Farayi B. Nyapokoto v Officer Commanding Bulawayo Camps, Superintendent Moyo and Others

The applicant was a Detective Sergeant in the Zimbabwe Police Force. He was charged, tried, convicted and sentenced to 8 days imprisonment for contravening paragraph 14 of the Schedule of the Police Act [Chapter 11:10]. Dissatisfied with the conviction, he filed an appeal with the High Court (HC 01/10) which was pending. Subsequently, the respondents evicted the applicant from his police accommodation at number 28 Fourth Street, Ross Camp, Bulawayo without obtaining a court order. At the time of eviction, the applicant was on bail in a separate matter before the Magistrate's Court, with one of his bail conditions requiring him to reside at the Ross Camp address from which he was evicted.

• Whether the respondents acted unlawfully in evicting the applicant from police accommodation without a court order
• Whether the applicant was entitled to protection from spoliation despite having only a privilege rather than a right to the accommodation
• Whether the eviction breached the applicant's bail conditions imposed by the Magistrate's Court
• Whether the eviction would prejudice the applicant's pending appeal

The application succeeded. The court ordered that: (1) Pending determination of the appeal (HC 01/10), respondents must immediately restore the applicant to peaceful and vacant occupation of Number 28 Fourth Street, Ross Camp, Bulawayo; (2) If respondents had given occupation to any third party, they must immediately remove that occupant, failing which the Deputy Sheriff was authorized to evict such occupant and place the applicant into vacant occupation; (3) Respondents must not threaten, harass, victimize or disturb the peace of the applicant and his family in occupation of the property; (4) The provisional order was to be served by the Deputy Sheriff upon the respondents or persons found at Mzilikazi Police Station, Bulawayo.

A person in peaceful possession of property is entitled to protection from spoliation regardless of whether their possession is based on a right or merely a privilege. Eviction without a court order constitutes unlawful spoliation. An administrative authority cannot lawfully evict an occupant from its property without obtaining a court order, even if the occupation was granted as a privilege rather than a contractual or legal right. Eviction that results in breach of bail conditions imposed by a competent court is unlawful. Where an appeal is pending, actions that would render any potential success in that appeal nugatory should be restrained.

The court noted that while the respondents may have been correct that accommodation was a privilege and not a right under conditions of service, this did not dispose of the legal protection against spoliation. The court also observed that questions about procedural irregularities in filing an appeal should properly be raised during the appeal hearing itself, not used as a basis to deny interim relief, once the court is seized with the matter.

This case is significant in Zimbabwean jurisprudence as it affirms the protection against spoliation applies even where possession is based on a privilege rather than a legal right. It establishes that administrative authorities, including police command structures, cannot evict occupants from premises without following due process and obtaining a court order, regardless of their ownership of the property. The case also demonstrates judicial protection of bail conditions imposed by lower courts and the principle that pending appeals should not be rendered meaningless by administrative actions taken before their determination.