Redan Petroleum (Private) Limited Versus Bioline Petroleum (Private) Limited AND Francis Masvikeni AND MRS L Masvikeni

### Preamble
1
HH 463-2012
HC 14123/12
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REDAN PETROLEUM (PRIVATE) LIMITED

versus

BIOLINE PETROLEUM (PRIVATE) LIMITED

and

FRANCIS MASVIKENI

and

MRS L MASVIKENI

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 14 December, 2012

Urgent Chamber Application

T Nyamasoka, for the applicant

F Mahere, with her S Gutsa, for the respondents

MUTEMA J:	This is an application for a spoliation order. The bare bones of the matter are these:

The first respondent owed the applicant US$149 000-00. That debt has since ballooned to US$200 000-00. On 31 January, 2012 the applicant and first respondent concluded a compromise agreement in an endeavour to restructure the debt. The salient terms of the agreement were that effective 1 February, 2012, the applicant would assume the management of the retail fore court of the service station at stand 96A Norton Road, Norton which is under lease by the first respondent; the applicant would pay the first respondent US$0,01c per litre from the site margins at the end of each month based on the previous month’s traded values; the applicant would be responsible for the salaries and wages of the fore court staff at the service station; and the balance of dealer margins after paying all trading expenses and the first respondent’s overdraft facilities would go towards settling the applicant’s debt owed to it by the first respondent. This was done with the consent of the first respondent’s landlord.

The applicant took over the running of the service station and invested in re-branding it and procured staff uniforms. On 30 November, 2012 the applicant received a letter from the first respondent’s co-director, the second respondent, purporting to terminate the agreement. The third respondent is the other director. On 2 December, 2012, the second respondent      de-branded the service station by repainting it and removing the applicant’s colours and logo and instructing fore court employees not to wear the applicant’s uniform anymore.

The applicant’s then legal practitioners wrote to the respondents warning them not to take the law into their own hands. The warning fell on deaf ears. The third respondent took over the running of the finances of the service station contrary to the terms of the compromise agreement and on 6 December, 2012 the respondents denied the applicant permission to make fuel deliveries at the service station arguing that no more of the applicant’s products were to be sold from the service station.

It is against the foregoing backdrop that on 10 December, 2012 the applicant filed this urgent chamber application seeking restoration of the status quo ante pending the court’s determination on whether the compromise agreement between the parties is valid and still subsisting.

The respondents opposed the application. The gist of the opposition can be summarised as follows:

At the time the applicant filed this application, it was not in peaceful and undisturbed possession of the service station. The first respondent also remained in de facto and de jure possession of the service station during the subsistence of the agreement in terms of the lease agreement with the landlord. Also, the first respondent’s employees operated the service station with the first respondent using the offices at the service station. The applicant’s role was to manage aspects of the fuel supply and distribution in accordance with the compromise agreement. The applicant was also entitled to brand the property. The applicant’s peaceful and undisturbed possession of the property was under threat as from 12 October, 2012 when the first respondent wrote a letter indicating that unless the applicant complied with clause 3 of the agreement, Mr and Mrs Rukuni, who had provided collateral for a debt owed by the first respondent, would take over management and possession of the service station. Another letter dated 19 October, 2012 giving the applicant an ultimatum to comply with clause 3 of the agreement was to the same effect that the applicant’s possession was anything but peaceful and undisturbed. On the basis that the applicant was not in peaceful and undisturbed possession of the service station alone, the application ought to be dismissed. Further, it is argued that restoration of status quo ante is no longer possible because Petrotrade has now taken over the service station. Also, so the argument goes, the relief sought is incompetent because it is a prohibitary order which seeks to enquire into the merits which is inconsistent with a spoliation order.

In order to comprehend the peroration of respondents’ argument supra, regarding the prohibitary interdict, herewith is the relief in relevant part, being sought in the draft order:

“Terms of the Final Order Sought

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

That it be and is hereby declared that compromise agreement between the applicant and the first respondent is valid and still subsisting.

The applicant, its representatives, employees, invitees and assignees are entitled to remain in peaceful undisturbed possession and use of a certain immovable property being a service station situated at stand number 96A, Norton Road, Norton until such a time – should it become necessary as a competent court issues an eviction order or any order having final effect against the applicant in favour of the respondents.

