Shepherd Muchero v Thaddeas Chinyanga

### Preamble
1
HH 274-2012
HC 6732-2012
REF CASE NO; CIV ‘A’ 217-2012
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SHEPHERD MUCHERO

versus

THADDEAS CHINYANGA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 27 JUNE 2012 AND 04 JULY 2012

A.Chambati for the applicant

Respondent in default

MATHONSI J: In this matter the applicant seeks a spoliation order against the respondent in respect of a Mazda Familia motor vehicle registration number ABD 8958 alleging that he was, until 12 June 2012, in possession of the said motor vehicle. On that date, the respondent dispossessed him of the vehicle using wrongful means.

The applicant and the respondent have had a cat and mouse relationship over the vehicle in question for quite some time. The applicant alleges that he purchased the vehicle on 8 October 2011 at PM Car Sales in Graniteside Harare for US$4 100. He says he did not have a driving licence then and for that reason requested the respondent to drive his vehicle to the applicant’s home.

Thereafter the respondent would drive him around as he still had no driving licence and at some stage he allowed the respondent to use the vehicle while he was out of the country. Upon his return he discovered that the respondent had been using his motor vehicle as a pirate taxi. As he now had a driving licence, he took the vehicle away from the respondent.

The applicant further alleges that he later allowed the respondent to again use the vehicle but the respondent did not return it forcing him to report the matter to the police as a case of theft of a motor vehicle. That way, the applicant was able to recover his vehicle through the police. This was to be a phyrric victory for the applicant as the respondent obtained an order of the magistrates court

for the motor vehicle to be surrendered to him. The applicant states that he appealed against that order on 11 April 2012 which appeal then suspended the operation of the magistrates court order.

Displaying a ‘never say die’ attitude, the respondent enlisted the services of what later turned out to be a bogus police officer and by stealth and threats of death they dispossessed the applicant of that vehicle leaving him stranded at Rezende Parkade in the City Centre as they drove away.

The applicant later recovered the vehicle after again reporting the matter to the police. After that the applicant says he took the vehicle to a Car Sales garage in Msasa Harare where it was parked. Again this was to be another short lived victory. No sooner had he left the car there than the respondent arrived at the garage on 12 June 2012 armed with an order of the magistrates court which had been suspended by a notice of appeal. Brandishing that order, the respondent claimed ownership of the vehicle and, according to an employee of Wheeler Dealers where the vehicle was parked, the respondent was forceful and he feared that the respondent would become violent. This forced the employee to surrender the vehicle which the respondent promptly drove away.

The applicant has now made this application for a mandament van spolie against the respondent arguing that the respondent unlawfully forced the Car Sales staff to release the motor vehicle to him thereby committing an act of spoliation.

In Moyo v Chinhamo HB 111/11 (as yet unreported) I stated at p4 that:

“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 Govenrment and Town Planning 1984 (1) ZLR 248 at 250A-D 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.”

The circumstances under which the respondent took the vehicle from Wheeler Dealers in Msasa, are unfortunate indeed. I have no doubt that the applicant was in possession of the vehicle on 12 June 2012 before the respondent took it away. He had parked it at the garage and the staff at that place were holding onto the vehicle on behalf of the applicant.

The respondent came and without the authority of the applicant took the vehicle away. He used both stealth and force to do so. Firstly, he was relying on a court order he knew he was not operational by reason of the appeal that was lodged and is yet to be determined. He could not lawfully recover the vehicle on the basis of the order of the magistrates court.

Secondly, the respondent is said to have been forceful as he claimed ownership of the vehicle forcing those with the custody of the vehicle to fear violence. This, despite the fact that he was aware that the police had lawfully reversed his grabbing of the vehicle from the applicant.

I am not sitting to decide who is the lawful owner of the vehicle. In my view, the requisites of a spoliation order have been satisfied. I must however express indignation at the manner in which parties are now resorting to self-help as a method of setting disputes. This is as unsavoury as it is unacceptable in a civilised society where the rule of law must prevail. The respondent’s unpredictable conduct is underscored by his decision not to attend the hearing despite being given notice and submitting only an affidavit to the effect he does not want to contest the application. There is a need to make an order which bars him from interfering with the applicant’s possession.

In the result, I grant the provisional order in terms of the draft order filed of record.

Sande & Associates, applicant’s legal practitioners