Feature Phiri and Others v Lovemilk Gwati and Others

The applicants were three siblings (Feature Phiri, Kudzanai Roti, and Fraser Phiri) who stayed at the second applicant's homestead in Ward 17 Mwembezi village under Chief Nemakonde in Makonde since 2000, having been resettled there by the District Administrator. In July 2018, the respondents appeared at the homestead demanding that the applicants vacate on the basis that the homestead was situated within the first respondent's mining claim. The applicants alleged that on 17 April 2019, the respondents demolished the first applicant's bedroom with a bulldozer, and on 19 April 2019, hired thugs to chase them from their homestead. The applicants claimed they were now living as squatters with other villagers. They reported the matter to police at ZRP Kenzamba but no arrests were made. There were concurrent mining disputes between the parties before the Ministry of Mines and Mining Development, with decisions dated 4 October 2018 and 11 March 2019 both finding in favour of the first respondent, determining that his registered mining claim overrode Takunda Mining Syndicate's (of which the second applicant was a member) pending application. An appeal to the Minister was pending at the time of this application.

• Whether the applicants had satisfied the three requirements for a mandament van spolie (spoliation order)
• Whether the applicants had been dispossessed by the respondents
• Whether the application was urgent
• Whether there was material non-disclosure by the applicants
• Whether the applicants had proven their case on affidavit evidence

1. The application is dismissed. 2. The 1st, 2nd and 3rd applicants shall, jointly and severally the one paying the others to be absolved, bear the 1st, 2nd and 3rd respondents' costs of suit.

A spoliation order is a final and definitive order that requires clear proof on affidavit evidence of three elements: (1) peaceful and undisturbed possession at the time of dispossession; (2) unlawful deprivation of possession without due legal process and without consent; and (3) entitlement to restoration of possession. The order cannot be granted on evidence of a prima facie right. In application proceedings, the onus is on the applicant to place both pleadings and evidence before the court in the form of affidavits. Bare allegations made under oath, even if not denied, do not automatically constitute evidence sufficient to prove spoliation. The applicant must provide concrete supporting evidence such as photographs, documentary proof, and supporting affidavits from witnesses to substantiate serious allegations of dispossession.

The court made several observations of general application: (1) It drew a parallel with Cyclone Idai destruction to illustrate that real evidence of demolition should be readily available and producible without requiring an inspection in loco; (2) The court declined to accept the respondents' invitation for an inspection in loco, noting that respondents bore no onus to disprove spoliation and that it would be inappropriate for the court to take over the applicants' case by directing how they should prove it; (3) The court noted that demolition of someone's bedroom without consent constitutes the criminal offence of malicious damage to property, and that a copy of any police report should have been produced; (4) Legal practitioners were reminded of the fundamental difference between action and application proceedings - pleadings in action proceedings should not contain evidence (which is led at trial), whereas in application proceedings, both pleadings and evidence must be contained in affidavits; (5) The court rejected the "dirty hands" principle as completely inapplicable, noting that the mere filing of a police report against one of the applicants did not constitute proof of criminal transgression.

This case reinforces important principles regarding spoliation applications in Zimbabwean law. It emphasizes that: (1) a mandament van spolie is a final and definitive order that cannot be granted on prima facie evidence but requires clear proof of all three elements of spoliation; (2) in application proceedings, both pleadings and evidence must be contained in affidavits - mere allegations under oath do not constitute evidence unless admitted or not denied; (3) the onus is on the applicant to prove dispossession with concrete evidence such as photographs, supporting affidavits, and documentary proof; (4) collateral disputes (such as mining claim disputes) are not material to the determination of whether spoliation occurred. The case serves as a practical guide on the evidentiary requirements for spoliation applications and the distinction between action and application proceedings in terms of how evidence must be presented.