Saddam Mustafa Rashidi v Trondel Investments (Private) Limited and Own Gumbo and Gungwe Security (Private) Limited

### Preamble
1
HH 649 - 25
HCH 5168/25
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SADDAM MUSTAFA RASHIDI

versus

TRONDEL INVESTMENTS (PRIVATE) LIMITED

and

OWN GUMBO

and

GUNGWE SECURITY (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE; 17, 20 & 21 October 2025

Urgent Chamber Application – Spoliation

T. Gombiro, for the applicant

C. T Tinarwo with R Zimudzi, for the 1st, 2nd & 3rd respondents

Background

MAMBARA J:    This is an urgent chamber application for a mandament van spolie. The applicant, Mr. Sadam Mustafa Rashidi, seeks the restoration of his possession of a certain residential cabin located at Stand 27 Chinemaringa Close, Shawasha Hills, Harare, which he alleges the respondents unlawfully dispossessed him of on 8 October 2025. The first respondent is Trondel Investments (Pvt) Ltd, the registered owner of the property in question. The second respondent Mr. Now Gumbo is a security officer employed to guard the premises through the third respondent, Gungwe Security (Pvt) Ltd. All three respondents are opposing the application.

The applicant’s case is that from 27 March 2025 until 8 October 2025 he was in peaceful and undisturbed occupation of a cabin situated on the first respondent’s Shawasha Hills property. He treated this cabin as his home, kept his personal belongings there, and resided there continuously. On 8 October 2025, however, the first respondent through its agents, including the second and third respondents allegedly barred him from entering the premises – effectively evicting him without court authority. The applicant avers that the respondents’ actions amounted to unlawful self-help. He had no other place of residence, and as a result of being locked out he was left homeless on that day. He promptly launched this urgent application, insisting that whatever rights the respondents might claim, they were not entitled to dispossess him extrajudicially.

The respondents, for their part, categorically deny that the applicant was ever in settled possession of the property. They claim the applicant is a complete stranger and “intruder” who had no permission to be on the premises. In their opposing affidavit, the respondents assert that the applicant “is unknown to the first, second and third respondents” and had produced no evidence of his alleged occupation. They point out that the applicant himself admits the property belongs to the first respondent, and argue that he failed to explain how he came to be in the cabin in the first place. According to the respondents, they simply refused entry to an unauthorized trespasser – an act which they contend was lawful and a reasonable step to protect the owner’s property rights. They maintain that because the applicant was not an established occupant, there was nothing to “restore” and the spoliation remedy does not apply. On this basis, the respondents submit that the application is an abuse of process by a person with “suspicious” intentions, and should be dismissed with costs.

It was evident that there was a direct factual dispute as to whether the applicant had indeed been in peaceful possession of the cabin prior to 8 October 2025. Given the urgency and the nature of the remedy sought, the court deemed it appropriate to resolve this dispute on the papers if possible – and if not, by whatever expeditious means available. In this regard, an inspection in loco was conducted at the property in the presence of counsel for both parties in order to ascertain the physical circumstances on the ground and any objective indications of the cabin’s use and occupancy.

The inspection provided valuable insight. Just inside the main gate of the property, two small cabins used by security personnel were observed. Further within the premises, some distance from the gate a separate cabin structure was found – this being the cabin which the applicant identified as the one he had been occupying. The applicant proceeded to unlock and open this cabin during the inspection. Inside, the cabin was plainly being used as a dwelling: the parties observed a bed with bedding, a gas stove, food items, and other personal effects and convenience furniture in situ. In short, the one-room cabin contained the trappings of ordinary habitation. Photographic evidence of the interior filed as Annexure “B” to the inspection report confirms the presence of these household items.

