Blanket Mine (1983) (Pvt) Ltd v Fisani Moyo and Others

The applicant, Blanket Mine (1983) (Pvt) Ltd, was in peaceful and undisturbed possession of a mining claim known as Valentine 56 GA 2786. The applicant had been conducting exploration through diamond drilling from 2020 until May 2021 to determine how to proceed with its operations. The drilling was temporarily ceased to await valuation results. During this temporary cessation, the 2nd respondent (Valentine Mine, represented by Thomson Moyo) forcefully took occupation of the mine. The applicant engaged the 4th respondent (Provincial Mining Director) who issued an injunction ordering cessation of operations at the mining location. When the 2nd respondent refused to submit to the administrative process and police assistance proved unsuccessful, the applicant approached the court for a spoliation order to restore its possession of the mining claim.

• Whether the application was fatally defective due to use of an inappropriate form
• Whether the certificate of urgency was fatally defective for not stating when the need to act arose
• Whether the 2nd respondent, being an artificial person (juristic entity), was capable of despoiling the applicant
• Whether there were material disputes of fact that rendered the matter unsuitable for determination on the papers
• Whether the application was actually one for eviction (rather than spoliation) and thus incapable of being sought on an urgent basis
• Whether the applicant was in peaceful and undisturbed possession of the mining claim at the time of alleged dispossession
• Whether the applicant was unlawfully deprived of such possession

The application succeeded. The court granted the amended draft order, which ordered: (1) the 2nd respondent and all persons claiming occupation through it to remove themselves from Valentine 56 mining claim (GA 2786); (2) failing such removal, the Sheriff was authorized to evict them; (3) the 3rd respondent (police) to provide an escort and assistance to the Sheriff; (4) costs of the application to be paid by the 2nd respondent at the ordinary scale (not attorney-client scale as originally sought).

The binding legal principles established are: (1) In spoliation proceedings, the applicant must prove peaceful and undisturbed possession and unlawful deprivation of such possession; ownership or lawfulness of possession is irrelevant. (2) A juristic person (company) can both commit spoliation (through its agents/representatives) and be despoiled. (3) In urgent chamber applications under Rule 242(1)(d), substantial compliance with procedural rules suffices where no prejudice results and parties can properly respond. (4) The nature of an application is determined by its cause of action, not the relief sought; restoration of possession in spoliation necessarily involves eviction but remains a spoliation application. (5) Material disputes of fact in spoliation are limited to facts relating to possession and dispossession, not ownership or title. (6) Temporary cessation of active use does not constitute relinquishment of possession absent evidence of physical and mental abandonment. (7) Valid defences to spoliation are limited to: (a) lack of peaceful and undisturbed possession at the time of dispossession, or (b) that the dispossession was lawful.

The court expressed displeasure at counsel's conduct in appearing bent on stalling resolution of the matter, particularly after agreeing to a consent order for ground verification then seeking to revert to arguing the original application. The court observed that legal practitioners should be reminded that raising points in limine as a matter of fashion is an exercise in futility; preliminary points should only be taken where meritorious and likely to dispose of the matter. The court noted that had it granted the interdict as originally sought in the draft order, this would have been inappropriate as it was not properly ventilated in the papers, and in any event a spoliation order itself serves to restore the status quo ante with violation giving rise to contempt proceedings. On costs, the court declined to award attorney-client costs, finding that while the opposition failed, it did not appear to be motivated by sheer vindictiveness or a calculated attempt to put the applicant out of pocket, thus ordinary costs were appropriate.

This case provides important guidance on spoliation proceedings in the context of mining claims in Zimbabwe. It reinforces the principle that spoliation proceedings are concerned solely with restoration of possession and not with questions of ownership or rights to property (spoliatus ante omnia restituendus est - the despoiled must first be restored). The case clarifies that juristic persons can both commit and be victims of spoliation through their agents and representatives. It also demonstrates the court's willingness to prioritize substance over form in urgent applications where no prejudice results from procedural irregularities, and confirms that spoliation orders are final in nature regarding immediate possession rights, with ownership disputes to be determined in subsequent proceedings. The judgment provides guidance on valid defences to spoliation applications and emphasizes that courts will not allow parties to use preliminary objections as delaying tactics.