That the respondents and all other persons acting through them or on their instructions be and are hereby interdicted from summarily entering upon or remaining on the portion occupied by the applicants at stand number 96A, Norton Road, Norton or in any way threatening or interfering with the normal business and operations of the applicants, their employees, representatives, invitees, and assignees without a valid court order.

That the respondents shall pay the costs of this application on a legal practitioner-client scale.

Interim Relief Granted

Pending confirmation or discharge of the final order the applicant (sic) be and are hereby granted the following interim relief:

The respondents and all other persons acting through them, be and are hereby interdicted and ordered not to interfere nor disturb the applicant’s peaceful possession of a certain immovable property being a service station situate at stand 96A, Norton Road, Norton without a valid court order.

To that effect, the respondents shall within 24 hours of this order hand over to the applicant, all the keys necessary for the applicant to gain access into the safe and the office for purposes of conducting its business, as well as restoring the service station to the state it was prior to the 30th November 2012.

Failing clause 2 above, the Sheriff or his lawful deputy together with his assistance be and are hereby entitled and authorised to ensure that the applicant retains possession of the service station forthwith.

As a result, all expenses that will be incurred by the applicant in restoring the service station to its prior state shall be levied and payable by the respondents upon presentation of relevant receipts and invoices.”

Although the respondents’ conduct seems to be imbued with some semblance of spoliation, an order of spoliation is not the proper remedy for the wrong alleged by the applicant. In the case of Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-operative & Ors 1999 (2) ZLR 19 (SC) which I find to fall on all fours with the present scenario, the appellant company had entered into an arrangement with the trustees of the respondent co-operative with a view to restoring the co-operative to financial viability. It became involved in the management of the farm run by the co-operative and in various of the farm’s activities. A dispute later arose and the arrangement was terminated by the co-operative. The appellant sought a spoliation order from the High Court, restoring it to peaceful possession of the farm. A provisional order was granted, but was not confirmed. The appellant appealed against the refusal to grant the spoliation order.

Dismissing the appeal, McNALLY JA at p 22  held:

“In my view, the confirmation of the order was properly refused in the court a quo. I come to this conclusion because I consider that a spoliation order was not the proper remedy for the perceived wrong alleged by the appellant. The real complaint of Kama Construction is that it alleges that the respondents are in breach of the alleged management agreement. They should have sued for specific performance of the alleged contract, together with interlocutory relief in the form of an interdict, if they believed such relief was available.”

The learned judge of appeal cautioned that while the concept of possession is widely defined to include quasi-possession or juridical possession (Possessio juris) one must be careful not to overstate the availability of spoliation proceedings in regard to quasi-possession.

The learned judge of appeal relied on what ZULMAN J said in Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 (1) SA 616 (W) at 623 B-C where it was said:

“If the protection given by the mandament van spolie were to be held to extend to the exercise of rights in the widest sense, then rights such as the right to performance of a contractual obligation would have to be included, which would be to extend the remedy beyond its legitimate field of application and usefulness.”

He also relied on what THIRION J said at 190 G-H in Zulu v Minister of Works, Kwazulu & Ors 1992 (1) SA 181 (D):

“To hold otherwise, would in effect mean that the court would grant an order for specific performance of a contractual obligation in proceedings where the respondent is precluded from adducing evidence to disprove the existence of the obligation.”

So too in the instant, I find that the real complaint by the applicant is that the respondents have breached the alleged management agreement. The applicant should have sued for specific performance of the alleged contract, possibly together with interlocutory relief in the form of an interdict if it believed that such relief was tenable. To grant spoliation in casu with the respondents contending that the applicant who breached the management agreement by failing to adhere to the terms of clause 3 thereof would in effect amount to granting an order for specific performance of a contractual obligation in circumstances where the respondents are precluded from adducing evidence to prove breach by the applicant of the management agreement.

In view of the foregoing finding, I find it unnecessary to delve into whether the applicant was ever in peaceful and undisturbed possession of the service station at the time the application was filed or whether, in view of the allegation that Petrotrade has replaced the applicant, restoration of the status quo ante is no longer possible.

In the result, the application is hereby dismissed with costs.

Atherstone & Cook, applicant’s legal practitioners

Chingeya-Mandizira Legal Practitioners, respondents’ legal practitioners