Micah Nyoni v Westwood Industrial (Pvt) Ltd and Deputy Sheriff N.O.

### Preamble
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HB 57/21 ‘B’
HC 123/21
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MICAH NYONI

Versus

WESTWOOD INDUSTRIAL (PVT) LTD

And

DEPUTY SHERIFF N.O.

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 26 MARCH 2021

Urgent application

N. Moyo, for the applicant

DUBE-BANDA J: This is an urgent application. This application was filed in this court on 12 March 2021. The application was placed before me and, without hearing the parties, I directed that “this application is not urgent and it is accordingly removed from the roll of urgent matters.” Subsequent to my directive, applicant’s legal practitioners addressed a letter to the Registrar, the letter is worded as follows:

Re: Micah Nyoni V Westwood Industrial (Pvt) Ltd and Anor HC 123/21, X REF 2003/20

The above matter refers.

We acknowledge receipt of the comments made by his Lordship, Dube-Banda, regarding the above referred matter. We hereby respectfully request audience with his Lordship for clarity and direction on the said comments.

It became apparent to me, that what applicant requires are the reasons for the directive I gave. These are the reasons.

In this urgent chamber application, the applicant seeks a provisional order drawn in the terms:-

Final order sought

It is ordered:

That respondents be and are hereby permanently interdicted from interfering with the operations and affairs of the applicant.

Interim relief granted

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

That 1st respondent and those claiming through it be and are hereby ordered to immediately vacate Tiberus 14 and restore occupation and possession to applicant.

That 1st respondent is hereby interdicted from interfering with the operations of applicant.

Service of the provisional order

Service of this provisional order and application shall be made by the Deputy Sheriff or officers of the ZRP upon respondents personally or upon any other responsible person who will be found at the place of service.

Applicant calls his application, an urgent application for mandament van spolie (spoliation) and interdict. This court looks at the substance rather than what a litigant choses to call his application, or its form. See: Econet (Pvt) Ltd v Minister of Information, Posts and Telecommunications 1997 (1) ZLR 342 at 344-345. Looking and considering its substance, it is clear that this is an application for a spoliation order. There is nothing to interdict, because by his own version, applicant has already been evicted from the property. The averments in the certificate of urgency, the founding affidavit, and the relief sought speak to spoliation. Spoliation is a possessory remedy. The objects of spoliation are as follows: to restore the possession of the things possessed; to put a stop to unlawfully taking the law into one’s own hands; to protect the person who apparently has a possessory right and to prevent disturbance of public peace. See: Botha & Anor v Barrett 1996 (2) ZLR 73 (S).

In the certificate of urgency, it is contended that; respondents have unlawfully evicted applicant from the said Tiberius 14 on the strength of a court order granting 1st respondent the power to evict applicant from Tiberius 32 and 33 whereat applicant has never been in occupation; further, a person who unlawfully deprives the other of his possession of property has no right to such property and law allows for an urgent relief to despoil the property and restore it to a person who can lawfully possess same; applicant has a right to seek from this court for spoliation. In the founding affidavit, it is averred that; I am advised and verily believe that for such an application to succeed I must allege and prove that: I was in peaceful and undisturbed possession of the property; that first respondent deprived me of possession forcibly, wrongful and without my consent. These requirements for spoliation.

First, the eviction complained about was carried out by the Sheriff of this court. The Sheriff was executing an order of this court. The objects of spoliation, are inter alia to put a stop to unlawfully taking the law into one’s own hands; and to prevent disturbance of public peace. It cannot be said that the Sheriff when executing a court order, took the law into his own hands. My view is that an eviction carried out by the Sheriff, executing a court order cannot be a cause of action for spoliation. Again, even if applicant is correct that he was evicted from Tiberius 14, not Tiberius 32 and 33, still this is not a matter that can be resolved through an urgent chamber application.

Second, applicant seeks a provisional order, it is incompetent and bad at law to seek a provisional order in an application for spoliation.  A spoliation order being final in effect cannot be granted as an interim order on the evidence of a prima facie right. See: Blue Range Estates P/L v Muduvisi 2009 (1) ZLR 368; Constantine Guvheya Dominic Chiwenga v Marry Mubaiwa SC 86/20.

Third, the order sought by the applicant is incompetent. Although the applicant characterises the order he seeks at this stage as interim relief, it is in substance a final order. Applicant seeks an order that the 1st respondent and those claiming through be ordered to immediately vacate Tiberus 14 and restore occupation and possession to applicant. Once this order is granted, it restores the property to the applicant, and as such finally settles the issue of possession between the parties. The effect of the “interim” relief sought is final. Once 1st respondent is evicted, applicant would have achieved his desires, there would be no dispute for resolution on the return date. This is a final order disguised as an interim relief. This court cannot grant a final order on proof of a prima facie right. See: Chikafu v Dodhill (Pty) Ltd and Others SC 28/09; J.C. Conolly and Sons (Private) Limited v R.C. Ndhlukula the Minister of Lands and Rural Resettlement SC 22/18; Blue Range Estates P/L v Muduvisi 2009 (1) ZLR 368.

It is for the above reasons that I directed that this matter is not urgent and removed it from the roll of urgent matter.

Advocate S.K.M. Sibanda and Partners, applicant’s legal practitioners