The respondents’ representatives at the inspection were taken aback by what was found in the cabin. They conceded that they were aware of this particular cabin on the property. It was said to have been erected some time ago by one Supa Mandiwanzira), but they professed that they had always known it to be empty. The respondents admitted that they did not know “when and how” the bed, stove and other chattels had been “sneaked into” the cabin. In other words, until the inspection, the respondents claim they were unaware that anyone, let alone the applicant had furnished the cabin or was living there. Notably, the first respondent’s director, a Mr. Annesley, who has a residence on an adjoining portion of the property, was also present during the inspection. If the respondents’ astonishment was genuine, it suggests the applicant’s occupation might have been clandestine from the owner’s perspective – a point I return to later.

Besides the cabin in question, the inspection revealed two other cabin structures roughly 300 metres further inside the property. The applicant indicated that one of those had been previously occupied by another person though it was vacant at the time of inspection, and that the other had never been occupied. These appeared to be ancillary structures on the estate. It was common cause that the main dwelling on the stand is occupied by the first respondent’s director. These contextual details underscore that the property is a large one with multiple structures, and help explain how an individual might dwell in an outlying cabin for some time without immediately coming to the attention of others on the premises.

The Law

The remedy of spoliation is a venerable and well-established one in our law. Its purpose is to uphold the rule of law and discourage people from taking matters into their own hands. As Innes CJ famously stated in the classic case of Nino Bonino v De Lange 1906 TS 120, “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 possession of property, whether movable or immovable. If he does, 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.” This principle, over a century old, remains the bedrock of spoliation proceedings in Zimbabwe and throughout the Commonwealth. Our courts have repeatedly affirmed that self-help is not to be tolerated – even where a party believes they have a superior right to the property, they must still proceed by due process of law, not by might or stealth.

It is trite that to obtain a spoliation order, an applicant need only prove two essential requirements:

that he was in peaceful and undisturbed possession of the thing in question; and

that he was unlawfully deprived of such possession without his consent.

These requirements have been stated and restated numerous times in our jurisdiction, including by the Supreme Court in Botha & Another v Barrett 1996 (2) ZLR 73 (S). Crucially, the causa or legality of the applicant’s possession is irrelevant to these proceedings. It is actual possession, not the right to possession that this remedy protects. Thus, “lawfulness of possession does not enter into it.” The courts do not at this stage enquire into which party has the better title or right to possess; that inquiry must wait for another day. The mandament van spolie exists to restore the status quo ante immediately, as a preliminary measure, precisely so that the parties’ underlying rights can thereafter be considered in an orderly judicial manner rather than by force of arms.

Put differently, the policy of the law is that no one may resort to self-help, no matter how justified they believe their claim to the property is. Allowing self-help would invite chaos. As Malaba Dcj (as he then was) observed in Blue Rangers Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 368 (S), the courts must continue to insist on the spoliation remedy “for the fundamental reason that recognising any resort to self-help without a court order is the surest recipe for disorder, degenerating into possible violence and the abnegation of the rule of law.”  Indeed, our courts have had no hesitation following this traditional approach. To do otherwise would undermine the very foundations of law and order. Even a person who is in unlawful or illegal possession (for example, a trespasser or hold-over tenant) is entitled to be restored to possession if he is forcibly ejected without a court order – the rationale being that the courts cannot condone unlawful acts, and the aggrieved owner must use lawful eviction procedures.

The above principles have been consistently upheld in Zimbabwean and South African jurisprudence on spoliation. For instance, in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H), Reynolds J stressed that in spoliation proceedings “it need only be proved that the applicant was in possession of something and that he was forcibly or wrongfully deprived of such possession… lawful possession does not enter into it.” Similarly, in Botha & Anor v Barrett (supra), the Supreme Court confirmed that the court’s role is simply to restore the status quo where a party has been despoiled, without investigating the merits of the parties’ respective claims at that stage. Numerous other decisions echo the same refrain: see, e.g., Mashingaidze v Chipunza 1996 (2) ZLR 257 (H); Karori (Pvt) Ltd v Mujaji 2007 (1) ZLR 105 (H); Innocent Chitiki v Pan African Mining (Pvt) Ltd [2015] ZWHHC 656; Nyasha Chikafu v Dodhill (Pvt) Ltd SC 28/09, among others. The thread running through all these cases is that the courts will swiftly intervene to prevent unlawful dispossession and thereby compel disputing parties to follow lawful processes to resolve their grievances.

