Dr Petty Makoni v Zimbabwe Electoral Commission

The applicant was a former commissioner of the Zimbabwe Electoral Commission (respondent). In 2011, the respondent received 11 Toyota Prado vehicles donated by UNDP for use in the 2013 general elections. The applicant was issued one vehicle (Registration Number ACH 2506) for use in her capacity as commissioner. Upon expiry of her tenure, the respondent requested the applicant to surrender the vehicle, but she refused. The respondent instituted spoliation proceedings in the High Court seeking restoration of possession. On 18 March 2020, the High Court granted a spoliation order against the applicant, ordering her to restore possession of the vehicle to the respondent and awarding costs on a legal practitioner and client scale. The applicant noted an appeal on 24 March 2020. The Registrar invited her to file heads of argument by 13 May 2021, but she failed to do so. The heads were tendered one day late on 14 May 2021 and rejected. The appeal was deemed abandoned and dismissed under Rule 53 of the Supreme Court Rules, 2018. The applicant then applied for reinstatement of the appeal.

• Whether the application for reinstatement was moot due to developments after the noting of appeal
• Whether the applicant had shown good cause for default in filing heads of argument
• Whether the applicant had prospects of success on appeal
• Whether the applicant possessed the vehicle on behalf of the respondent or in her personal capacity
• Whether the applicant could exercise a right of lien against the respondent

The application for reinstatement was dismissed with costs on an ordinary scale.

1. A juristic person can only exercise possession through its agents, servants, or functionaries. Where a person holds property on behalf of another (as custodian), they do not have possession themselves; the possessor is the person on whose behalf they are holding. 2. A right of lien is a form of security that affords a defence against the owner's vindicatory action (rei vindicatio), and can only be exercised against the owner of the property in question, not against a non-owner who has possessory rights. 3. For an application for reinstatement of an appeal deemed abandoned, the applicant must show good cause by considering factors including: (a) the degree of non-compliance and explanation thereof; (b) prospects of success on appeal; (c) the importance of the case; (d) the respondent's interest in finality; and (e) convenience to the court and avoidance of delays. 4. A matter is not moot merely because of assurances or undertakings that have not yet materialized and which do not constitute a deed of settlement resolving the actual controversy between the parties.

The court observed that the applicant's claim for a conditions of service vehicle from the appointing authority is a separate claim that she can pursue if necessary, and that developments regarding such claim do not affect the spoliation proceedings. The court noted that other commissioners in similar circumstances had surrendered their vehicles back to the respondent at the end of their tenures, which was consistent with the agreement between the respondent and commissioners. The court also commented that an assurance that exists only on paper without a timeframe for fulfillment has the potential to create another cause of action if not fulfilled.

This Zimbabwean case provides important guidance on: (1) the principles governing applications for reinstatement of appeals deemed abandoned under court rules; (2) the distinction between possession and detention/custody in the context of juristic persons exercising possession through functionaries; (3) the requirements for exercising a right of lien, particularly that such right must be exercised against the owner of property; and (4) the test for determining when matters become moot in the context of assurances versus actual settlement of disputes. The case reinforces that agents or employees who hold property on behalf of their principals or employers do not possess that property in their personal capacity and must surrender it upon termination of their employment or tenure.