Disruptive Innovation (Pvt) Ltd v City of Harare and Others

The applicant was in possession and control of public toilets at Mbare Musika and Market Square Bus Terminus in Harare, which it managed as pay toilets pursuant to a lease agreement with the City of Harare (first respondent) dating from 2015. Previous disputes over arrear rentals led to litigation in 2017 (HC 8400/17), which was settled by a Deed of Settlement filed on 2 August 2019. The Deed of Settlement provided for due legal process in the event of breach. On 8 January 2022, officials of the first respondent descended on Mbare Musika and forcibly removed the applicant's employees, replacing them with the first respondent's employees. The same occurred at Market Square Bus Terminus on 15 January 2022. No court order authorized this dispossession. The respondent alleged that an incident in November 2021, where the applicant's employees denied an elderly woman access to toilets resulting in a public outcry, justified their actions.

• Whether the application was properly before the court despite a defective notice regarding time for filing opposing papers
• Whether the court should prefer substance over form in considering procedural defects
• Whether the applicant established the requirements for a mandament van spolie (spoliation order)
• Whether the respondent's alleged justification (the November 2021 incident) provided lawful grounds for dispossessing the applicant without due process

The application for a spoliation order was granted. The respondents were ordered to: (1) restore to the applicant within 48 hours peaceful and undisturbed possession of the Mbare Musika and Market Square Bus Terminus toilets; (2) not remove or threaten to remove the applicant from these premises except in terms of a lawful process; and (3) pay the applicant's costs jointly and severally, the one paying the others to be absolved.

The binding principles established are: (1) In urgent chamber applications, courts should prefer substance over form where there has been substantial compliance with rules and no prejudice results to any party; (2) To succeed in a spoliation application, an applicant must prove on a balance of probabilities that: (i) it was in peaceful and undisturbed possession of the property, and (ii) the respondent unlawfully deprived it of such possession; (3) A mandament van spolie is a final order, not an interim remedy, designed to prevent self-help; (4) Public authorities cannot resort to self-help to dispossess persons in peaceful possession, even where there may be grounds for terminating a contractual arrangement - they must follow due legal process including contractual remedies and eviction procedures as provided for in agreements or by law.

The court made observations that while the November 2021 incident involving the elderly woman was unfortunate and badly handled by the applicant's employees (noting that any business concerned with its corporate image would likely have assisted without insisting on payment), this did not justify the first respondent taking the law into its own hands. The court also observed that urgent chamber applications are essentially judge-driven, with the judge directing how the matter should proceed having regard to the nature of the case and the interests of justice. The court commended respondent's counsel for his candid acknowledgment that the facts suggested spoliation, demonstrating proper conduct as an officer of the court, though counsel had no instructions to consent to the relief.

This case reinforces important principles in Zimbabwean law: (1) the primacy of substance over form in procedural matters where no prejudice results; (2) the prohibition against self-help remedies, even by public authorities; (3) the protection afforded by the mandament van spolie to possessors unlawfully dispossessed, regardless of the merits of the underlying dispute; and (4) that public authorities must follow due legal process, including contractual remedies and eviction procedures, rather than resorting to forcible dispossession. The case affirms that even alleged public interest concerns do not justify circumventing established legal procedures.