Crowhill Farm (Private) Limited v Florence Pambukani (nee Behane) and Felix Pambukani

The applicant, Crowhill Farm (Private) Limited, is a company that owns land known as Chirika Extension of Borrowdale Estate (121.4029 hectares) and Lot J of Borrowdale Estate (724.0475 hectares) under Deed of Transfer No. 1214/86. The respondents (husband and wife) occupy an undivided 0.0298% share (share number 702) in Lot J of Borrowdale Estate. On 19 February 2021, the respondents, with unknown persons, allegedly unlawfully occupied the applicant's land beyond their entitled share, chased away the applicant's guards, builders and caretakers, dug shafts, graded roads, fenced the area, took occupation of the applicant's site office, and demanded development fees. The applicant reported the matter to Borrowdale Police Station. The respondents claimed they had been in lawful occupation since August 2020 pursuant to various court orders, including an order by Justice Chitapi (HH 406-20) which reinstated their Deed of Transfer No. 2410/10. The respondents denied despoiling the applicant and claimed the applicant's employees fled when police attempted to arrest them for contempt of court.

• Whether the application was fatally defective for failure to use the correct form (Form 29) as required by the High Court Rules
• Whether the matter was urgent
• Whether there was a material dispute of fact requiring oral evidence
• Whether there was material non-disclosure by the applicant
• Whether an act of spoliation had taken place
• Whether a spoliation order could be granted as an interim or final order
• Whether costs should be awarded on an attorney-client scale or ordinary scale

1. The respondents or any of their agents/employees are ordered to restore possession of land in Crowhill Estate (excluding the undivided 0.00298% share number 702 in Lot J of Borrowdale Estate) to the applicant immediately upon service, failing which the Sheriff is directed to eject them and restore occupation to the applicant. 2. The respondents or their agents/employees are ordered to cease operations and remove all equipment and materials from the land (excluding share 702) immediately upon service, failing which the Sheriff is directed to remove such equipment and materials. 3. The respondents shall pay costs of suit on the ordinary scale, jointly and severally, the one paying the other to be absolved.

The binding legal principles established are: (1) A spoliation order can only be granted as a final order and not on an interim basis, as it determines the immediate right of possession. (2) To establish spoliation, an applicant must demonstrate peaceful or undisturbed possession and that the respondent disposed him forcibly and wrongfully without his agreement. (3) The lawfulness or otherwise of the applicant's possession does not fall for consideration in spoliation proceedings - ownership is irrelevant. (4) The purpose of mandament van spolie is to preserve law and order and discourage persons from taking the law into their own hands by restoring the status quo ante. (5) Spoliation applications are by their nature urgent. (6) An application is not fatally defective merely for using Form 29B instead of a modified Form 29 where it still contains the essential elements. (7) A party does not create a real dispute of facts by merely denying allegations; that party must present a story that would lead the court to conclude a genuine dispute exists that cannot be resolved on the papers. (8) What is not disputed in affidavit evidence is taken as admitted.

The court made several obiter observations: (1) Any perceived delay in instituting mandament van spolie is not necessarily fatal to the application (citing Dodhill v Minister of Lands). (2) Courts should take a robust and common sense approach to achieve justice (citing the Constitutional Court in Douglas Muzanenhamo). (3) The court noted that if the respondents had a valid eviction order under MC 123/21, there would be no reason to invoke contempt charges instead of simply enforcing the writ. (4) The court observed that while the applicant sought punitive costs on an attorney-client scale, in order to successfully claim such costs, a litigant must show that the other party deserves to be penalized for its conduct of the litigation, and on the facts ordinary costs sufficed. (5) The court noted that it would not examine the correctness of Justice Chitapi's judgment in HH 406-20 as that issue was not before it and concerns ownership, not possession.

This case is significant in Zimbabwean property law as it reaffirms fundamental principles regarding mandament van spolie (spoliation orders). The judgment clarifies that: (1) spoliation orders are final in nature, not interim; (2) spoliation applications are inherently urgent given their purpose of preserving law and order and preventing self-help; (3) ownership rights are irrelevant in spoliation proceedings - only peaceful possession and wrongful dispossession matter; (4) the remedy aims to restore the status quo ante pending determination of rights by a competent court; (5) taking the law into one's own hands is not permitted even where one may have superior ownership rights. The case also provides guidance on procedural issues including the proper forms for urgent chamber applications and the approach to alleged material disputes of fact. It demonstrates the court's robust, common sense approach to achieving justice while upholding the rule of law.