Interim Interdict or Final Order re: Spoliation or Mandament van Spolie Proceedings

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

On 9 March 2009 the High Court made a spoliation order for the restoration of peaceful and undisturbed possession of Twyford Estate in Chegutu to the applicant at the same time directing the first respondent and all those claiming possession of the property through him to vacate the farm forthwith failing which the Deputy Sheriff be authorized to remove them.

The spoliation order was issued in the form of a provisional order. It provided as follows:

“TERMS OF THE ORDER MADE

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

1. The applicant's right to quiet, undisturbed possession of Twyford Estate, Chegutu district, as further particularized in the High Court orders annexed to this application as Annexures '2' and '3' and all movables thereon including livestock (hereinafter called “the property”) be and is hereby confirmed. That it is further declared that such right shall continue to subsist until such time as the applicants…, should it become necessary or expedient…, are lawfully evicted from the property through a competent order of court having final effect.

2. It be and is hereby declared that the conduct of the 2nd respondent and all other persons acting in common purpose or association with him on or about the property from the 6th February 2009 until their removal, resulting in dispossession of applicants from their property, is unlawful for want of compliance with due process to obtain vacant possession of the property, and, accordingly, constitutes an unlawful spoliation of applicants' property.

3. Respondents pay the costs of this application, jointly and severally, the one paying the other to be absolved.

INTERIM RELIEF

That, pending determination of this matter, the applicants are granted the following relief:-

(a) It be and is hereby ordered that the status quo ante to applicants' possession control and occupation of Twyford Estate in the district of Chegutu prior to 2nd respondent and all other persons acting through him summarily occupying the property on the 6th February 2009 be and is hereby restored.

(b) 2nd respondent and all other persons claiming occupation and possession of the property and/or all other persons not being representatives, employees or invitees of applicants are directed to forthwith vacate the property removing all movable property that may have been introduced by them onto the property.

(c) To the extent that it becomes necessary or expedient, the Deputy Sheriff is hereby authorized and empowered to attend to the removal of the 2nd respondent and all other persons acting through him from the property so that the provisions of this order are executed and implemented in full.”

It is common cause that the order made by the learned Judge, in the form of interim relief, is a spoliation order.

On 11 March 2009, the first respondent, who was the second respondent to the application, appealed to the Supreme Court against the order. The Notice of Appeal contained all the matters required under Rule 29 of the Rules of the Supreme Court, 1964 (“the Rules”) for a valid Notice of Appeal. It stated that the order from which relief was being sought was a final and definitive order.

On 22 April, the applicant made an application, to a single Judge of the Supreme Court sitting in chambers, for an order striking the appeal off the roll on the ground that in terms of section 43(2)(d) of the High Court Act [Chapter 7:06] (“the High Court Act”), the order made by the learned Judge was an interlocutory order in respect to which no appeal lay to the Supreme Court without the leave of the Judge who made the order, or, if that was refused, without the leave of a Judge of the Supreme Court. Leave of the learned Judge had not been sought before the appeal was noted. The contention was that no appeal was pending before the Supreme Court.

The first respondent opposed the application on two grounds;

(i)...,.

(ii) The second point taken by the first respondent on the application was on the merits.

He averred that the order made by the learned Judge was a final and definitive order despite the fact that it is interlocutory in form. He said because of the nature of the order an appeal lay to the Supreme Court in terms of section 43(1) of the High Court Act without the leave of the Judge who granted the order....,.

On the second point raised by the first respondent, the applicant persisted in the contention that the order made by the learned Judge was interlocutory. In support of the contention, reference was made to decisions of the High Court in Nyasha Chikafu v Dodhill (Pvt) Ltd & Ors HH41-09 and T Nyikadzino v John Cameron Asher & Ors HH36-09.

