Bradha Engineering (Pvt) Ltd v Godwin Gomwe & 6 Ors and City of Harare

### Preamble
1
HH 119/21
HC 4973/15
---------


BRADHA ENGINEERING (PVT) LTD

versus

GODWIN GOMWE

AND

FINAL HOPE HOUSING COOPERATIVE

AND

JOSIAH TONGOGARA HOUSING COOPERATIVE

AND

TAWANDA (TI)

AND

BRIGHT MUNEMO

AND

MATEYO D

AND

CITY OF HARARE

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 21 September 2020 & 18 March, 2021

Opposed application

RT. Mutero, for the applicant

1st – 6th respondent in default

R. Mhlanga, for the 7th respondent

MANGOTA J: 21 September, 2020 was the return date for consideration of the provisional order which the court entered for the applicant on 10 June, 2015. I considered the application on the mentioned date following submissions which the parties made in regard to their respective cases. I confirmed the provisional order as I was moved to do by the applicant.

On 10 October, 2020 the seventh respondent addressed a letter to the Registrar of this court. It requested for reasons for my decision. It indicated that it wanted to appeal the same. These are they:

The application which the applicant filed through the urgent chamber book was essentially one for a spoilatory relief. It alleged, in the application, that:

the seventh respondent which is established in terms of the Urban Councils Act [“the Act’] allocated to it, through the Minister who is responsible for the Act, the piece of land which is known as the Remainder of Warren Park depicted on General Plan TPX 1352 [“the property”],

it was in peaceful and undisturbed possessing of the property- and

the respondents despoiled it of the property.

The applicant couched its draft order in the following terms:

“Terms of the final order

That you show cause why an order in the following terms should not be granted:

The interim relief granted by this court on the .. day of .... 2015 be and is hereby confirmed.

Interim relief

Pending the return day, it is hereby ordered that:

Applicant and those claiming possession through him (sic), is hereby declared to have peaceful and undisturbed possession of stand numbers 8736 to 8930 being 196 stands of the Remainder of Warren Park, situated in Westlea Township along Bulawayo and Tynwald Road, depicted on General Plan TPX 1352.

1st to 6th respondents are hereby ordered to return applicant status quo ante prior to this spoliation such that applicant is returned her (sic) peaceful, quiet and undisturbed possession, occupation and use of stand numbers 8736 to 8930 being 196 stands of the Remainder of Warren Park situated in Westlea Township along Bulawayo and Tynwald Road depicted on General Plan TPX 1352.”

The first respondent did not file any notice of opposition to the application. My

assumption is that, because he chose to remain out of court, he intends to abide by my decision. The remaining respondents opposed the application.

The second to the sixth respondents stated that the applicant did not have title to the property which formed the foundation of its application. They alleged that the property belonged to the seventh respondent with whose knowledge they were in occupation of the property. They stated that they were in the process of regularizing their stay on the property with the seventh respondent.

The seventh respondent’s averments were that it allocated 100, and not 196, stands to the applicant. It claimed that it allocated the remaining 96 stands to three co-operatives. All the six respondents moved me to dismiss the application with punitive costs.

An applicant for a spoliatory relief must allege and prove, on a balance of probabilities, two matters. These are that:

he was in peaceful and undisturbed possession of the property which forms the subject/foundation of his application – and

he was unlawfully dispossessed of the property by the respondent.

The law which relates to the relief of mandament van spolie is simple and straight- forward. It discourages self- help. It encourages people to take possession of whatever property they believe to belong to them through due process. So strict is the law which relates to spoliation that it allows even a thief who has been despoiled by the owner of a thing which he possesses to approach the court and move it to restore the thing which he has stolen to him.

Spoliation does not concern itself with ownership in a thing.  It concerns itself with possession and/or occupation and the means which the person who owns the thing employs to regain possession or occupation of it.

