Dumisani Sibanda and C. Gauche (Pvt) N.O. v Chief Ndlovu and Others

The applicants were in occupation of property at 103 Robert Mugabe Way in Bulawayo. Litigation was commenced in the Magistrates' Court by the 1st respondent for the eviction of the applicants. The applicants noted an appeal against the Magistrates' Court decision on 28 May 2021. The notice of appeal was served on the Messenger of Court on 4 June 2021, while the Messenger of Court was already executing the ejectment order without knowledge of the pending appeal. The Messenger of Court had removed the applicants' property and left it on the pavement, and had given the keys to the respondents. Upon being served with the notice of appeal, the Messenger of Court immediately stopped the execution process. The applicants then collected their property from the pavement. Applicants contended that since there was a pending appeal, the eviction was unlawful and constituted spoliation.

• Whether the execution of a court order by the Messenger of Court without knowledge of a pending appeal constitutes spoliation
• Whether spoliation can occur simultaneously with the execution of a valid court order
• What is the appropriate legal remedy when a Messenger of Court executes an order without knowledge of an appeal

The application was dismissed with costs.

Spoliation cannot occur simultaneously with the execution of a valid court order by a person lawfully mandated to execute such order. Where the Messenger of Court executes an ejectment order without knowledge of a pending appeal, this does not constitute spoliation as it is not an act of taking the law into one's own hands but rather the lawful execution of a court order. The appropriate remedy in such circumstances is not a spoliation order but rather an application for the Messenger of Court to return the property that was erroneously removed.

The court observed that only after the Messenger of Court had returned items to the premises following an erroneous eviction would applicants potentially be entitled to a spoliation order, and only if respondents then took the law into their own hands to evict the applicants. The court suggested that irregular execution processes should be challenged on bases other than spoliation, such as seeking orders compelling the Messenger of Court to restore possession of property that was erroneously removed.

This case clarifies the boundaries of the mandament van spolie (spoliation remedy) in Zimbabwean law, particularly in relation to the execution of court orders. It establishes that the lawful execution of a court order by the Messenger of Court, even if done without knowledge of a pending appeal, does not constitute spoliation. The case provides guidance on the appropriate remedies available when court orders are executed irregularly or erroneously, distinguishing between unlawful self-help (spoliation) and irregular but lawful execution processes.