In Nyasha Chikafu v Dodhill (Pvt) Ltd & Ors HH41-09 BERE J made a spoliation order in the form of a provisional order couched in terms similar to those used in the provisional order made in this case. The applicant, who was aggrieved by the order, applied to the learned Judge for leave to appeal believing that the order was interlocutory. The learned Judge found, as a fact, that he had made a spoliation order. He held that the order was interlocutory and refused leave to appeal on the ground that there were no prospects of success on appeal.

In T Nyikadzino v John Cameron Asher & Ors HH36-09 a spoliation order was also made in the form of a provisional order the terms of which were also similar to those used in this case. The applicant, who was also aggrieved by the order, appealed to the Supreme Court. The respondent nonetheless instructed the Deputy Sheriff to execute the order on the advice of its legal practitioners that the order was interlocutory, and, as no leave had been sought and obtained from the Judge who granted it, no appeal lay to the Supreme Court for an order staying execution of the order pending appeal.

The learned Judge President heard the opposed application. She found, as a fact, that the order made “was a spoliation order, simply restoring possession of the farm to the first respondent without going into the merits regarding lawfulness or otherwise of such possession.”

She went on to hold that a spoliation order granted in the form of an interim relief was an interlocutory order not appealable without the leave of the Judge who made the order, or, if that has been refused, without the leave of a Judge of the Supreme Court. The learned Judge President dismissed the application after saying that:

“A provisional order granted under the rules is always subject to confirmation or discharge before it becomes final. Confirmation on discharge is in open court and is on a balance of probabilities. In a provisional order, the power of the court to vary, discharge or confirm its earlier decision is re-affirmed in that it calls upon the respondent to show cause why the provisional order may not be confirmed. It is because of the above attributes of a provisional order that I am of the view that orders granted by this court in the form of a provisional order, can hardly be final in their effect.”...,.

Just in case I am wrong in the conclusion on the first point in limine, I have decided to express my views on the question whether the order made by the learned Judge is an interlocutory order not appealable in terms of section 43(2)(d) of the High Court Act [Chapter 7:06] without the leave of the Judge who made it.

To determine the matter, one has to look at the nature of the order and its effect on the issues or cause of action between the parties and not its form.

An order is final and definitive because it has the effect of a final determination on the issues between the parties in respect to which relief is sought from the Court.

An order for discovery or extension of time within which to appeal, for example, is final in form but interlocutory in nature. The reason is that it does not have the effect of determining the issues or cause of action between the parties.

In this case, it was common cause that the order made by the learned Judge was a spoliation order.

When the applicant made the application for the order to the High Court it placed three issues of fact before it for determination;

(a) The first was that it was in peaceful and undisturbed possession of the property at the time the first respondent appeared on the scene.

(b) The second was that the first respondent deprived it of such possession unlawfully (without due legal process) and without its consent. In other words, the first respondent arrogated to himself the right to take property out of the possession of the applicant.

(c) The third was that it was entitled to be restored to the possession of the farm.

All these facts in issue had to be determined in favour of the applicant for the spoliation order to have been made in the applicant's favour. The issue between the parties was therefore whether there was spoliation. By making the spoliation order, the learned Judge confirmed that, on the affidavit evidence placed before her, she found that the three elements of spoliation had been established. The spoliation order was the authority for the restoration of the applicant to the possession of the property.

The finding of the fact in issue was a final and definitive determination of the fact in question. There would have been no other final determination of the issue of spoliation on the return day. A clear right in the applicant to be restored to the possession of the property would have been established.

A spoliation order cannot be granted on evidence of a prima facie right.

If the learned Judge was not satisfied, or was somehow doubtful that the affidavit evidence established a clear right in the applicant to be restored to the possession of the property, she should not have made the spoliation order.

Once the order was made, and fully executed, it was discharged. There would have been no order to discharge on the return day.

The fact that the order was in the form of an interim relief is irrelevant to the consideration of the question whether it is final or interlocutory. The issue of an order in the form in which it was applied for does not make the order itself a provisional order. For an order to have the effects of an interim relief it must be granted in aid of, and as ancillary to the main relief which may be available to the applicant on final determination of his or her rights in the proceeding.