The defences available to a respondent in spoliation proceedings are very limited. Because the court will not allow any enquiry into the merits of entitlement at this stage, there are “no real defences which do not amount to a denial of the applicant’s allegations” (Amler’s Precedents of Pleadings, as cited with approval in in Harland Brothers and Anor v The Minister of Lands and Rural Resettlement and Anor HH 6/10.) Essentially, the recognised defences are confined to disputing the facta probanda (i.e. denying that the applicant had possession or was dispossessed as alleged), or raising a legal impossibility of restoring possession, or a claim of counter-spoliation, or that the applicant delayed unreasonably in seeking relief. Counter-spoliation refers to a situation where the respondent himself was in possession and immediately retaliated to an act of spoliation by the applicant – a narrow and rare exception. None of these special defences shifts the focus from the two requirements stated above. They simply negate one of those requirements or bar relief for extraordinary reasons like physical impossibility or tardiness. If the applicant establishes the two requisites and no valid special defence is raised, the mandament van spolie must be granted without further ado. The court does not indulge pleas that the respondent had a “right” to do what he did – that argument is irrelevant at this stage. See Stephen Mukiwa v Margret Muusha HH 31/12

It should also be noted that a spoliation application is inherently urgent. The Latin maxim spoliatus ante omnia restituendus est captures this – the despoiled person must be restored “before all else,” meaning that relief should be immediate and not await the protracted resolution of underlying disputes. This explains why spoliation matters are often heard on an urgent basis and why the remedy is usually sought and granted via a chamber application rather than action. In the present case, the applicant came to court just days after the alleged dispossession, which is in keeping with the expectation that one acts swiftly to reclaim possession or else risks undermining one’s own case. Undue delay can, in appropriate circumstances, be taken as acquiescence in the loss of possession. Here, there is no contention that the matter is not urgent – indeed, if the applicant’s allegations are true, each day of homelessness would compound the harm. I proceed, therefore, to apply the law to the facts established on the record.

Application of the Law to the Facts

The issues for determination can now be crisply defined. They are: (i) whether the applicant has proven that he was in peaceful and undisturbed possession of the cabin at 27 Chinemaringa Close prior to 8 October 2025; and (ii) whether the respondents unlawfully dispossessed him of that possession on 8 October 2025, without his consent or due process. Both elements must be satisfied for a spoliation order to issue. If either is not established, the remedy cannot be granted. I shall address each in turn.

(i) Peaceful and undisturbed possession

On the question of prior possession, the applicant’s evidence – now bolstered by the inspection in loco – persuades me that he was indeed in de facto possession of the cabin in the months leading up to 8 October 2025. The applicant’s sworn evidence is that he moved onto the property in late March 2025 and thereafter continuously occupied the cabin as his place of residence. This is not a case of a fleeting or occasional presence. The applicant describes the cabin as “the sole place that he regards as home.” He kept his belongings there and slept there. Importantly, during the inspection the applicant was able to unlock the cabin with his own key and grant the inspecting team access, which is strong evidence of his physical control over the premises. Inside the cabin, as noted, were a bed, bedding, a gas stove, food supplies, and other personal and household items consistent with someone living there day-to-day. These objective facts speak louder than words. They corroborate the applicant’s assertion that he enjoyed undisturbed use of the cabin for some time. No evidence has been adduced by the respondents or otherwise that anyone else was using that cabin during the relevant period. Thus, on a balance of probabilities, I find that the applicant was in possession of the cabin prior to the incident in question.

