Augur Investments OU v The Minister of Local Government, Public Works and National Housing and Others

Augur Investments OU (the applicant) entered into a tripartite agreement with the City of Harare (second respondent) to construct the Harare International Airport Road. Payment for the construction was to be made 90% in the form of land, including Stand 654 Pomona Township. The title deed and possession of Stand 654 was placed in the applicant's custody by the first respondent (Minister) at the instance of the second respondent. The applicant enjoyed exclusive possession and control of the stand from 2011. Without the applicant's consent or a court order, the first respondent, in partnership with the third respondent (Urban Development Corporation) and fourth respondent (XGMA Zimbabwe), began subdividing, servicing and selling stands on Stand 654 Pomona Township. The fourth respondent entered into a joint venture agreement with the first respondent in October 2015, injecting capital and equipment into the development, claiming it acted in good faith believing the first respondent owned the property.

• Whether the applicant had peaceful and undisturbed possession of Stand 654 Pomona Township
• Whether the respondents unlawfully deprived the applicant of possession
• Whether the requirements for the Mandament van Spolie were satisfied
• Whether the fourth respondent's status as a bona fide third party provided a defense to spoliation
• Whether the applicant should be required to pursue alternative remedies such as breach of contract or vindicatory action instead of spoliation proceedings

The court granted the interim order: (1) The first, third and fourth respondents were ordered to restore peaceful and undisturbed possession of Stand Number 654 Pomona Township to the applicant forthwith; (2) The first, third and fourth respondents were ordered not to interfere in any manner with the applicant's peaceful and undisturbed possession of Stand 654 Pomona Township, including further subdividing, servicing and selling of stands to third parties.

In spoliation proceedings, the applicant must prove on a balance of probability that: (i) the applicant was in peaceful and undisturbed possession of the thing; and (ii) the applicant was unlawfully deprived of such possession. The applicant in spoliation proceedings need not allege or prove ius possidendi (right to possess) or ownership. All that must be proved is peaceful and undisturbed possession at the time of alleged spoliation and illicit ousting from such possession. The principle 'spoliatus ante omnia restituendus est' (the despoiled person must first of all be restored) applies, requiring restoration of the status quo ante pending determination of disputes between parties. Parties may not resort to self-help or unilaterally deprive another of possession without recourse to the courts or contractual dispute resolution mechanisms. A third party who acquires possession through an agreement with a party lacking authority to alienate property cannot claim 'co-possession' or rely on good faith representations to defeat a spoliation application.

The court noted contradictions in the second respondent's opposing affidavit, observing that the second respondent appeared to be both approbating and reprobating - claiming the applicant was never promised transfer of land while simultaneously alleging the applicant held title to the land, and claiming the applicant would be paid once it proved its claim while also alleging the agreement had collapsed. The court stated it would not condone the actions of the first respondent in resorting to self-help without recourse to the provisions laid out in the agreement or through the courts. The court observed that the deponent to the second respondent's opposing affidavit was not fully acquainted with the full facts of the matter. The court noted that the fourth respondent's persistence in claiming 'co-possession' based on representations by the first respondent demonstrated a clear and deliberate intention to despoil the applicant of its rights.

This case demonstrates the application of the Mandament van Spolie (spoliation remedy) in Zimbabwean law, which has strong parallels to South African law given the shared Roman-Dutch legal heritage. The case reinforces that the spoliation remedy is a possessory remedy focused on restoring the status quo ante, requiring only proof of peaceful possession and unlawful deprivation, without need to prove ownership or ius possidendi. The case also emphasizes that parties cannot resort to self-help to resolve disputes over property, even where there may be underlying disputes about contractual performance or entitlement. The judgment illustrates that third parties who acquire possession through agreements with parties who lack authority to alienate property cannot rely on bona fides to defeat a spoliation application. The case highlights the supremacy of the spoliation remedy over alternative remedies such as breach of contract or vindicatory actions where unlawful deprivation of possession is established.