CMAL Private Limited v Kumbirai Kangai and Quicklink Investments Private Limited and The Sheriff of Zimbabwe

The applicant owned two third shares of the remaining extent of Teviotdale farm held under Deed of Transfer 8935/90. In April 2021, the first respondent invaded the farm, leading to proceedings under HC1604/21 where TSANGA J granted interim relief interdicting the first respondent from carrying out any activities on the land. On 26 January 2022, MHURI J confirmed the provisional order and granted a final order. The first respondent was evicted on 14 February 2022 pursuant to the court order. Within days, on 15 February 2022, the second respondent (Quicklink Investments) moved onto the same portion of land, fenced it, and blocked the applicant's employees from accessing the property. The second respondent claimed to possess a certificate of registration for mining claims on the farm dating back to 2013, although the certificate referenced a mine named "Forest K" situated on "Forestview" rather than Teviotdale. The applicant brought an urgent spoliation application seeking restoration of possession.

• Whether the application met the urgency requirements
• Whether the applicant established spoliation by proving peaceful and undisturbed possession and unlawful deprivation thereof
• Whether the lawfulness of the second respondent's possession based on a mining certificate was relevant to the spoliation remedy
• Whether costs should be awarded on a higher scale

1. The second respondent was ordered to forthwith return applicant's status quo ante prior to spoliation and return peaceful, quiet, undisturbed possession, occupation and use of two third shares of the Remaining extent of Teviotdale held under Deed of Transfer 8935/90. 2. Failing compliance, the third respondent (Sheriff) was authorized to eject, demolish any structures and raze down fencing erected by the second respondent from the property. 3. The second respondent was ordered to bear costs of the application on the ordinary scale.

In spoliation proceedings, the applicant need only prove: (1) that they were in peaceful and undisturbed possession at the time of the alleged spoliation; and (2) that they were unlawfully ousted from such possession. The lawfulness or otherwise of the possession in dispute does not arise in spoliation proceedings - the existence of ius possidendi is irrelevant. The mandament van spolie requires restoration of the status quo ante pending determination of the dispute between parties (spoliatus ante omnia restituendus est). Where a party is placed in peaceful possession pursuant to a court order and is thereafter forcibly deprived of that possession by another party occupying and barring access to the land, spoliation is established regardless of any claimed mining rights or certificates of registration relating to the property.

The court observed that the applicant appeared to have sued the parties piecemeal, having proceeded only against the first respondent in HC1604/21 when it could have proceeded against both the first and second respondents. This observation influenced the court's decision not to award costs on a higher scale. The court also noted that the certificate of registration for the mine related to a different farm (Forestview) and not Teviotdale, and that under the colonial-era naming, the coordinates rather than names were of importance, though the certificate clearly referenced a different property. The court commented that it appeared the second respondent, realizing the first respondent had been lawfully evicted in his personal capacity, decided to occupy the same piece of land as there was no clear link established between the first and second respondent in HC1604/21.

This case reinforces the well-established principles of spoliation in Zimbabwean law (which follows South African common law principles on this remedy). It demonstrates that spoliation proceedings are concerned solely with the restoration of possession and not with the underlying rights of the parties. The case illustrates that even where a party claims lawful occupation based on mining rights or certificates, this does not defeat a spoliation remedy if unlawful deprivation of possession is established. The judgment also addresses urgency in the context of rapid re-occupation following a court-ordered eviction, and demonstrates judicial scrutiny of piecemeal litigation strategies in costs determinations.