Big Diagnostics (Private) Limited v Medical Investments Limited and Lechlake Investments (Private) Limited

### Preamble
1
HH 485-25
HCH 4060/25
---------


EX TEMPORE

BIG DIAGNOSTICS (PRIVATE) LIMITED

versus

MEDICAL INVESTMENTS LIMITED

and

LECHLADE INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE,18 & 20 August, 2025

Urgent Chamber Application -Spoliation

G R J, Sithole, for the Applicant

D Tivavar, for the 1st Respondent

W Nyamakura, for the 2nd Respondent

MAXWELL J:   Applicant approached the court on an urgent basis seeking the remedy of spoliation.  It is a remedy that is designed to restore at once possession that has been unlawfully deprived. The key words are possession and unlawful deprivation. Applicant must show that he was in peaceful and undisturbed possession of the thing and that he was unlawfully deprived of such possession.

Reference is made to the following cases.

Grandwell Holdings (Pvt) Ltd v Minister of Mines and Mining Development and Others HH 193/16.

Kama Construction (Pvt) Ltd v Cold Comfort Farm Cooperative & Others 1999(2) ZLR 19 (S).

Botha & Another v Barret 1996(2) ZLR 73(S).

Landela Safaris Adventure (Pvt) Ltd v NRZ & Ors HH 160/24.

Applicant stated the following facts that are pertinent to possession.

Paragraph 4 of the notice on p 3.

“At all material times during the existence of the business partnership and immediately prior to the filing of this application, the applicant was responsible for the business premises, operations, and management of the affairs of the second respondent.  Its employees, agents and directors had full access and control of the second respondent.”

Paragraph 8 same p 3.

“On August 12 2025, ostensibly acting on the basis of the unconfirmed and unenforced arbitral award, the first respondent resorted to self-help, and proceeded to lock out and bar the applicant its employees, and agents from the business and premises of the second respondent.  Much to the applicant’s consternation to affirm the illegality of its actions, the first respondent engaged the services of bouncers, who were called to give effect to this unlawful position.” (underlining for emphasis)

In the Founding Affidavit para 19 on p 16 states.

“First respondent’s agents and personnel took over the techlade business premises around 10.00 am on 12 August 2025 completely changed locks and keys and refused all personnel connected to applicant access to the building.” ( underlining for emphasis)

Paragraph 41 of the Founding Affidavit.

“Applicant has been in full peaceful and undisturbed possession of the business premises within the Avenues Clinic wherein the applicant has been operating its business affairs.  This possession was exercised on behalf of and for the benefit of the second respondent, whose operations are inextricably linked to the applicant’s management.”

Paragraph 43 of the Founding Affidavit

“The first respondent deprived us of the possession and occupation of the business and its premises forcibly and wrongly against our consent.”

Applicant also narrated how it sought help from the police who were also barred from the premises by named persons. Correspondences aimed at trying to resolve the impasse is attached as annexures, as well as pictures showing the change of locks.

In opposing the application, respondents raised points in limine on the manner of service, the relief sought and the dirty hands principle.On the merits their opposition is centred on the fact that second respondent is the lessee to the premises in question and applicant is only entitled to access the premises, only because the tenant, second respondent allowed it to access it. Further that as applicant is not the tenant to the premises, it has never had any right to possession and has never been in possession of the premises. Also, that as lawful occupier the second respondent is entitled to determine who it allows on its premises and who it does not.

It is their position that following the termination of applicant’s participation.  Applicant would no longer be granted access to the second respondent.

Analysis of the Issues

Issue of service-where a new matter is instituted, service must be effected on the litigant, unless there has been prior advice or notice that in any and all litigation the legal practitioners are to be served.

The issue of the wrong address in circumstances of urgency would be material if default is granted. In any event, service on the proper address was subsequently effected after the matter was postponed.

That the relief sought is final in nature is unavoidable. Spoliatory relief is final in nature. In Amler’s Precedents of Pleadings , 3rd ed., p. 276, it is stated that

‘ relief by way of the mandament of spolie is seldom claimed in action proceedings because of the usual urgency of the matter. A spoliation order is a final order and since the factual dispute may not be such that it can be solved in application proceedings, action proceedings may be indicated in certain circumstances.”

Dirty hands principle – I am of the view that it is not relevant to spoliation proceedings.  That is why even a thief can succeed if dispossessed unlawfully despite having obtained the thing unlawfully. In Karori (Pvt) Ltd & Another v Brigadier Mujaji HH23/2007 it is stated

“ It does not seem to me that spoliation can be estopped on the basis of the dirty hands doctrine, for to do so would be to shield the despoiler from the consequences and reward him for his alleged usurpation of the due process.”

I do not find merit in any of the preliminary points and they do not succeed.

Merits of the matter

I find that respondents are conflating issues of possession and the rights to possess.

It is trite that in spoliation proceedings the rights of the parties are not considered.  What is sought is the restoration of the status quo ante.  The lawfulness or otherwise of the possession is not an issue in spoliation proceedings see Nyamande v Mahachi SC 45/23.

Whilst a lawful occupier is entitled to determine who it allows on its premises and who it does not, if there is a person on the premises it does not want to allow thereon, it must not resort to self help to remove same.

The following undisputed facts confirm that applicant was in occupation.

The change of locks and keys.

Employment of bouncers.

Barring of access to applicant’s agents and employees.

The acts highlighted confirm unlawful dispossession.

I am satisfied that applicant was in peaceful and undisturbed possession of the business premises and operations of the second respondent.

I am also satisfied that applicant was despoiled by the change of locks and employment of bouncers.

Accordingly, applicant has made a case warranting the remedy of mandament van spolie.

The application will be granted in terms of the draft order.

The issue of costs was not motivated in oral submissions.  This case is akin to an acrimonious divorce.  I am inclined to grant costs on an ordinary scale.

The application be and is hereby granted with costs.

Maxwell J

Scanlen & Holderness, Applicant’s Legal Practitioners.

Gill Godlonton & Gerrans, first Respondent’s Legal Practitioners.

Muza Attorneys, second Respondent’s Legal Practitioners.