Farai Ndemera v The Sheriff of Zimbabwe and Others

The applicant was evicted from stand number 419/420 Borrowdale Brooke Township, Harare on 26 March 2014 by the first respondent (Sheriff) pursuant to a court order dated 13 March 2014. The eviction was in favor of the second respondent, Edina Mukurazhizha, who had acquired title to the property. On 26 March 2014, the applicant filed an appeal to the Supreme Court against the eviction order. During the eviction process, at 12:29pm, the Sheriff's office received notice of the appeal while the eviction was still in progress - specifically, while the locksmith was changing the keys to the house. Despite being notified of the appeal, the Sheriff allowed the locksmith to complete the changing of locks, thereby preventing the applicant from re-entering the property. The applicant filed an urgent ex parte chamber application on 27 March 2014 seeking a spoliation order to be restored to possession pending the appeal.

• Whether the applicant was unlawfully despoiled of his possession of the property
• Whether the Sheriff's continuation of the eviction process after being notified of the appeal was unlawful
• Whether the eviction process was complete before notice of appeal was received
• Whether the applicant met the requirements for a mandament van spoliae (spoliation order)
• Whether a properly noted appeal suspends the operation of the judgment of the court a quo

The court granted the applicant the interim relief of a spoliation order (mandament van spoliae), restoring him to the status quo ante - the position he was in before being despoiled of possession.

The binding legal principles established are: (1) A properly noted appeal suspends the operation of the judgment of the court a quo; (2) An eviction process is not complete until all its constituent processes have been concluded, including ancillary steps such as changing locks; (3) A locksmith engaged to change locks as part of an eviction is part of the Sheriff's eviction team; (4) A Sheriff's initially lawful conduct becomes unlawful if he continues or allows continuation of any part of the eviction process after being notified that an appeal has been properly noted; (5) For a spoliation order, the applicant must prove: (a) he was in peaceful and undisturbed possession of the property, and (b) he was unlawfully deprived of such possession.

The court made observations about the second respondent's title to the property, noting that her right and title appeared to be "unassailable" although the applicant was contesting the acquisition in other cases before the court. The court also expressed gratitude to the Judge's professional assistant and the parties for accommodating the urgent nature of the matter and appearing at short notice at 4:30pm on a Friday. The court noted its view that the three respondents who did not oppose (first, third and fourth respondents) would abide by whatever decision the court would hand down.

This case is significant in Zimbabwean law as it clarifies the scope and timing of eviction processes in relation to appeals. It establishes that an eviction process includes all ancillary steps such as changing locks, and that a Sheriff acts unlawfully if he continues any part of the eviction process after being notified of a properly noted appeal. The case reinforces the fundamental principle that a properly noted appeal suspends the operation of the judgment being appealed against. It also demonstrates the application of the mandament van spoliae remedy and the court's willingness to use Rule 4C to conduct inquiries to resolve factual disputes in urgent applications.