Herbert Mutasa v Stanley Mtetwa and Natsai Bvirakure

The applicant purchased property at No. 6 Ryehill Close, Greystone Park, Harare, obtaining title on 17 March 2017. The property was previously occupied by the first and second respondents under agreement with the previous owner, Tufnell (Pvt) Ltd. The applicant claimed he engaged Stewart Bumhira (the respondents' former gardener) as his gardener and asked him to stay on the property. The applicant filed a rei vindicatio action (HC 3622/17) against the respondents. On 4 January 2018, the respondents allegedly used the applicant's cement without authority and replaced it the same day. The applicant alleged that on 15 January 2018, the respondents forcibly removed Bumhira from the premises, constituting spoliation. The applicant filed an urgent chamber application for a spoliation order and interdict on 19 January 2018. The respondents opposed, arguing lack of urgency, improper certificate of urgency, and that no proper spoliation application was before the court. Stewart Bumhira had filed his own application (HC 99/18) on 5 January 2018 where urgency was declined. Contradictions existed regarding when Bumhira was despoiled - the applicant claimed 15 January 2018, while Bumhira's own affidavit indicated 4 January 2018.

• Whether the application met the requirements for urgency in terms of urgent chamber applications
• Whether the certificate of urgency was properly issued with due application of mind
• Whether a proper spoliation application was before the court
• Whether the applicant had demonstrated peaceful and undisturbed possession as required for spoliation relief
• Whether the applicant had locus standi to bring the application based on acts against Stewart Bumhira
• Whether the applicant breached the principle of utmost good faith required in urgent applications

The application was struck off the roll of urgent applications. The applicant was ordered to pay the costs of suit on an attorney and legal practitioner scale.

1. Utmost good faith is required of an applicant in an urgent application, and where there are contradicting facts, the privilege of being heard on an urgent basis is denied. 2. For a spoliation application to succeed, the applicant must demonstrate that they had peaceful and undisturbed possession of the property before the alleged act of spoliation. 3. A certificate of urgency must reflect proper application of mind by the certifying legal practitioner and cannot be a mere duplication of certificates in related matters. 4. An applicant lacks locus standi to bring a spoliation application based on acts perpetrated against a third party without proof of that person's authority or their joinder to the proceedings. 5. A litigant should not base their claim on false or incomplete information, and must fully advise the court of all circumstances surrounding the application (principle from Leadertrack (Pvt) Ltd v Smith HC 131/2003).

The court observed that the applicant could have joined Stewart Bumhira as a co-applicant in Bumhira's own application (HC 99/18) but chose not to do so. The court noted that disputed factual issues, such as whether Bumhira was employed by the applicant or the respondents, would require proof through viva voce evidence before they could be relied upon. The court commented that the applicant appeared to be attempting to "sneak in" the same issue from his rei vindicatio action as an urgent chamber application when it was not urgent, effectively engaging in contradictory litigation strategies.

This case reinforces critical principles governing urgent applications in Zimbabwean (and by extension South African) civil procedure. It emphasizes the strict requirement of utmost good faith (uberrima fides) in urgent applications, particularly where contradictions exist in the applicant's case. The judgment illustrates that courts will not grant urgent relief where there are material inconsistencies in the facts presented. The case also clarifies requirements for spoliation relief, specifically that an applicant must demonstrate actual peaceful and undisturbed possession before claiming despoliation. It demonstrates that certificates of urgency must reflect proper application of mind by the issuing legal practitioner and cannot be mere duplications. The judgment serves as a warning against forum shopping and attempting to circumvent pending court actions through urgent applications on contradictory grounds.