The respondents, of course, vehemently denied that the applicant was ever an occupant. They argue that neither the owner, first respondent, nor the stationed security, second/third respondents, ever saw or knew of the applicant living on the property. How then, one might ask, could the applicant have been in “peaceful and undisturbed” possession if the landowner and its guards were ignorant of his presence? The answer lies in the nature of the possession. Possession for purposes of the spoliation remedy does not require the possessor to hold the property openly or with the explicit awareness of the owner. What is required is factual control, corpus, with the intent to possess, animus possidendi. A possessor may exercise control clandestinely or without the knowledge of others, yet his possession is still possession in the eyes of the law. Here, the applicant’s control of the cabin, though surreptitious, was peaceful. No one disturbed him prior to October 8 and undisturbed he maintained the cabin in his custody without interference for many months. The respondents’ very lack of knowledge until October indicates that the applicant’s occupation was unchallenged and uncontested – it was hidden perhaps, but not turbulent or fought over. In Yeko v Qana 1973 (4) SA 735 (A), the court noted that even a secret possessor is protected. What matters is that before the dispossession, the possession was stable and unmolested. That condition is satisfied on the facts here.

The respondents’ ignorance of the applicant’s occupation, while perhaps excusable from their perspective, does not negate the actuality of that occupation. The inspection in loco effectively debunked the respondents’ claim that the cabin was “always empty.” It was plainly not empty. The respondents admitted at the inspection that they “did not know when and how the bed and gas stove” and other items had found their way into the cabin. This admission is telling. It demonstrates that the applicant’s possession was real enough that furniture and appliances had been moved in and kept there, yet it was done without alerting the respondents – hence their surprise. In law, one cannot deny another’s possession merely by saying “I didn’t know about it.” If the reality on the ground is that the person had established himself in the property, then possession exists as a fact. Here we have the reality: the applicant’s bed, bedding, stove, food and so on were in the cabin; he had a key and could come and go; he treated it as his abode. That is sufficient to constitute possession in fact. Whether he had permission or not, whether the owner would have objected if they had known – those considerations go to the lawfulness or rightfulness of the possession, which, as discussed, are irrelevant in spoliation proceedings. I therefore conclude that the first requirement of the mandament van spolie has been met. The applicant was in peaceful and undisturbed possession of the cabin before 8 October 2025.

(ii) Unlawful dispossession

The second requirement is also clearly satisfied. It is common cause that on 8 October 2025 the applicant was prevented by the respondents’ actions from accessing the property and the cabin. By the respondents’ own account, their security personnel, under the first respondent’s instructions, denied the applicant entry when he attempted to enter on that date. In effect, the respondents ousted the applicant from the premises – this after he had been in occupation, unchallenged, for months. There was no court order authorizing the respondents to evict him. The respondents simply took it upon themselves to bar the applicant, based on their belief that he had no right to be there. That is precisely the sort of conduct the spoliation remedy forbids. The dispossession was forcible and wrongful, in the sense that it was achieved through self-help, locking gates or posting guards to keep the applicant out, and against the will of the possessor. The applicant certainly did not consent to relinquishing possession – he protested it by immediately bringing this application. And the respondents do not suggest that the dispossession was peaceable or consensual. Rather, they justify it by claiming the applicant had no right to possess. As already noted, such justification is legally untenable in this context. No person, owner or otherwise, is allowed to dispossess another “against his consent of possession of property… without a court order.” See Stephen Mukiwa (supra). If that occurs, the dispossession is unlawful ipso facto, and ipso jure the court must intervene.

The respondents’ stance throughout these proceedings has been a denial of the fact of possession, which I have found to be unsustainable on the evidence. Once that denial falls away, there is really nothing left of their defence. They have not alleged any of the special defences recognized in spoliation cases. There is no suggestion that restoration of the status quo is impossible. Indeed, the cabin remains available and under guard. This is not a case of counter-spoliation – the respondents did not immediately repel a forcible intrusion by the applicant; rather, they discovered (or believed) that the applicant had been on the property and then chose to expel him after the fact. Nor can the respondents argue that the applicant delayed in asserting his possessory rights – he acted within a fortnight, which is entirely reasonable in the circumstances. In short, none of the justifications that might excuse an otherwise unlawful dispossession are present here. The respondents simply took the law into their own hands. Even if done in honest error (thinking the applicant was merely a trespasser who could be removed at will), it remains unlawful. The mandament van spolie exists exactly to correct such situations.

