Silverton Estates (Pvt) Ltd and Michael Charles Jahme v Ignatious Kamba and Prosper Sithole and Samuel Zuze and The Minister of Land, Land Reform and Resettlement and The Commissioner General ZR Police and The Officer in Charge (DISPOL) ZR Police Chipinge and The Attorney General N.O.

### Preamble
HH 128-10
HC 4223/10
SILVERTON ESTATES (PVT) LTD
and
MICHAEL CHARLES JAHME
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SILVERTON ESTATES (PVT) LTD
and
MICHAEL CHARLES JAHME
versus
IGNATIOUS KAMBA
ad
PROSPER SITHOLE
and
SAMUEL ZUZE
and
THE MINISTER OF LAND, LAND REFORM AND
RESETTLEMENT
and
THE COMMISSIONER GENERAL ZR POLICE
and
THE OFFICER IN CHARGE (DISPOL)
ZR POLICE CHIPINGE
and
THE ATTORNEY GENERAL N.O.

HIGH COURT OF ZIMBABWE
CHIWESHE JP
Harare, 28 June 2010.

D.P. Drury, for the applicants
S. Machiridza, for the first and second respondents
1. Nduzdo, for the third respondent
E. Chaunoita, for the fourth to seventh respondents

CHIWESHE JP: In this urgent chamber application the applicants seek a spoliation order couched as follows:

“It is ordered that:

1. That applicants’ their employees, agents or invitees possession to Lot 8 of Newcastle also known as Silverton Estates in the District of Chipinge be restored.
2. That first to third respondents and all others acting through them provide free and unfettered access by applicants, their employees, agents or invitees to Lot 8 of Newcastle.
3. That the Deputy Sheriff, should it become necessary, be and is hereby authorized and empowered to attend to the removal of first to third respondents and all other persons acting through them from Lot 8 of Newcastle in the Chipinge District and pursuant thereto, the Deputy Sheriff may enlist the assistance of any member of the Zimbabwe Republic Police to attend to such removal, the police being directed to provide such assistance so that the provisions of this order be implemented in full.

Alternatively:


4. That the applicants, their agents, employees or invitees be and are hereby authorized and empowered to enter upon Lot 8 of Newcastle for purposes of collecting and removing all movable property and assets and of the opportunity to assess and record the extent of damage and loss to their property.

5. That the fifth respondent be and is hereby directed to provide an escort to applicants or its agents onto Lot 8 of Newcastle and provide security and protection to applicants and their agents to attend to matters pursuant to paragraph 4.

6. That first to third respondents and all other persons acting through them, be and are hereby interdicted from in any way hindering, preventing or impeding the applicants’, their agents, employees or invitees from implementing and executing the provisions of paragraph 4.

7. That first to third respondents pay applicants’ costs of suit on a legal practitioner and client scale the one paying the other to be absolved.”

In support of this application the applicants filed a founding affidavit signed by one Michael Charles Jahme, a director and shareholder of the first applicant and a supporting affidavit signed by one Elsie Jahme, wife to Michael Charles Jahme. The facts deposed to by the applicants are generally as follows. In the early hours of 8 June 2010 a group of persons entered Silverton Estate Lot 8 demanding to take over “their” property. Initially the group numbered seven but with time the number increased to twenty. The group broke down the main entrance doors and gained entry into the main residence where they looted various items of property and threatened both the second applicant and his wife. It appeared to the applicants that the group comprised of drunken “youths”. As a result of the threats of violence to their persons and property, the applicants were forced to vacate Silverton Estate, leaving behind much of their household and other property.

The evidence at hand indicates without doubt that an act of spoliation took place. The applicants are entitled to full restoration of undisturbed possession of the estate and various movables. However the evidence given by the applicants does not link any acts of spoliation to the respondents. The first, second and third respondents deny any involvement in the events narrated by the applicants. The applicants have not said they saw any of these three respondents with this group of youths. All they say is that they understood the youths to have been sent by one or other of the three respondents. Any evidence to that effect is simply hearsay and cannot be relied upon. The three respondents are holders of offer letters relating to this estate. They say it is on that basis that it is suspected they have links to the “youths”. In my view the applicants should have checked their facts before embarking on this application. I am fortified in this regard by the mention by the applicants of individuals other than the respondents who were clearly with the “youths” at the time and directing “operations” so to speak. These individuals have been identified by name. They have not been cited.

In the circumstances I see no basis upon which the order sought can be brought to bear upon any of the respondents. For these reasons it is ordered that the application be and is hereby dismissed with costs on a legal practitioner and client scale.

Gollop & Blank, applicants’ legal practitioners
Muzangaza, Mandaza & Tomana, first and second respondents’ legal practitioners
Mutamangira & Associates, third respondent’s legal practitioner
Civil Division of the Attorney General’s Office for the fourth to seventh respondents
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