It has been the realization of the fact that a spoliation order disposes of the issue, or portion thereof, between the parties that authorities say that it is a final and definitive order.

HERBSTEIN & Van WINSEN, “The Civil Practice of the Supreme Court of South Africa” 4ed, state…, that:

“A mandament van spolie is a final order although it is frequently followed by further proceedings between the parties concerning their rights to the property in question. The only issue in the spoliation application is whether there has been a spoliation. The order that the property be restored finally settles that issue as between the parties.”

In Pretoria Racing Club v Van Pietersen 1907 TS 687, the contention was that the spoliation order from which relief was sought on appeal was an interlocutory order not appealable without the leave of the Judge who made it. It was also argued that to allow an appeal from a spoliation order would render useless the remedy intended to be granted to the person despoiled.

Disposing of the argument, SMITH J, writing for the full bench on the Transvaal Provincial Division said…,:

“In order to decide whether such an order is final or not I think the test must be arrived at by considering what the object of the proceedings is as a matter of substance. See the judgment of ROMER LG in Re Hebert Reeeves & Co [1902] 1 Ch 29.

Now, the substantial matter in dispute in the present application was the right of the respondent to the present possession of certain property: if an act of spoliation was established then his right was clear.

That was the matter and the only matter decided by the learned Judge, the consideration that legal proceedings might be subsequently instituted to test whether the possession could be legally sustained appears to me to be foreign to the question at issue, and the order made was, in my opinion, a final order within the meaning of the Rules of Court.

We were pressed, on behalf of the respondent, to say that the order was interlocutory from a consideration of the consequences which would follow if an appeal from it was allowed. It was pointed out that if an appeal from a spoliation order is allowed the result will be to keep the matter in suspense so long that the remedy may become useless.

With regard to this argument I would say, in the first place, that, if the order is, in its nature, a final order, the court would not hold it to be otherwise merely because its execution might be stayed, and the remedy granted by it be delayed.”

Nienaber v Stuckey 1946 AD 1049 is authority for the principle that the right to the restoration of possession of the property must be established as a clear right and not a prima facie right before a spoliation order can be made. The right must not be open to doubt. At p1053-4 GREENBERG JA said:

“The learned Judge in the court below followed what was said by BRISTOWE J in Burnham v Neumeyer 1917 T.P.D. 630 at p 633, viz:

'Where the applicant asks for a spoliation order he must make out not only a prima facie case, but he must prove the facts necessary to justify a final order – that is, that the things alleged to have been spoliated were in his possession and that they were removed from his possession forcibly or wrongfully or against his consent.'

I agree with what was there said as to the cogency of the proof required. Although a spoliation order does not decide what, apart from possession, the rights of the parties to the property spoliated were before the act of spoliation and merely orders that the status quo be restored, it is, to that extent, a final order and the same amount of proof is required as for the granting of a final interdict and not a temporary interdict.”

The last case I want to refer to on the subject is Mankowitz v Lownthal 1982 (3) SA 758 (A).

When dealing with the question whether the court a quo was correct in awarding costs to the party in whose favour a spoliation order was made JANSEN JA adopted with approval the following statement of law…,:

“Now, a spoliation order is a final determination of the immediate right to possession. It may not resolve the ultimate rights of the parties but it is the last word on the restoration of possession ante omnia.

An application for spoliation is thus not an interlocutory application, and, save in special circumstances, the costs should follow the event, and should not be made to depend on the outcome of some other action or application even if such concerns the ultimate rights of the parties to the property or thing in dispute.”

It is clear from the authorities that the learned Judge in Nyasha Chikafu v Dodhill (Pvt) Ltd & Ors HH41-09 and the learned Judge President in T Nyikadzino v John Cameron Asher & Ors HH36-09 used the wrong test of considering the form of the order to determine whether it is final and definitive or interlocutory.

