Church of the Province of Central Africa and Board of Trustees for the Diocese of Manicaland and Musiwa Mwashita v Elson Madoda Jakazi and Others

The applicants (Anglican Church and its trustees) and respondents (a breakaway Anglican faction) had entered into a consent order before Bhunu J on 12 October 2009, which allowed each party to remain in control of church property in their respective possession at that time. The applicants were in possession of All Saints Zimunya Church through their warden, Musiwa Mwashita (third applicant), who held the keys since the death of Reverend Rondozai in May 2011. After Reverend Rondozai's death, Reverends Chigwanda and Waiziweyi of the applicants' faction conducted services at the church. On 6 September 2011, the respondents demanded the keys from Mwashita. When he refused, they sought police assistance and on 9 September 2011 forced Mwashita to surrender the keys. The applicants' lawyers wrote to the respondents demanding return of the church, but received no response, prompting this urgent application.

• Whether the applicants were in peaceful and undisturbed possession of All Saints Zimunya Church at the time of dispossession
• Whether the respondents' actions constituted unlawful spoliation
• Whether the respondents could rely on the defence of counter-spoliation
• Whether the use of police to effect dispossession rendered the respondents' conduct lawful
• What constitutes 'instanter' recovery for purposes of counter-spoliation

The respondents were ordered to forthwith restore to the applicants possession, control and use of the All Saints Zimunya church, pending determination of the matter.

For counter-spoliation to succeed as a defence to a spoliation order, the recovery must be instanter (immediate/forthwith) and must form part of the res gestae of the original act of spoliation. Counter-spoliation cannot be invoked where the initial spoliation has been completed and the spoliator has obtained firm control and possession of the property. A delay of several months between alleged dispossession and counter-action constitutes a new act of spoliation, not counter-spoliation. The use of police assistance to effect dispossession does not clothe otherwise unlawful conduct with legality; dispossession must be through due process of law.

The court made observations distinguishing counter-spoliation from revenge spoliation, noting that "revenge spoliation cannot be disguised as counter-spoliation, just as revenge cannot be disguised as self defence." The court also noted that Mr Zhou's submission regarding the correctness of the decision in Ness v Greef (that an 11-day period was instanter recovery) was not material to the resolution of the application, implicitly declining to express a view on whether that case was correctly decided. The court observed that at the beginning of factionalism, papers from one faction could have found their way to another faction, which rendered solitary proof of payment of limited or no value.

This case is significant in Zimbabwean property law as it confirms the acceptance of counter-spoliation as a defence to spoliation orders (following the South African position as endorsed in Kama Construction v Cold Comfort Farm 1999 (2) ZLR 19 (SC)), while clarifying the strict requirements for such a defence. It establishes that counter-spoliation must be 'instanter' (immediate) and form part of the res gestae of the original spoliation. The case also confirms that the use of police to effect dispossession does not render otherwise unlawful conduct lawful where it is not through due process. The judgment provides important guidance on resolving property disputes arising from ecclesiastical schisms.