be served to the respondent on the directions of the presiding judge. It is the judge who, if service is required, shall direct the respondent to file opposing papers within a certain timeline. This application fails primarily on the first hurdle, i.e., that the relief sought is incompetent.

In the result, I make the following order:

This application is struck off the roll because it is fatally defective in that the applicant seeks provisional order in an application for a spoliation.

There is no order as to costs.

DUBE BANDA J………………………………………

Zvavanoda Law Chambers, applicant’s legal practitioners

Chasi Maguwudze Legal Practice, respondent’s legal practitioners