Many orders which are final in form are in fact interlocutory whilst some which are interlocutory in form are in fact final and definitive orders.

The test is whether the order made is of such a nature that it has the effect of finally determining the issue or cause of action between the parties such that it is not a subject of any subsequent confirmation or discharge.

In this case, the first respondent had the right to appeal to the Supreme Court against the spoliation order made by the learned Judge on 9 March 2009 without first obtaining the leave of the Judge.

The application is accordingly dismissed with costs.

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

HERBSTEIN Van WINSEN “The Civil Practice of the Supreme Court of South Africa, 4th Ed...,. states:“A mandamente van spolie is a final order although it is frequently followed by further proceedings between the parties concerning their rights to the property in question. The only issue in spoliation applicant ...

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

The appellants are appealing against the entire judgment of the High Court delivered on 24 May 2017 under judgment number HH329-17. That judgment granted the respondent a provisional spoliation order in the following terms:“TERMS OF THE FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order ...

“TERMS OF THE FINAL ORDER SOUGHT

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

1. The first, second, and third respondents be and are hereby interdicted from interfering in any manner with the applicant's business operations at the tuck shop situated at Gateway Primary School. Including, but not limited to barring her potential customers from buying from the tuck shop.

2. The first, second, and third respondents be and are hereby ordered not to unlawfully evict the applicant from the tuckshop at Gateway Primary School.

3. The first, second, and third respondents to pay costs at an attorney and client scale, the one paying and the others to be absolved.

INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order, the applicant is granted the following relief:

1. The first, second, and third respondents be and are hereby ordered to remove their additional locks at the tuck shop at Gateway Primary School upon service of this order and take all necessary steps to ensure that the applicant's peaceful and undisturbed occupation of the tuck-shop is restored failing which the fourth respondent be and is hereby authorised to remove the locks abovesaid.

2. The second applicant (sic) be and is hereby ordered to publicly, and, at an assembly, reverse the order he imposed on school pupils and teachers not to buy at the applicant's tuckshop at Gateway Primary School.

3. The applicant's legal practitioners are hereby given leave to serve the order on the respondents.”

The appeal is strenuously opposed by the respondent.

The facts giving rise to the appeal are, to a large extent, common cause. It is however convenient to give a brief resume of the material facts of this case at this juncture.

The undisputed facts are that the first appellant is a primary school whereas the second appellant is its headmaster and overall administrator. The third appellant is the school's Parents Association capable of suing and being sued in its own name. It assists in the smooth running of the school. Among other functions, it generally manages the tuckshop.

The third appellant leased out the school tuck shop to the first respondent as its statutory tenant sometime in 2011. The lease agreement was subsequently renewed from September 2016 to September 2017.

On 5 February 2017, the Chairman of the Parents Association Committee wrote to the first respondent giving her two months notice of its intention to terminate the lease agreement with effect from 6 April 2017. The letter reads:

“Dear Marinda

Notice of Termination of lease contract

We refer to the tuck shop lease agreement which was renewed in September 2016 expiring on 8 September 2017.

We regret to advise that after much deliberation and thought, the Parents Association Committee hereby gives you notice of their intention to terminate the lease agreement (without renewal) with yourself with effect from the end of the first term. Our notice period is therefore effective from 6 February until 6 April 2017.

We thank you for your tenancy over the many years with the Gateway Community as well as the rent payments that have always been on time.

We trust that this is sufficient notice for you to make the necessary arrangements. If you have any further queries, please do not hesitate to contact the undersigned.”

Aggrieved by the intended termination of her tenancy of the tuckshop, the first respondent consulted her lawyers who took the view that the notice was a legal nullity.

They, accordingly, wrote to the third appellant, on 5 April 2017, challenging the lease termination on the grounds that the notice period was inadequate and that it did not provide good and sufficient reasons for the termination.