Having found that the applicant was in possession and was illicitly dispossessed, it follows inexorably that he is entitled to relief. The court will not entertain the respondents’ invitation to consider the merits of who has better title or a superior right to occupy the property. As many judgments have reiterated, those merits are “not justiciable in such proceedings”. See Harland Brothers (Pvt) Ltd (supra). The owner’s remedy, if it believes the applicant is an unlawful occupier, is to bring eviction proceedings or other appropriate action in which the merits can be decided. But in the interim, the possessor must be restored to possession. The Supreme Court’s decision in Botha v Barrett (supra) and kindred cases make it abundantly clear that an owner’s stronger right of possession does not permit bypassing the spoliation doctrine. No matter how indignant the first respondent may be that someone occupied its property without consent, it had to follow the law. By evicting the applicant peremptorily, the first respondent (and its agents) became the despoilers in the eyes of the law. And “spoliatus ante omnia restituendus est” – the despoiled must first be restored.

I emphasize that granting this application decides nothing about the ultimate rights of the parties in respect of this property. It is not a vindication of the applicant’s entitlement to remain on the land. It is merely a temporary restoration of the prior factual position, pending proper proceedings. If the first respondent wishes to evict the applicant or pursue criminal trespass charges, it is perfectly entitled to do so – but it must obtain the requisite court order or follow due process. What it may not do is unilaterally eject an occupant, even an uninvited one, without the sanction of the law. The rule of law demands no less. As eloquently stated in Chisveto v Minister of Local Government (supra): “a person in possession of property, however unlawful his possession may be and however exposed he may be to ejectment proceedings, cannot be interfered with in his possession except by due process of law”. See also Ntshwacela v Chairman, Western Cape Regional Services Council 1988 (3) SA 218 (C). The respondents in this case disregarded that rule, and thus this court must ensure the status quo ante is restored.

Disposition

In the final result, the applicant has met the requirements for a spoliation order. The mandament van spolie will issue against the respondents. The applicant requested costs on the higher scale. Generally, in this sort of matter, an award of punitive costs is justified only where the respondent’s conduct was grossly reprehensible. Here, the respondents’ resort to self-help was indeed unlawful, but it appears it may have stemmed from a mistaken, albeit reckless belief in the correctness of their actions. I have decided that a stern message still needs to be sent that self-help will not be countenanced. Consequently, I am inclined to grant costs on the higher scale, jointly and severally against the respondents, as a mark of disapproval of their conduct in taking the law into their own hands. Parties who choose to bypass the law must bear the consequences of the litigation that ensues.

Accordingly, IT IS ORDERED as follows:

The respondents, jointly and severally, shall immediately restore to the applicant possession of the residential cabin situated at Stand No. 27 Chinemaringa Close, Shawasha Hills Residential Estate, Harare. In particular, the respondents and all those acting under their instruction or authority are directed to allow the applicant forthwith to re-enter and occupy the aforesaid cabin and to enjoy undisturbed possession thereof.

The respondents and anyone acting through them are interdicted from preventing or hindering the applicant’s access to and use of the said cabin, save by lawful authority of a competent court. Any padlocks, barricades, security personnel or other impediments that were put in place by the respondents to deny the applicant access shall be removed or withdrawn immediately upon service of this order.

In the event that the applicant’s personal effects were removed from the cabin or the premises by the respondents, the respondents shall ensure that such items are returned to the cabin or handed back into the applicant’s possession without delay.

The first, second and third respondents shall pay the costs of this application on the legal practitioner-and-client scale, jointly and severally, the one paying the other to be absolved.

Mambara J: ……………………………………………………

Chimwamurombe Legal Practice, applicant’s legal practitioners

Zimudzi & Associates, 1st, 2nd & 3rd respondents’ legal practitioners