Yatch (Pvt) LTD V Action Property Sales (Pvt) LTD AND Chudy Properties (Pvt) LTD

### Preamble
1
HH 446-21
HC 4162/21
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YATCH (PVT) LTD

versus

ACTION PROPERTY SALES (PVT) LTD

and

CHUDY PROPERTIES (PVT) LTD

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 26 & 27 August 2021

Urgent chamber application

T.K. Bvekwa, for the applicant

Ms F. Mahere, for the respondent

MUREMBA J: This is an application for a spoliation order. There is a lease agreement between the parties. The lease agreement dates back to 2011. Sometime in 2014 there was an attempt to evict the applicant from the premises but this court in 2018 granted absolution from the instance which resulted in the applicant remaining in occupation of the premises. The premises in question are commercial.

It is not disputed that on or about 13 August 2021 the respondents went to the premises in question and put locks and chains. This resulted in the applicant falling to access the property. All efforts to engage the respondents in order to amicably resolve the matter so that the applicant could regain access to the property hit a brick wall. The explanation given by the respondents to the applicant for their action was that they had found the premises abandoned.

The applicant resultantly filed the present application for spoliation. The respondents maintained that when they locked the premises the applicant had abandoned it. The property neighbour had contacted the first respondent alerting it that the property was abandoned and left open. The first respondent’s deponent averred that upon visiting the premises they found the outside gate and the building open. No one was present. The property was in a disastrous state, being wholly derelict and thoroughly vandalized. Images of the property that were taken on the day were attached to the notice of opposition.

The legal requirements for a mandament van spolie which the applicant must prove on a balance of probabilities are:

That the applicant was in a peaceful and undisturbed possession of the thing; and

That he was unlawfully deprived of such possession

See Banga & Anor v Zawe and 2 Ors SC 54/14; Kama Construction (Private) Limited v Cold Comfort Farm Cooperative and Ors 1999 (2) ZLR 19 (SC).

The defences against a spoliation claim are that:

The applicant was not in peaceful and undisturbed possession of the thing in question at the time of dispossession.

The dispossession was not unlawful and therefore did not constitute spoliation.

In respect of the first requirement for spoliation the applicant needs to prove that he was in actual fact in possession (de facto) and not legally (de jure). The court will not investigate the rights of the parties in terms of a contract of lease or the question of ownership. The mandament being a final court order the applicant has to prove its two requirements on a balance of probabilities, a prima facie case will not suffice.  In the Banga case which falls on all fours with the present case, at p 8 Gwaunza JA (as she then was) said that a lease agreement does not constitute a valid basis to establish possession on the day of the alleged spoliation. Possession is a compound of a physical situation and of a mental state. It involves physical control or detention of the thing and a person’s mental attitude towards the thing at the time of the alleged spoliation. Physical control and the person’s mental attitude are both questions of fact. The applicant therefore needs to tender evidence to prove them.

In casu the applicant’s deponent, other than simply saying that there is a lease agreement between the parties; that the applicant used the premises in question as a warehouse; that on the day of the alleged spoliation the respondents approached the premises and cut the locks and chains securing the premises and replaced them with theirs resulting in the applicant not having access to the premises, no further  evidence was adduced to prove that the applicant was in possession of the property on the day of the alleged spoliation. It is my considered view that this evidence is insufficient to establish possession on the day of the alleged spoliation. This is more so when regard is had to the respondents’ explanation that the property was derelict and thoroughly vandalized on the day in question. From the pictures of the property that were taken on that day, the property did indeed look derelict.

Whether or not the property was locked or unlocked when the respondents put their locks is disputed between the parties, but that issue is neither nor there. It is not disputed that the property was in a bad state of repair and that nothing whatsoever of the applicant’s property was found at the premises. So, nothing pointed to the applicant’s possession of the property on the day of the alleged spoliation. The averment by the applicant that it was using the premises as a warehouse and that it had recently erected a durawall is insufficient to prove that it was still using the premises. It did not explain what it kept in the warehouse, how the warehouse was operating, why it was empty and looked vandalized, why there was no none completely on the day the respondents changed locks to the premises and to the outside gate. This shows that at the relevant time the applicant was not in physical possession of the property. With regards to the mental state or attitude towards the property at the time, the applicant left no indication on the premises to indicate its presence. There was no staff and there was no property inside the warehouse. With this it is clear that the applicant failed to discharge the onus on it with regards to the requirement of possession at the time of the alleged spoliation. The applicant having failed to prove that it was in possession of the property at the material time, I cannot therefore go on to determine or consider whether possession was either peaceful or undisturbed. These two issues automatically fall away. With this, I come to the conclusion that the applicant was not unlawfully deprived of possession of the property.

In the result, the application is dismissed with costs.

Bvekwa legal practice, applicant’s legal practitioners

Whatman & Stewart law firm, respondents’ legal practitioners