Blesan Systems (Private) Limited t/a Avery Sports Bar v Cleopas Mabhena and Gabriel Real Estate

Applicant operated a sports bar at Patrick Court under a lease agreement from 2002, initially in shop 4, later expanding to shop 5 in 2014. During COVID-19 lockdown, business ceased. After lockdown, first respondent (Cleopas) requested permission to store beers on the premises, which was granted. In July 2022, first respondent requested to sub-lease shop 5, which was refused. According to applicant, on 1 August 2022, respondents forcibly took control of shop 5, chasing away guards and breaking locks. First respondent contended that in April 2022, applicant's goods were attached and removed by the Messenger of Court. Muzeya (applicant's director) allegedly told Cleopas he was closing both shops due to unpaid rent. In May 2022, Muzeya allegedly offered Cleopas the use of shop 5 for USD 400 per month rent. Cleopas paid rent from May to July 2022 and operated Mascrad Bar. In July 2022, shop 5 was partitioned, with Muzeya operating Avery Sports Bar in one section and Cleopas operating Mascrad Bar in the other. On 1 August 2022, Cleopas signed a lease agreement with second respondent (the landlord). Muzeya demanded rent from Cleopas, who refused based on his new lease with the landlord.

• Whether applicant was in peaceful and undisturbed possession of shop number 5 on 1 August 2022
• Whether respondents deprived applicant of possession forcibly or wrongfully against his consent
• Whether applicant met the requirements for a spoliation order
• The onus of proof in spoliation applications where factual averments are disputed

The urgent chamber application for spoliation and interim interdict was dismissed with costs on 16 August 2022.

In a spoliation application, the applicant must prove two essential elements: (1) that he was in peaceful and undisturbed possession of the property; and (2) that the respondent deprived him of possession forcibly or wrongfully against his consent. Where these factual allegations are disputed by the respondent, the applicant bears the onus of proving the facts asserted and cannot rely on res ipsa loquitur or circumstantial evidence when direct evidence from witnesses to the alleged dispossession is available but not produced. The failure to adduce such evidence is fatal to the application.

The court referenced the purpose of spoliation as being to preserve law and order and to discourage persons from taking the law into their hands, citing Base Mineral Zimbabwe (Pvt) Ltd & Ors v Mabwe Minerals (Pvt) Ltd SC 29/15. The court noted applicant's argument that respondents had not raised any recognized defences, but found this irrelevant given that applicant failed to establish the basic elements of spoliation in the first place. The court also observed that the demand for proof of payment of rates and the claim for holding over damages did not assist applicant, as these were consistent with respondents' case that the premises had been partitioned.

This case reinforces the evidentiary requirements for spoliation applications in Zimbabwean law, particularly the applicant's duty to provide concrete evidence of peaceful possession and forceful dispossession when these facts are disputed. It demonstrates that courts will not accept bare allegations or circumstantial evidence (such as a broken lock without context) when direct evidence (such as witness affidavits from guards allegedly present) could and should have been provided. The case also illustrates the principle that he who makes a positive assertion bears the onus of proving it, particularly in spoliation proceedings.