Dreamoss Investments (Private) Limited t/a Develop Communities in Africa v National Housing Delivery Trust t/a Zimbabwe Trust Housing Finance and Energy Mutodi and Gift Chaya

### Preamble
1
HH 490-13
HC 9865/12
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DREAMOSS INVESTMENTS (PRIVATE) LIMITED t/a DEVELOP

COMMUNITIES IN AFRICA

versus

NATIONAL HOUSING DELIVERY TRUST t/a ZIMBABWE TRUST

HOUSING FINANCE

and

ENERGY MUTODI

and

GIFT CHAYA

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 3 & 11 December 2013

M. Hogwe, with Ms M. Magorimbo, for the applicant

F. G. Gijima, for the respondents

ZHOU J:  This is an application for a mandament van spolie.  The applicant is a company which carries on business as a land developer.  The first respondent is a company in the same business as the applicant.  The second respondent controls the first respondent.  His position in that company is not described in the papers.

The applicant alleges the following: In September 2012 it entered into a written agreement with an organisation called Mutare Housing Consortium.  The first respondent is a member of the Mutare Housing Consortium.  In terms of that agreement the applicant was to service and develop into residential stands a piece of land owned by the Mutare Housing Consortium.  The piece of land is known as Gimboki South and is located in the Dangamvura area of Mutare.  Pursuant to that agreement the applicant took occupation of the land on 10 September 2012 and commenced work on it.

On 13 November 2013 the respondents through their agents moved onto the construction site and commenced some work thereon the following day.  The applicant alleges that the respondents’ agents are excavating on the site which was under the control of the applicant from September 2012, thereby interfering with the applicant’s occupation of the site.

The respondents filed papers in opposition to the application.  The respondents contest the agreement concluded between the applicant and Mutare Housing Consortium.  They have attached to the opposing affidavit documents, including minutes of meetings, which show that there was disagreement among members of the Mutare Housing Consortium which resulted in a split regarding whether or not to contract the applicant to carry on development work at the disputed site.  Meetings were held at which the Mutare City Council, the local authority for the area in question, tried to bring the members of the Consortium together.  At those meetings the issue of the involvement of the applicant in the development featured prominently.  The respondents and some members of the Mutare Housing Consortium disputed the decision taken on behalf of the Consortium to engage the applicant in the development of Gimboki South.

The respondents objected to the hearing of the application on an urgent basis and argued that the certificate of urgency and papers filed did not justify the making of an urgent application.  Both parties accept as settled the principle that an application for spoliation is urgent by its very nature, as “it exists to preserve law and order and to stop and reverse self-help in resolution of disputes between the parties”.  See  Karori (Pvt) Ltd &Anor v Mujaji2007 (1) ZLR 105(H) at 108B-C.  Based on that principle, Mr Hogwe for the applicant submitted that an application for a mandament van spolie does not need to satisfy the requirements of urgency which an ordinary urgent application must satisfy.  He argued, in the alternative, that in the circumstances of this case the facts clearly justify determination of the matter on an urgent basis.  For the respondents, Mr Gijima submitted that notwithstanding the urgent nature by which a mandament van spolie must be dealt with an applicant is nevertheless enjoined to prove that the circumstances of his case require the urgent intervention of the Court.  I agree with the submission by Mr Gijima.  The mandament van spoile is a unique and summary procedure by which a dispute must be resolved expeditiously in order to prevent self-help.  In other words, if an applicant seeks a spoliation order on an urgent basis he or she must satisfy the requirements for the matter to be heard on an urgent basis.  As to the principles relating to urgency, see Triple C Pigs & Anor v Commissioner-General ZRA 2007 (1) ZLR 27(H) at 30A-31E;  General Transport & Engineering (Pvt) Ltd &Ors v Zimbank Corp (Pvt) Ltd 1998 (2) ZLR 301(H) at 302A-E;  Dilwin Investments (Pvt) Ltd t/a Formscaff v Jopa Engineering Co (Pvt) Ltd HH-116-98.

The difficulty of instituting an application for a spoliation order as an ordinary court application or by way of summons is that the applicant might be confronted with a counter-application or a counterclaim for the rei vindicatio which would negate the whole purpose of the mandament which was designed to restore the status quo ante before the equities or merits of the case are considered.  In order to deal with a situation of a counter-application the approach of the court is to invoke the principle spoliatus ante omniarestitutendus est – the person who has been despoiled must first be restored to his former position before the merits of the case can be considered.  By application of this principle the court will not countenance a counter-application in an application for the mandament.  C.G. van der Merwe & M.J. de Waal, The Law of Things & Servitudes, p. 68. An applicant who seeks a mandament van spolie on an urgent basis must show that he acted with due expedition and did not wait until the day of reckoning came.  A spoliation order is a final order.  Before it is granted the respondent must be allowed to state his case.  Shagan Bros v Lewis 1911 TPD 417.  The applicant, on the other hand, must, just as in other civil cases, prove on a balance of probabilities that he is entitled to the order for the return of property. See Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248(H) at 250C; Karori (Pvt) Ltd & Anor v Mujaji (supra) at 108C-E.  Where the applicant’s right is only prima facie established, the appropriate interim order should not be the return of the property (because that is a final order), but an interim interdict restraining the respondent from alienating the thing or some such similar relief, coupled with an order for the respondent to show cause, if any, why he must not be ordered to restore possession at a future date.  The rationale for such an approach is that a respondent should not be allowed to obtain a final order on the basis of prima facie proof.

