The applicant, a church organization with juristic legal personality, owned premises at Number 238 Waller Avenue, Mount Pleasant, Harare, which served as a place of worship. The respondents, who were no longer members of the applicant church, obtained a Magistrates' Court order under case number 3208/21 against the applicant's pastor and another person. The order directed that access to the Mount Pleasant Assembly should not be unlawfully denied and that entrance doors be opened. Armed with this order, the Messenger of Court broke the locks, and the respondents (including some who were not parties to the Magistrates' Court order) took possession of the premises by installing their own locks and employing their own security guard, thereby excluding the applicant from the property on 3 February 2022.
1. The respondents were ordered to restore vacant possession of the property at No. 238 Waller Avenue, Mount Pleasant, Harare to the applicant upon service of the order, failing which the Sheriff was authorized to remove all locks and give vacant possession to the applicant. 2. The respondents were ordered to pay costs on the attorney-client scale.
The binding legal principles established are: (1) The requirements for a mandamant van spolie are that the applicant was in peaceful and undisturbed possession and the respondents wrongfully deprived the applicant of such possession without consent. (2) Once these requirements are proved, the principle spoliatus ante omnia restituendus est applies, requiring restoration of the status quo ante. (3) A court order granting access to premises does not entitle the recipients to take exclusive possession or control of those premises by installing locks and security to exclude the owner. (4) Persons who were not parties to a court order cannot rely on that order to justify acts of spoliation. (5) The mandament van spolie is a possessory remedy that does not concern itself with questions of title or right, only with the fact of unlawful dispossession.
The court observed that the suggestion by respondents that they installed new locks and employed a security guard merely to secure the property was "mischievous" given that they claimed no title other than access to the premises, and such access could only be within the bounds permitted by the applicant as owner of the property. The court also noted that the very idea of installing new locks and employing a security guard showed that in the respondents' minds they were taking effective control of the property, not merely exercising access rights.
This case reinforces the well-established principles of spoliation law in Zimbabwe (which follows South African common law principles). It demonstrates that the mandament van spolie is a possessory remedy that focuses solely on the fact of dispossession, not on rights or title. The case clarifies that a court order granting access to premises does not authorize the taking of possession or control of those premises. It also illustrates that parties who were not even named in a court order cannot rely on that order to justify their conduct. The case further demonstrates the application of punitive costs awards where parties act reprehensibly by exceeding the scope of a court order and mounting vexatious defences.