Arnold Musengi Jhamba and Others v City of Gweru

The applicants purchased immovable property (Stand Number 798 G.T.L.) from the respondent (City of Gweru) in or about 2007, with the agreement of sale signed in 2011. The first applicant alleged that when they received their copy of the agreement back, the first page had been removed and replaced with one without the parties' initials, and that the words "lying on the foot print" had been clandestinely introduced. Without right or due process, the respondent erected a commuter omnibus rank on a portion of the property despite the applicants' protestations. The applicants contended this violated their rights to use and enjoy their property and amounted to spoliation. The respondent contended that only the building was sold, not the land behind the building where the rank was erected, and that this portion was never in the applicants' peaceful possession.

• Whether the applicants had a prima facie right to the property including the land on which the commuter omnibus rank was erected
• Whether the respondent's actions in erecting the commuter omnibus rank constituted spoliation
• Whether the requirements for granting an interim interdict were satisfied
• The extent of property sold under the agreement of sale - whether it included only the building or also the land
• Whether clause 4.3.2 of the agreement of sale entitled the respondent to erect the commuter omnibus rank

The court granted a Provisional Order with interim relief interdicting: (a) the respondent, its employees, associates, agents, assignees and third parties including commuter omnibus operators, drivers, conductors and commuters from entering, interfering or otherwise disturbing the peace of applicants and those at the property with applicants' consent; and (b) ordering the respondent to remove all people and property at the premises who are present at the instance, invitation and through the respondent. The matter was to be fully ventilated on the return day.

Where an applicant establishes a prima facie right to property based on an agreement of sale, even if open to some doubt, and demonstrates a well-grounded apprehension of irreparable harm from interference with their use and enjoyment of that property, and no alternative remedy exists, an interim interdict may be granted pending full determination of the dispute. A municipality that has sold property cannot interfere with the purchaser's peaceful possession and use of that property without clear contractual authority or due process. The granting of an interim interdict is an extraordinary remedy within the discretion of the court, and such interim relief does not constitute a final determination of rights but protects the status quo pending full ventilation of the parties' respective claims.

The court noted that if on the return date, after full ventilation of the matter, the prima facie right as owners is not established, the applicants would be disabled from continuing to enjoy the relief afforded. The court observed that the applicants' protestations were founded on the contention that the respondent's actions violated their rights without due process, and that clause 4.3.2 of the agreement (giving the seller rights to erect pipelines, electric lines, sewers, drains, poles and standards) did not appear to cover the erection of a commuter omnibus rank. The court also implicitly suggested that the allegation of clandestine variation to the contract (removal and replacement of the first page and insertion of "lying on the foot print") raised serious issues requiring full determination.

This case is significant in Zimbabwean property law as it demonstrates the application of interim interdict principles in the context of property disputes between purchasers and municipal sellers. It illustrates the court's willingness to grant interim relief based on a prima facie right to property pending full determination of ownership disputes, particularly where municipal authorities allegedly act without due process. The case also highlights issues around the interpretation of agreements of sale, alleged clandestine variations to contracts, and the limits of municipal powers over sold property. It reinforces that municipalities cannot unilaterally exercise rights over property they have sold without clear contractual authority or due process.