Bekithemba Nyathi and Movement for Democratic Change (Bulawayo Provincial Youth Assembly) and Movement for Democratic Change v The Officer-in-Charge (Bulawayo Central Police Station) and The Commissioner General of Police and The Co-Ministers of Home Affairs

The first applicant was Provincial Chairperson of the second applicant (an organ of the MDC political party, the third applicant). On 14 January 2012, the second applicant planned to conduct a peaceful car procession in Bulawayo in solidarity with Solomon Madzore and seven others in custody at Chikurubi Prison on allegations of murdering a police officer. The procession was scheduled to start at 1000 hours, preceded by a prayer session at the third applicant's provincial offices, with members to distribute fliers advocating for speedy trial of the detainees. Members from various districts were brought to the provincial offices, but Mpopoma District members were stopped at a police roadblock. This led to the arrest of the first applicant and other members, and confiscation of eight boxes of fliers (each containing 5,000 copies) and two boxes of National Council Resolutions. The applicants did not notify the Zimbabwe Republic Police of the procession and prayer sessions as required by section 25(1)(a) of the Public Order and Security Act [Chapter 11:17].

• Whether the police's seizure of the applicants' materials constituted unlawful spoliation
• Whether the mandament van spolie (spoliation order) was available where the police acted pursuant to statutory powers under sections 49, 51 and 52 of the Criminal Procedure and Evidence Act
• Whether failure to notify the police of a procession under section 25(1) of the Public Order and Security Act justified the seizure of materials

The application for a spoliation order was dismissed with costs.

The mandament van spolie (spoliation order) is not available where the deprivation of possession is not illicit. Where police officers seize materials pursuant to statutory powers under sections 49, 51 and 52 of the Criminal Procedure and Evidence Act, based on reasonable grounds to believe the materials are concerned in the commission of a crime, such seizure is not illicit and therefore does not constitute spoliation. The conduct must be unlawful to ground a spoliation remedy; lawful exercise of statutory powers, even if resulting in deprivation of possession, does not amount to spoliation.

The court noted that the purpose of the mandament van spolie is to preserve law and order and discourage persons from taking the law into their own hands. The court also observed that the applicants, in their founding affidavit, clearly stated what amounted to a contravention of section 25(5) of the Public Order and Security Act, effectively acknowledging their non-compliance with the notification requirements.

This case clarifies the limits of the spoliation remedy in Zimbabwean law. It establishes that the mandament van spolie is not available where law enforcement officers act pursuant to valid statutory powers, even if the applicant disagrees with the exercise of those powers. The case reinforces that spoliation requires 'illicit' deprivation of possession, and lawful seizure under criminal procedure legislation does not constitute spoliation. It demonstrates the interaction between constitutional rights (freedom of assembly), public order legislation, and criminal procedure in the context of political activity.