Levison Zihute v Moses Mugwagwa and Caleb Machinga and Hermish Katsande and Overflow Zone Enterprises (Pvt) Ltd

### Preamble
1
HH 529- 21
HC 4158/21
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LEVISON ZIHUTE

versus

MOSES MUGWAGWA

and

CALEB MACHINGA

and

HERMISH KATSANDE

and

OVERFLOW ZONE ENTERPRISES (PVT) LTD

HIGH COURT OF ZIMBABWE

MUCHAWA J

HARARE, 13 September 2021& 27 September 2021

URGENT CHAMBER APPLICATION

T C Masara, for applicant

N Chikono, for 3rd respondent

T Nyamucherera, for 4th respondent

MUCHAWA J:  This is an urgent chamber application for a spoliation order which was initially lodged against the first to third respondents before the fourth respondent was joined to the proceedings in terms of Rule 32(12) (b) of the High Court Rules, 2021.

The third respondent abandoned the points in limine raised in its papers of opposition. I will therefore go into the merits of the matter. The applicant’s case is that he bought two pieces of land from Hayes Zimbabwe Private Limited and Rawson Properties on 18 June 2020, being stands 18017 and 18018 Tynwald Township of lot 12 Tynwald. After purchase, it is averred that the applicant erected a wooden cabin on stand 18018 and employed one Tatenda Chinhotsva to reside there and watch over the properties. There is a supporting affidavit from Tatenda Chinhotsva to this effect.

The applicant states that on 13 August he was telephoned by Tatenda Chinhotsva who reported that some four men had marched onto the properties, claiming to be the owners, had removed applicant’s wooden cabin and dumped it on stand 18019 and started digging foundation trenches for a durawall around the properties. Upon visiting the properties, the applicant claims to have confirmed the events as reported to him and that he failed to stop the alleged invaders even after being referred to the second respondent who further referred him to third respondent but did not avail the contact number. A return visit on 14 August revealed to the applicant that the first to third respondents were continuing undeterred in their actions.

It was contended for the applicant that he was in peaceful and undisturbed possession of the stands and the first to third respondents took the law into their hands and without his consent or any lawful order, dispossessed him of same. The relief sought is a reversal to the status quo ante.

There was no notice of opposition filed by the first and second respondents. The third respondent’s defense is that the two stands belong to the estate of the Late Denford Katsande  registered with the Master of the High Court under DR 2389/19, to which he is the executor dative and he was the one in lawful possession of same as he never relinquished such. The third respondent claims that it has been a long time since he last visited the stands and was therefore not one of the four men who allegedly visited the stands on 13 August 2021 and carried out the acts complained of. He however explains that the second respondent is a developer whom he instructed some years back, to safeguard and develop the stands but he had no idea that the instruction would be carried out on 13 August otherwise he would have advised second respondent of case number HC 2885/20 which had halted all developments.   Further, the third respondent claims not to have seen the wooden cabin but insists that by virtue of being executor of his father’s estate, he was in possession of the said stands. It was the third respondent who pointed out that the same stands were also being claimed by fourth respondent and an order by consent in case HC 4151/21 had been entered on 27 August 2021, barring third respondent herein and all those claiming entitlement through him from further developments on the stands. The applicant was however not party to such proceedings.

The fourth respondent also claims ownership of the same stands based on an agreement allegedly entered with the owners of the stands. Further, it is averred that the fourth respondent was in occupation of these stands since 2019 and had also installed a cabin on stand 18018 which was initially occupied by one Tonderai Mushoma and then Sanction Mukopa as its employees and was destroyed. The fourth respondent disputes that the applicant occupied the stands in June 2020 and states that the applicant’s invasion was in April 2021 and was contrary to the court order in case HC 2885/20 of 3 August 2020 which prohibited the development of any temporary structures on the stands. Further, the fourth respondent claims to have reported the case of invasion of the stands to Malbereign Police under RB number 4755130 which was against one Power Fumhanda and Leon Zvarevashe. It is further stated that the fourth respondent had approached the court under case HC4151/21 as a result of the same events of 13 August 2021 leading to the order by consent, barring any further developments on the stands. In  short, the fourth respondent also claims to have been in peaceful and undisturbed possession of the said stands.

