Altaf Hussein Bhadella v Hassam Abdul Gaffar Bhadella and Aboobaker Bhadella

The applicant and respondents are brothers with a deep-seated conflict. In January 2021, when the applicant was supposed to go to a rehabilitation centre in South Africa, he contracted Covid-19. Through a family arrangement, he was given possession of No. 12 Greenwood Lodges, 183 Josiah Chinamano Avenue, Harare as his quarantine place and it became his primary place of residence. On 19 October 2021, the first respondent changed the locks to the property, blocking the applicant's access. The respondents claimed the applicant had voluntarily abandoned the property in September 2021 and engaged in unruly behaviour contrary to the family's religion. They informed him of the lock change via WhatsApp message. The applicant had become homeless after selling the family house and leaving his family's rented accommodation.

• Whether the applicant was in peaceful and undisturbed possession of the property at the time of dispossession
• Whether the respondents unlawfully deprived the applicant of possession without his consent
• Whether the requirements for a mandament van spolie were satisfied
• Whether the applicant was entitled to a final interdict against future spoliation

1. The application for a spoliation order succeeded. 2. The 1st and 2nd respondents and all persons acting through them were ordered to restore to the applicant the undisturbed and peaceful possession of No. 12 Greenwood Lodges, 183 Josiah Chinamano Avenue, corner 8th street, Harare. 3. The relief for a final interdict was dismissed. 4. Leave was granted to the applicant's legal practitioners or sheriff to serve the order forthwith. 5. Each party to bear its own costs.

The binding legal principles established are: (1) For a spoliation order, the applicant must prove peaceful and undisturbed possession and unlawful deprivation of that possession by the respondent; (2) The nature or lawfulness of the applicant's possession is irrelevant to the spoliation remedy - possession may not be interfered with except through due process of law; (3) Mere absence from property, without evidence of intention to abandon, does not terminate possession; (4) A spoliation order is final in nature and requires proof of a clear right, not merely a prima facie right; (5) Evidence that the dispossessor contacted the possessor about the property, sought keys, and informed them of lock changes supports the finding of continuing possession at the time of spoliation.

The court made non-binding observations that: (1) The respondents' allegations about the applicant's allegedly uncouth character and unruly behaviour contrary to religious values were not relevant to determining spoliation; (2) The circumstances of the case, involving family disputes and the applicant's homelessness after selling the family house, warranted each party bearing its own costs despite the applicant's success on the spoliation claim; (3) The court noted the deep-seated conflict between the brothers and their non-cordial relationship involving mutual allegations of wrongdoing, suggesting this family dispute context influenced the costs order.

This case reinforces the fundamental principle in Zimbabwean law (following South African jurisprudence) that the mandament van spolie protects possession regardless of the legality or merit of that possession. It demonstrates that self-help remedies are not permitted, and that even family disputes over property must be resolved through due process of law. The case clarifies that mere temporary absence from property does not constitute abandonment and emphasizes that spoliation is a final remedy requiring proof of a clear right, not merely a prima facie right. It also illustrates the distinction between spoliation relief and interdictory relief, showing that different evidentiary standards apply to each.