Duly Huni v George Pedzisai Fichani

The parties were involved in a long-running ownership dispute over four gold mining claims in Copper Queen, Gokwe North, having sued each other since 2012. In 2013, the applicant obtained an ejectment order against the respondent. In 2017, the applicant registered the mining claims in his name through HC 2666/17, a case in which the respondent alleged he was not cited despite the claims being registered in his name. The respondent was challenging this registration through a rescission application which was still pending. The applicant alleged that on 14 August 2021, the respondent and unidentified violent persons forcibly evicted him from the mining claims, not allowing him to remove his equipment and gold ore. The applicant approached the court on 18 August 2021 seeking a spoliation order. The parties had attended court together on 13 August 2021 for an interdict application brought by the applicant, which was dismissed.

• Whether the application for a spoliation order seeking final relief on an urgent basis was procedurally competent
• Whether the matter qualified for urgent treatment given the long-running dispute between the parties
• Whether the applicant had proven on a balance of probabilities that he was in peaceful and undisturbed possession of the mining claims
• Whether the applicant had proven on a balance of probabilities that he was unlawfully despoiled of possession by the respondent on 14 August 2021

The application for a spoliation order was dismissed with costs.

In an application for a spoliation order seeking final relief, the applicant must prove their case on a balance of probabilities. This requires demonstrating both peaceful and undisturbed possession and unlawful deprivation thereof. Where the respondent provides an alibi with supporting evidence and the applicant's account lacks corroboration despite the availability of witnesses and documentary evidence, the applicant fails to discharge the requisite burden of proof. A spoliation application is sui generis in nature and warrants the granting of a final order on an urgent basis. Urgency in such matters is determined by reference to when the alleged spoliation occurred and whether the application was filed without undue delay thereafter, not by the historical background of disputes between the parties.

The court observed that given the parties' long history of suing each other "left, right and centre," malice by either party cannot be ruled out. The court noted that one of the parties appeared to be "very cunning and vindictive" but stated that in the absence of concrete evidence, it was difficult to determine which one. The court expressed puzzlement as to why the applicant kept returning to court alleging invasion by the respondent if it was true that the respondent had not visited the mining claims since 2017 when they were registered in the applicant's name. The court suggested this pattern demonstrated that one party was being dishonest, though without sufficient evidence it could not determine which.

This case reinforces important principles in Zimbabwean spoliation law: (1) it confirms that spoliation applications are sui generis and can result in final orders being granted on an urgent basis; (2) it emphasizes that urgency is determined by when the cause of action arose, not by the history of disputes between parties; (3) it underscores that in applications for final orders, including spoliation orders, the applicant bears the burden of proving their case on a balance of probabilities; and (4) it demonstrates the critical importance of corroborative evidence, particularly in cases involving parties with a history of litigation and potential malice, where bare allegations unsupported by witness statements or documentary evidence will not suffice.