Charles Chiwaya v Ceaser Julious Manyunyi and Others

The applicant occupied a piece of communal land in Chibvembe Village, Chief Katerere in Nyanga in 2004, where he established a homestead, cattle pens and temporary structures. His homestead was surrounded by mining claims, with Chisero Mining Syndicate located about 500m away. On 8 February 2022, a group consisting of police details, members of the army, and people claiming to be mining claim owners approached the applicant's homestead. They burnt down the applicant's homestead and chased him away, purportedly as part of an operation to eradicate illegal gold panners or invaders. The applicant was neither an illegal miner nor an illegal occupier. The respondents did not have any lawful court order to carry out the operation, and no sheriff of the High Court was present. As a result, the applicant was dispossessed of his rural home and became a squatter in Mutare town.

• Whether the applicant was in peaceful and undisturbed possession of the property
• Whether the applicant was unlawfully deprived of such possession
• Whether the respondents acted lawfully in evicting the applicant and destroying his property without a court order
• Whether the applicant was entitled to a spoliation order

The application was granted as per the draft order. The respondents were: (1) barred and stopped from preventing the applicant or members of his family from accessing their rural home; (2) barred from stopping the applicant from building temporary or permanent structures on his homestead; (3) ordered not to interfere with applicant's property in whatever manner without a valid court order; (4) ordered not to evict the applicant from his home without a valid court order; (5) the fourth and fifth respondents were ordered to remove any members of the armed forces who might be guarding applicant's home in order to prevent the applicant from accessing it; and (6) the first to fourth respondents were ordered jointly and severally, one paying the other to be absolved, to pay costs on an ordinary scale of party and party (not legal practitioner-client scale as requested).

In spoliation proceedings, an applicant need only prove that: (1) he was in peaceful and undisturbed possession of property, and (2) he was unlawfully deprived of such possession. The lawfulness of the applicant's possession is irrelevant to the spoliation remedy. State security forces (police and army) cannot evict persons or destroy property without a valid court order, regardless of the purpose of their operation. Any interference with a person's possession must be done within the bounds of the law, in adherence to the Constitution, and following due process. The principle of spoiliatus ante omnia restituendus est (the despoiled person must first be restored) applies to preserve law and order and to discourage persons, including state actors, from taking the law into their own hands.

The court made strong observations about the inhumane and inconsiderate nature of evicting a person and their family during the rainy season without notice or a court order, effectively condemning them to living in the bush. The court expressed that there is no excuse that justifies such action. The court also made pointed remarks about 'disciplined' forces deliberately resorting to self-help, noting that courts cannot stand by when such forces compromise the rule of law which they swore to jealously guard. These observations emphasize the court's concern about the abuse of state power and the importance of upholding constitutional values even in the execution of ostensibly legitimate operations against illegal activities.

This case is significant in Zimbabwean jurisprudence as it reinforces the principle that state security forces (police and army) cannot take the law into their own hands, even when acting under instructions, and must follow due process and obtain court orders before evicting persons or destroying property. The case emphasizes the constitutional imperative that the rule of law must be respected by all, particularly by those who have sworn to uphold it. It reaffirms that spoliation remedies are available to restore possession regardless of the lawfulness of that possession, and that self-help remedies are not permissible in a constitutional democracy. The case also highlights the protection of the right to shelter and property, particularly in vulnerable circumstances (such as during the rainy season), and that administrative operations by state organs must comply with constitutional and legal requirements.