Unperturbed by the threatened legal challenge to its notice to terminate the lease agreement, the third appellant proceeded to execute its cancellation of the lease agreement in terms of its written notice of 5 February 2017.

The validity of the termination of the first respondent's lease, and tenancy of the disputed property, is hotly contested.

It is however common cause that schools closed on 6 April 2017 and the parties proceeded on end of term school holidays, during which period the tuckshop was closed.

The point of departure is the circumstances surrounding the closure of the tuck shop and its reopening at the end of the school holidays in May 2017.

The first respondent's version, in her founding affidavit, is that, at the end of term she locked her tuckshop and went away without any event. During the holidays, she fully restocked her tuck shop in anticipation of the reopening of the school. Upon her return, on 9 May, at the end of the school holidays, she unlocked the tuckshop only to discover that the second respondent had issued orders banning her customers, mainly teachers and students, from buying anything from the tuck shop. Guards were posted at the tuckshop to enforce the ban.

On 10 May 2017, she found herself locked out of the tuckshop.

Additional locks had been placed on the entrance door by the appellants acting in concert and common purpose.

It was her case, that, by locking her out, the respondents were unlawfully violating her peaceful and undisturbed possession of the tuck shop hence her urgent application for a provisional spoliation order for relief.

On the other hand, the respondents, in their opposing affidavit, deposed to by the third appellant's Chairman, one Justice Marwisa, denied ever locking the first respondent out of the tuckshop as alleged or at all.

He deposed that when given notice of termination of the lease agreement, the first respondent agreed and voluntarily cleared the tuckshop and left without any problem on 6 April 2017.

Accordingly, he denied that the first respondent was in peaceful and undisturbed possession of the tuckshop when the true owners of the tuck shop, Gateway Trust, recovered possession of the tuck-shop.

In short, the appellants case is that the first respondent voluntarily surrendered possession of the tuckshop to the lessor.

The learned judge in the court a quo believed the first respondent and disbelieved the appellants.

He found in her favour that she was in peaceful and undisturbed possession of the tuck shop prior to the unlawful dispossession, much to the chagrin of the appellants - hence this appeal.

The appellants raised the following grounds of appeal:

1. The learned judge in the court a quo erred at law and in fact in failing to find that the first respondent was not in peaceful and undisturbed possession of the tuckshop at the time of the alleged closure of the tuck shop. This requirement of spoliation was not established.

2. The learned judge in the court a quo erred at law in finding that the deprivation of the tuckshop amounted to unlawful deprivation since the first appellant was given notice of termination of the lease.

3. In the alternative, the learned judge in the court a quo grossly misdirected himself at law in failing to exercise his discretion not to grant the order sought given the circumstances of the matter that the continued operation of the tuckshop was not in the best interest of the children.

Although the appellants raised three (3) grounds of appeal, there is, in reality, one cardinal issue for determination.

The primary issue advanced for determination is whether or not the respondent was in peaceful and undisturbed possession of the tuckshop prior to the alleged unlawful dispossession.

The last two grounds of appeal are mere make-weights which add no value or cogency to the appeal.

Although there are apparent material disputes of fact, no one has complained that they were incapable of resolution on the basis of the papers filed of record.

The learned judge in the court a quo was therefore correct in disposing of the matter before him on the basis of the papers filed of record.

While preparing this judgment, it however occurred to me that a vital legal issue upon which the resolution of this appeal revolves was omitted. The crisp issue omitted for consideration is:

Whether an interdict having the effect of a final order can be sought through a provisional order?

Both counsel for the appellants and the first respondent have since filed useful supplementary heads of argument at the court's special instance and request.

They are agreed, that, a spoliation order, being a form of a final interdict, cannot be granted as a provisional order. It can only be granted as a final order.

Undoubtedly, both counsels are correct in their appreciation of the law in this respect.

The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368.

That case is authority for the proposition that a spoliation order, being a final and definitive order, cannot be granted as a provisional order.

That being the case, it follows, that, the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.