Precedent highlights the above –stated position in a clear and undiluted manner. It is for the mentioned reason, if for no other, that Innes CJ. Stated as far back as 1906, in Nino Bononov De Lange [1906 TS 120 at 122] that:

“It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so the court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute”.

The sentiments of the learned Chief Justice were aptly achoed in Chisveto v Minister of Local Government and Town Planning, 1984 (1) ZLR 248 (H) at page 250 A – wherein the court remarked that:

“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 reinforced until such time as a competent court of law assesses the relative merits of the claims of each party....The lawfulness or otherwise of the applicant’s possession of the property does not fall for consideration at all. In fact the classic generalisation is sometimes made that in respect of spoliation actions ...even a robber or thief is entitled to be restored possession of the stolen property”.

Chidyausiku CJ. threw his weight into the subject of maundament van spolie when he stated, in Chikafu v Dodhill (Private) Limited 2015 SC 28/09 that:

“...in an application for (a) spoliation order an applicant does not have to prove some reasonable

or plausible claim to the property, let alone the legality or otherwise of his possession of the property....”.

It is in the context of the above –cited dicta that a determination shall be made to the case of the applicant. For it to succeed, it must prove its case, on a balance of probabilities. It is in the driving seat. The law which states that he who alleges must prove applies to it in a very considerable measure.

Annexure A which the applicant attached to its founding papers is very pertinent. It appears at page 18 of the record. It resonates well with paragraphs 14,15 and 16 of the founding affidavit. It shows that, prior to 21 February, 2013- the date of the letter – the applicant:

unsuccessfully applied in terms of s 49 (3) of the Regional, Town and Country Planning Act to the seventh respondent;

it proposed that the property which the seventh respondent reserved for a recreational site be changed into that of a church, a cretche and residential stands;

the seventh respondent turned down the applicant’s proposal

the applicant appealed the decision of the seventh respondent to the Minister under whom the operations of the seventh respondent fall- and

on 18 February, 2013 the Minister approved the application giving details of the approved plan in the following order:

Approval date – 18/2/13

Property description – Portion of the remainder of Warren Park;

Current use – Public open space and recreational

Proposed use – Residential

Lay out details – Plan No. TPX 1352

It is evident, from the foregoing, that the Minister of Local Government, Urban and Rural Development gave possession of the entire property to the applicant following the appeal which it filed with him. Reference is made in the mentioned regard to Annexure A which the applicant attached to the application. The Minister, it is clear, set aside the decision of the seventh respondent when he ruled in favour of the applicant.

The applicant’s statement is that the property which the Minister allocated to it at the time that he considered its appeal comprised 292 stands. It states that in 2013, the property was reduced to 196 stands. The property, according to it, comprises stand 8736 to 8930.

That the second to the sixth respondent despoiled the applicant of its property requires little, if any, debate. They literally invaded the property of the applicant. The defence which they raised shoots them in their foot. They confuse ownership with possession or occupation. The two concepts are not synonymous. They are separate and different from each other.

The five respondents’ statement which is to the effect that they are occupying the ninety-six (96) stands with the blessing of the seventh respondent does not hold. A fortiori when the seventh respondent states, in clear and categorical terms, that it did not allocate the ninety –six stands to them. Their assertion which is to the effect that they are in the process of regularising their stay on the ninety-six stands says it all.

It is trite that one can only regularise what is irregular. The respondents would not have embarked upon the exercises of regularising their stay on the ninety –six stands if their occupation of the same was with the knowledge and blessing of the seventh respondent. They are illegally occupying the ninety-six stands. They cannot, therefore, be allowed to continue to live outside the law. Their case stands on nothing. It is without merit.

My above-mentioned finding is in sync with the position which the five respondents took of the application. They received the notice of set down of the application and they chose not to attend court on the return date. Their conduct does not resonate with that of a person who has the conviction that he is in lawful occupation of another’s property. It is akin to that of a thief who wants to reap where he has not sown any seed.