In the instant case I am prepared to deal with the matter on an urgent basis.  The fact that the applicant has been carrying on development work on the disputed site is admitted by the respondent.  What is in dispute is the extent of the work as well as whether the applicant used its own resources to carry on the work or merely used money obtained from the beneficiaries.  It is established on the papers that during the period that the applicant has been carrying on work at the site the respondents were not working.  It is also admitted by the first respondent that it did bring onto the site some equipment on 13 November 2013 and that it commenced excavation work from about that date. The urgent chamber application was instituted on 19 November 2013.  I am satisfied that the applicant acted with due expedition upon realising that its occupation and work were being interfered with by the respondents.  See Kuvarega v Registrar-General &Anor1998 (1) ZLR 188(H) at 193F-G.  The meetings or so-called arbitrations which were held to discuss the applicant’s presence on the site do not constitute an unlawful interference which could trigger the making of an urgent application.  They were an attempt at resolving the merits of the right to be carrying on work on the site.  They are not an act of self-help.

The requirements for the granting of a mandament van spolie are settled.  In the case of Botha & Anor v Barret 1996 (2) ZLR 73(S) at 79D-E, the Court stated the following:

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

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

That the respondent deprived him of the possession forcibly or wrongfully against his consent.”

See also Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-op & Ors 1999 (2) ZLR 19(S).

The first respondent states that from about June 2012 its work on the site stalled due to liquidity challenges.  I understand that to mean that from that time up to November this year only the applicant was working on the site.  The respondent had stopped its operations during that period.  It only resumed in November 2013.  The respondents state that the first respondent’s equipment remained on site, and that what was brought in during the month of November was simply additional equipment.  But the bringing in of the additional equipment and the commencement of work on the site has interfered with the applicant’s operations, as that work is being done on the same site on which the applicant has been working.

I am satisfied, therefore, that the applicant was in peaceful and undisturbed possession of the site.  I accept, too, that the resumption of work by the respondents on the same site on which the applicant is working constitutes interference with the occupation of the site.  That interference constituted an act of spoliation on the part of the respondents.  The fact that the respondents dispute the validity of the agreement in terms of which the applicant took occupation of the site is not a valid defence to an application of this nature.  The case of Fredericks & Anor v Stellenbosch Divisional Council 1977 (3) SA 113(C) at 117C succinctly explains the position of the law:

“The Court is not concerned with the nature of the applicants’ occupation.  What it is concerned with is that the respondent should not take the law into its own hands . . . Such conduct cannot be countenanced or condoned.”

Cited with approval in Mutsotso & Ors v Commissioner of Police &ors1993 (2) ZLR 329(H) at 334A;  See also Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-op &Ors (supra) as to defences which are valid at law.

The final relief being sought by the applicant, other than on the question of costs, is that: “The Provisional Order be and is hereby confirmed.”  This Court has held that it is undesirable to seek interim relief “which is exactly the same as the substantive relief sued for and which has the same effect”.  See Kuvarega v Registrar-General & Anor (supra) at p. 193A-B.  In considering the appropriate interim relief to be granted, I will consider, in addition to the other factors relevant, the fact that it has not been disputed by the applicant that the first respondent left some of its equipment at the site when it stopped work on the site in June 2012.  The respondent merely brought in additional equipment and its manpower.  The question of the removal of the respondents’ equipment from the site can therefore be dealt with on the return date after the parties have filed a full set of papers.

The question of the appropriate order of costs is equally left for debate on the date of the confirmation or discharge of the provisional order.

In the result, I make the following provisional order:

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:

The respondents and all those claiming through them be and are hereby ordered to remove all their construction equipment from Gimboki South Dangamvura, Mutare upon service of this order.

The respondents shall pay the costs of this application on an attorney-client scale jointly and severally, the one paying the others to be absolved.

INTERIM RELIEF GRANTED

Pending determination of this matter the applicant is granted the following relief:

The respondents be and are hereby ordered to restore peaceful and undisturbed occupation of Gimboki South Dangamvura, Mutare to the applicant upon service of this order by:

Ceasing or stopping all excavation or other construction or development work on the site; and

Removing all their employees from the site;

Not interfering with the applicant’s work at the site.

SERVICE OF PROVISIONAL ORDER

The applicant’s legal practitioners are hereby granted leave to serve a copy of this provisional order upon the respondents or their legal practitioners.

Hogwe, Dzimirai& Partners, applicants’ legal practitioners

F.G. Gijima& Associates, respondents’ legal practitioners