Anthony Mandongwe Chigumba v Tafadzwa Lawrence Chidzamba

On 5 August 1997, the applicant, owner of a subdivided property Lot 16, Waterfalls, Harare, sold two stand numbers 139 and 140 to the respondent for $180,000. Vacant possession and occupation passed to the respondent at the conclusion of the sale. The respondent did not erect structures on his properties and a footpath developed through one of his stands. In 2002, the applicant (as developer) turned this footpath into a permanent road and prepared a road map which was approved by local authorities without consulting the respondent. The respondent objected but the road had already been approved. After several failed attempts to settle the dispute, the respondent constructed a precast perimeter wall around his property which closed off part of the road passing through his property. The applicant then approached the court on an urgent basis seeking spoliation relief, which was later converted to an ordinary court application.

• Whether the applicant was in peaceful and undisturbed possession of the road in question
• Whether the applicant was unlawfully deprived of such possession by the respondent's construction of the wall
• Whether the remedy of mandamus van spolie was available to the applicant
• Whether access to a road can be equated to possession warranting spoliation relief

The application was dismissed with costs.

For spoliation relief to succeed, the applicant must prove: (1) peaceful and undisturbed possession of the property in question; and (2) unlawful deprivation of such possession. Mere access to a road does not constitute possession for purposes of spoliation relief. A road accessible to everyone cannot be said to be in the exclusive possession of one party absent a legal right such as an easement. Where a purchaser obtains vacant possession of property at the conclusion of a sale agreement, the purchaser is in lawful possession of that property, and erecting structures on one's own property does not constitute unlawful spoliation, even if it prevents others from using a portion of that property.

The court observed that the rationale underlying the doctrine of mandamus van spolie is to preserve the rule of law, ensuring that everyone acts within the confines of the law and does not take the law into their own hands. The court noted that the legality of possession and the merits of the matter are not of paramount consideration in spoliation proceedings - the relief may even be open to a thief as long as the owner does not follow legal channels to reclaim ownership. The court also noted that possession can be either physical or mental, and whether a person has physical control and what their mental attitude is toward the thing are both questions of fact. The court referenced the principle that "no man is allowed to take the law into his own hands" from Nino Benin v Delange.

This case clarifies the requirements for spoliation relief in Zimbabwean law, particularly distinguishing between mere access to property and actual possession. It reinforces that spoliation remedy requires proof of actual peaceful and undisturbed possession, and that access to a road used by multiple parties does not constitute possession for spoliation purposes. The case also emphasizes that a property owner who erects structures on their own lawfully purchased property (where vacant possession has passed) does not commit spoliation, even if that action prevents others from using a portion of that property. It demonstrates the importance of obtaining proper easements when road access is required over another's property.