On 9 January 2010, the respondent together with six other men entered the applicant's farm and forcibly dismantled a maize silo without the applicant's consent and without a court order. The applicant sought a spoliation order to restore possession. The respondent opposed the application on the basis that the applicant was not in peaceful and undisturbed possession of the silo, as it was in the possession of a committee of seven representatives appointed by A1 farmers settled where the silo was situated. The applicant conceded in its papers that it had not used the silo since 2002 due to fear of theft of grain and intended to use it only when the A1 farmers were relocated, with no specified timeframe for such relocation.
The application was dismissed with costs.
For a spoliation order to be granted, an applicant must establish: (1) that it was in peaceful and undisturbed possession of the property; and (2) that the respondent deprived it of such possession forcibly, wrongfully or illicitly. Further, the possession must consist of both animus (intention of securing a benefit) and detentio (physical holding). The applicant must be making physical use of the property to the extent that it derives a benefit from such use and intends by such use to secure that benefit to itself. Failure to establish peaceful and undisturbed possession is fatal to an application for spoliation. Where an applicant has not used property for an extended period and derives no benefit from it, spoliation relief will be denied.
The court cited with approval the observation from Bennett Pringle (Pty) Ltd v Adekide Municipality that the purpose of the possessory remedy is to prevent persons from taking the law into their own hands. The court noted that the applicant gave no timeframe for when the A1 farmers would be relocated, suggesting that the applicant's intention to use the silo in the future was too uncertain and indefinite to constitute the requisite animus for spoliation protection.
This case clarifies the essential requirements for obtaining spoliation relief in Zimbabwean law, emphasizing that mere ownership or theoretical possession is insufficient. The case reinforces that an applicant must establish both peaceful and undisturbed possession and actual physical use from which benefit is derived. It demonstrates that non-use of property for an extended period (in this case since 2002) will defeat a spoliation claim, as the possessory remedy is designed to protect actual, beneficial possession rather than dormant or theoretical rights.