Anthony Mutaku Pachena v Francisca Nyamukapa

The applicant had been staying at No. 19 Sawley Way, Marlborough East, Harare for the past two years. On 17 September 2025, at around 7 pm, the respondent with a group of ten men and one woman arrived at the property and allegedly assaulted the applicant and his family. The applicant's movables were removed from the property and scattered outside the gate. After removing the movables, the assailants allegedly locked the gate while the applicant's wife was still inside the property. The applicant and children were outside the property. The applicant brought an urgent chamber application seeking a spoliation order in the form of a provisional order to restore his possession of the property.

• Whether it is competent to seek a provisional order in an application for spoliation
• Whether an urgent application may be served on the respondent without the presiding judge directing it to be served
• Whether an applicant can unilaterally set a dies induciae (timeline) for filing opposing papers in an urgent application
• Whether interim relief identical to final relief can be granted
• The proper procedure for managing urgent chamber applications

The application was struck off the roll because it was fatally defective in that the applicant sought a provisional order in an application for spoliation. There was no order as to costs.

It is incompetent to seek a provisional order in an application for spoliation because spoliation orders are final in nature and determine the immediate right of possession, not prima facie rights. Urgent chamber applications under Rule 60 are judge-driven processes, and only the presiding judge may direct service of the application on the respondent and set timelines for filing opposing papers. An applicant cannot unilaterally serve an urgent application or set a dies induciae before the application is considered by a judge. Interim relief that is identical to the final relief sought defeats the purpose of interim protection and effectively grants final relief without the applicant proving their case. A judge cannot use Rule 60(9) to grant a final order where a litigant has sought only a provisional order.

The court made several obiter observations: (1) It is not within the lane (jurisdiction) of the Registrar to refuse to accept an urgent application because it does not have a provisional order, as there are instances where a final order may competently be sought in an urgent chamber application (citing Palmer v Kanyenze 2020 (1) ZLR 35). (2) Legal practitioners are presumed to know the law and cannot use alleged incorrect advice from court registrars as a defence for procedural errors. (3) The court noted it would not serve a useful purpose to hear the merits of an application with so many procedural infractions. (4) The judge expressed the view that once a dies induciae is given by an applicant (rather than the judge), it prevents the registrar from immediately submitting the application to the judge and prevents the judge from considering it forthwith, thereby defeating the urgency of the application. The court also noted it had not been requested to provide detailed written reasons but decided to do so nonetheless.

This case provides important guidance on the procedure for urgent chamber applications in Zimbabwe and reinforces fundamental principles regarding spoliation orders. It clarifies that: (1) spoliation orders are final in nature and cannot be sought as provisional orders; (2) urgent chamber applications are judge-driven processes where the judge maintains control from filing to disposal; (3) service and timelines in urgent applications must be directed by the presiding judge, not determined unilaterally by applicants; (4) interim relief cannot be identical to final relief; and (5) costs cannot be granted as part of interim relief. The judgment serves as a cautionary tale about procedural compliance in urgent applications and emphasizes that legal practitioners are presumed to know the law and cannot rely on alleged incorrect advice from court registrars.