THE LAW

The mandament van spolie is a restitutory interdict that accrues to a possessor where another has deprived him of possession on the pretext that the latter was entitled to do so, or where the possessor has otherwise been deprived of possession unlawfully. Public policy requires that no one may take the law into their own hands. All possessors, whether in lawful possession of an item or not, who are deprived of their possession must first have their possession restored to them before the lawfulness or unlawfulness is investigated. It is therefore not permissible to go into the merits of the case before the person whose possession has been disturbed is again placed in possession of the item. See Eckard’s Principles of Civil Procedure in the Magistrates’ Courts, 5th edition, Juta and Company Ltd, 73

In Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79-80, it was said by gubbay cj:

“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.”

Furthermore, the applicant's possession must not be mere physical possession. Physical possession must be accompanied by requisite animus or intent. This was clearly expressed by addleson j in Bennett Pringle (Pvt) Ltd v Adelaide Municipality 1977 (1) SA 230 (E) at 233G-H as follows:

“In terms of all the authorities cited, the  `possession', in order to be protected by a spoliatory remedy, must still consist of the animus - the `intention of securing some benefit to' the possessor; and of detention, namely the `holding' itself ... If one has regard to the purpose of this possessory remedy, namely to prevent persons taking the law into their own hands, it is my view that a spoliation order is available at least to any person who is: (a) making physical use of property to the extent that he derives a benefit from such use; (b) intends by such use to secure the benefit to himself; and (c) is deprived of such use and benefit by a third person.''

APPLICATION OF THE LAW TO THE FACTS

The applicant discharged the onus of proving that he was in peaceful and undisturbed possession of the property. His averments prove that he bought the stands with a view to accruing some benefit therefrom and he had Tatenda Chinhotswa in physical occupation at his instance in a wooden cabin installed by him. The third respondent’s possession is discounted by his averments that he was not in physical possession but just the requisite animus on account of being the executor of his father’s estate. He expressly states he had given instructions to second respondent as developer, some years back and did not give the instructions for the actions of 13 August 2021. The third respondent does not deny that the applicant was in possession of the said stands.

Though the fourth respondent claims to have had both physical control and intention, the averments in its founding affidavit in case HC 4151/21 show that it was not in physical possession as the infringements they discovered on 14 August 2021 were not reported by any of the employees allegedly resident at stand 18018 as stated in this application. Instead, it was during routine inspections that they came across the alleged dispossession. It is noteworthy that the fourth respondent has incorporated its averments in respect to case HC 4151/21, into this case. In the present case the fourth respondent now says it was in physical control and occupation of the stands. That is irreconcilable as one cannot visit a place which they in occupation of. This is unlike the applicant whose employee immediately reported the dispossession on the 13th of August 2021. The claim that the applicant invaded the stands in April 2021 is extremely unbelievable as no court action was instituted against applicant soon thereafter or at any other time and neither was applicant cited in case HC 4151/21. Applicant is also not the subject of the alleged police report. Assuming for a moment, that there was indeed an invasion by the applicant in April 2021, the only reasonable inference would be that the fourth respondent consented to dispossession. The applicant has made it clear that no complaint is made against the fourth respondent.

The question of dispossession is common cause as evidenced by the order in case HC 4151/21 and third respondent’s admission that second respondent was acting in terms of his instruction, albeit the qualification that it was given years back.

It is my finding there that the applicant has proved that he was in peaceful and undisturbed possession and was dispossessed. He is entitled to the granting of a mandament van spolie.

APPROPRIATE RELIEF

Both the third and fourth respondents were opposed to the granting of paragraph 2 of the draft order on the basis that this has already been taken care of in HC 4151/21 wherein the third respondent herein was interdicted from further developments of stands number 18017 and 18018. The applicant was in agreement.

Similarly, in case HC 2885/20, an order was entered by consent wherein the third respondent and 14 others agreed that pending the resolution of ownership of immovable property held under deed of transfer 4209/86, parties were barred from developing temporary structures or any other buildings from the third of August 2020. This order was given after the applicant had already taken occupation in June 2020. Granting him spoliatory relief would not in any way contradict this order.

Costs follow the cause.

I accordingly order as follows:

The first, second and third respondents, their assignees and invitees, be and are hereby ordered, forthwith, to restore the status quo ante as at 12 August 2021 by vacating and ceasing possession or occupation of any portion of the following properties;

A certain piece of land situate in the district of Salisbury called stand 18017 Tynwald Township of Lot 12 of Tynwald measuring 637 square metres.

A certain piece of land situate in the district of Salisbury called stand 18018 Tynwald Township of Lot 12 of Tynwald measuring 662 square metres.

The third and fourth respondents to pay costs.

V.S. Nyangulu & Associates, applicant’s legal practitioners

Moyo Chikono & Gumiro, 3rd respondent’s legal practitioners

Lawman Law Chambers, 4th respondent’s legal practitioners