Infinity Car Sales and Others v First Turn Investments t/a Shar Car Sales and Another

The respondents were in occupation of premises at stand number 382 Bulawayo Township (Fairway Building) by virtue of a lease agreement. The appellants threatened the respondents with eviction and barred them from accessing the premises, attempting to take over control without a valid court order. On 8 February 2019, the respondents filed an ex parte application in the Magistrate's Court seeking a spoliation order. The Magistrate's Court granted an interim order on 19 February 2019 restoring vacant possession, control and use of the premises to the respondents. The appellants noted an appeal against this interim order on 22 February 2019, contending that the court a quo erred in entertaining an application made contrary to the Magistrates' Court rules and that the order was based on falsehoods.

• Whether an appeal lies against an interim spoliation order
• Whether the requirements for a spoliation order were satisfied
• Whether the appeal was defective at law for seeking to overturn an interim order
• Whether the proper remedy was to challenge the order on the return date rather than by appeal

The appeal was dismissed with costs. The interim spoliation order granted by the Magistrate's Court on 19 February 2019 was upheld.

An appeal does not lie against an interim order. Interim orders provide temporary interlocutory relief pending a final hearing and are not final orders that can be appealed. The proper remedy for challenging an interim spoliation order is either to anticipate the return date under the applicable rules or to wait for the return date to have the rule nisi discharged, not to file an appeal. The requirements for a spoliation order are: (a) the applicant must have been in peaceful and undisturbed possession of the property in question; and (b) the respondents must have despoiled them of possession unlawfully without following due process.

The court expressed concern about appeals being filed to delay and frustrate execution of lower court orders, which clogs the court system with frivolous appeals. The court indicated that in appropriate cases, it would order costs de bonis propris (against the legal practitioners personally) as a measure to curtail abuse of legal process. The court noted that the appellants were either not properly advised or were abusing court process, and that no meaningful argument was advanced at the hearing to support the appeal.

This case reinforces the fundamental principle in Zimbabwean civil procedure that interim orders are not appealable. It emphasizes that spoliation proceedings serve to provide quick remedies against parties who take the law into their own hands, and that such orders should not be subject to dilatory appeals. The judgment also signals the court's willingness to employ measures such as costs de bonis propris in appropriate cases to curtail abuse of legal process through frivolous appeals designed to delay execution of lower court orders.