Cranrid Investments (Private) Limited v Macsherp (Private) Limited

On 1 May 2021, the parties entered into a 5-year lease agreement for three service stations: Stand No. 10 Chimoio Road Kadoma, Twyford Farm Chegutu, and Stand No. 7173 Gokwe South Town Council, all owned by the respondent and leased to the applicant. The respondent alleged that the applicant failed to pay rentals of US$2,000 per month for 5 months (May-September 2021) for the Chegutu Service Station. On 4 September 2021, the respondent gave notice of termination of the lease agreement due to material breach, which was acknowledged by the applicant's lawyers on 6 September 2021. The respondent demanded vacant possession by 30 September 2021. On 2 October 2021, the respondent's director Mr Muduvuri visited the premises. The applicant alleged that on that date, the respondent terminated the lease and demanded vacation of the premises, and that unknown persons were deployed at Gokwe, Georgia Petroleum occupied Kadoma premises and attempted to occupy Chegutu, constituting spoliation. The applicant filed an urgent spoliation application on 5 October 2021. The respondent denied any invasion, stating it had already instituted legal eviction proceedings on 7 October 2021, and provided receipts showing the applicant continued selling fuel at the premises after filing the application.

• Whether the applicant was unlawfully despoiled of possession of the three service station premises
• What standard of proof is required in an application for a spoliation order
• Whether the applicant proved it was deprived of peaceful and undisturbed possession of the properties

The urgent chamber application for a spoliation order was dismissed with costs.

In an application for a spoliation order, being a final relief, the applicant must prove its case on a balance of probabilities, not merely a prima facie case. The applicant must prove: (1) that it was in peaceful and undisturbed possession of the property, and (2) that it was unlawfully deprived of such possession. Bold and unsubstantiated averments are insufficient. Where the applicant's own evidence shows it retained physical possession and control of the property, and where documentary evidence demonstrates continued occupation and business operations, the spoliation application must fail.

The court observed that the present application appeared to be made in order to pre-empt the eviction process which the applicant knew was on its way, given that the respondent had already instituted legal proceedings for eviction. The court noted that where third parties are allegedly involved in dispossession, they ought to be cited as co-respondents. The court also noted that where a landlord has already taken the legal route through eviction proceedings, allegations that the landlord simultaneously resorted to self-help require strong supporting evidence.

This case reinforces the evidentiary standard required for spoliation orders in Zimbabwean law, clarifying that applicants must prove dispossession on a balance of probabilities, not merely prima facie. It demonstrates that spoliation applications cannot succeed where the applicant's own evidence shows continued possession and physical control of the disputed property. The judgment also shows courts will scrutinize spoliation claims that appear to be tactical maneuvers to pre-empt legitimate legal eviction proceedings.