The application is not so much against the seventh respondent as it is against the second to the sixth respondents who despoiled the applicant of its property. The seventh respondent appears not to have been the concern of the applicant. It appears to have cited the second respondent to confirm, as it did, that the second to sixth respondents were illegally occupying the applicant’s property.

The subtraction of the second to the sixth respondents from the application leaves the applicant and the seventh respondent in the equation. The seventh respondent’s statement is that it allocated one hundred, and not one hundred and ninety-six, stands to the applicant. It places reliance on two matters in the mentioned regard. These comprise:

the consent order which the applicant and it invited the court to endorse on 2 February, 2015 under HC 705/15 - and

Annexure C which it addressed to the applicant on 8 July, 2014.

The applicant’s assertion is that HC 703/15 relates to land which is different from the ninety-six stands which are the subject of its dispute with the seventh respondent. It insists that the ninety-six stands are part of the one hundred and ninety-six stands which it took possession of when the total number of stands was reduced from two hundred and ninety-two to one hundred and ninety-six in 2013.

I mention, in passing, that it was out of the applicant’s magnanimity that it agreed to have the stands which the Minister conferred possession of to it on 18 February, 2013 reduced to one hundred and ninety-six. That the applicant retained the one hundred and ninety –six stands requires no debate. It is a clear and straight forward matter.

Annexure C which the seventh respondent addressed to the applicant on 8 July, 2014 is in contra-distinction to Annexures EI and E2 which the seventh respondent wrote to the applicant on 19 August, 2014. The annexures respectively appear at pages 26 and 27 of the record. They advise and invite the applicant to pay fees for:

water reticulation designs for stands 8736-8930 Warren Park Township-and

water and sewer connection into existing infrastructure for stands 8736-8930.

It is evident, form the foregoing, that the seventh respondent did not invite the applicant to pay fees for stands 8738 to 8837 as it alleges. It requested the applicant to pay fees for stands 8736 to 8930. The stands for which the applicant was invited to pay fees constitute the whole of the land the layout details of which are referred to as Plan Number TPX 1352.

The seventh respondent’s letter of 8 July, 2014 appears to have been an attempt by it to renege on the initially agreed plan. Its letters of 19 August 2014, annexures EI and E2, restored the parties’ position to the status quo ante the letter of 8 July, 2014.

The annexures give to the applicant one hundred and ninety-six, and not one hundred, stands. The observed matter remains in sync with the observations of Mtshiya J. who stated in HC 4973/15 that:

“notwithstanding the position taken by the seventh respondent, the papers before me confirm that General Plan TPX 1352, which the applicant worked on, includes the 96 stands. The seventh respondent accepted payments from the applicant in respect of fees required for servicing of all the stands covered under General Plan TPX 1352. The receipts indicate that payments were indeed in respect of all the stands coved under General Plan TPX 1352, namely stands 8736 – 8930 (ie. inclusive of stands 8838 to 8930)”

It is apparent that the seventh respondent did not harbour any reservations in respect of Mtshiya J’s above-stated findings. If it did, it would have appealed the decision of Mtshiya J. The fact that it did not appeal evinces its agreement with the findings or pronouncements of the Honourable Judge.

The seventh respondent cannot be allowed to change the position which it accepted as for back as 10 June 2015 at this eleventh hour. It is encouraged to learn to live with the reality which continues to stare it in its face. It is being economic with the truth when it alleges, as it does, that it allocated one hundred stands to the applicant. Its statement in the mentioned regard is not supported by any evidence. Its reference to the consent order, HC 703/15, cannot assist it. HC 703/15, as the applicant correctly states, relates to land which is outside the dispute of the applicant and the seventh respondent. The applicant’s uncontroverted statement is to the stated effect.

The applicant proved its case on a balance of probabilities. The provisional order is, therefore, confirmed as prayed in the draft.

Mhishi, Nkomo legal practice, applicant’s legal practitioner

Kanokanga & Partners, 7th Respondent’s legal practitioners