Consequently, the court a quo also erred, and fell into grave error, when it granted the first respondent a provisional spoliation order contrary to the dictates of the law.

While admitting that the provisional order granted by the court a quo is fatally defective, the first respondent has implored this Court to come to its rescue by resort to the court's powers under section 22(1) of the Supreme Court Act [Chapter 7:13] in the interests of justice.

The relevant parts of the section relied upon provide as follows:

“22 Powers of Supreme Court in appeals in civil cases

(1) Subject to any other enactment, on the hearing of a civil appeal, the Supreme Court —

(a) Shall have power to confirm, vary, amend, or set aside the judgment appealed against or give such judgment as the case may require;

(b) May, if it thinks it necessary or expedient in the interests of justice —

(i)…,.

(ix) Take any other course which may lead to the just, speedy, and inexpensive settlement of the case;”

On a proper reading of section 22 of the Supreme Court Act, it is clear that it confers no power of substitution on the court. It can only confirm, vary, amend, or set aside the judgment appealed against or give such judgment as the case may require.

The power “to give such judgment as the case may require” is in my view, not an open cheque for the court to go on a frolic of its own giving any judgment it desires.

That power is confined to what it is authorised to do under section 22 of the Supreme Court Act.

As the power of substitution is not given under section 22 of the Supreme Court Act, the court cannot exercise such power. If it does, it acts without jurisdiction.

That being the case, this court cannot substitute a final order for a provisional order.

By the same token, both the court a quo and this Court cannot give the respondent a relief that she did not ask for in the court a quo.

It is now settled law, that, a court has no jurisdiction to determine issues not placed before it because it is bound by the pleadings. It cannot go on a frolic of its own: see Nzara & Ors v Kashumba NO & Ors SC18-18…,.

Section 22(1)(b)(ix) of the Supreme Court Act is a procedural section which does not give any substantive relief.

Reliance on it for the granting of a final order, in place of the provisional spoliation order granted by the court a quo, is therefore misplaced and untenable at law.

In the final analysis, the urgent chamber application, being fatally defective, the appeal can only succeed.

It is accordingly ordered that:

1. The appeal succeeds with costs.

2. The whole judgment of the court a quo be and is hereby set aside, and, in its place, the following be substituted:

“The urgent application for a provisional spoliation order be and is hereby dismissed with costs.”

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.

At the conclusion of the hearing in this matter, the court issued an order in these terms:

1. The appeal be and is hereby allowed with costs;

2. The judgment of the court a quo be and is hereby set aside;

3. The matter is remitted to the court a quo for it to determine the case that was before it; and

4. The matter is to be placed before a different judge for determination.

The first and second respondents have requested full reasons for this order, and these are they.

FACTUAL BACKGROUND

The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.

The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.

In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.

The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.

In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.

The order reads as follows, in the relevant part:

“IT IS ORDERED THAT:

1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.

2….,.

3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.

4….,.”

Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.

In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.

In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).

The court a quo held that it was proper that the first respondent be restored to the farm.

The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.

The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.

The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.

The court then granted the order sought by the first and second respondents.

Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:

1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.

ISSUE FOR DETERMINATION

The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:

Whether or not the court a quo erred in determining a matter that was not properly before it

The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.

In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.

THE LAW AND APPLICATION THEREOF TO THE FACTS

It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.

Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:

“TERMS OF FINAL ORDER SOUGHT

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

1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.

2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.

INTERIM RELIEF GRANTED

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

3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.

4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.

5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.

6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.

7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”

Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.

Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu....,.

In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:

“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”

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Law Portal
Zimbabwe

Interim Interdict or Final Order re: Spoliation or Mandament van Spolie Proceedings

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

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Law Portal Zimbabwe

Interim Interdict or Final Order re: Spoliation or Mandament van Spolie Proceedings

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: MALABA DCJ

Appealed SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

Appealed SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

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Law Portal
Zimbabwe

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA