Jeremiah Gwaku and Jerry Engineering (Private) Limited v Admire Majari and Adiva Mines (Private) Limited

The first applicant was a director of the second applicant. The second applicant had been leasing a workshop in Kadoma from the Cold Storage Company since 2008. In 2012, the first applicant invited the first and second respondents to share the workshop. The first applicant and first respondent formed a company called Adjerry (Private) Limited, which was later dissolved due to problems between them. After the dissolution, a dispute arose regarding occupation of the workshop. The Cold Storage Company awarded occupation to the first applicant. On 30 March 2016, while the first applicant was in Zambia, the respondent began removing machinery and equipment from the premises. Police intervention stopped the removal temporarily, but the respondent returned the following day and removed the equipment while the applicants' employees were arrested following an assault complaint. The applicants could not locate the property after the first applicant returned from Zambia on 1 April 2016.

• Whether the applicants were in peaceful and undisturbed possession of the property removed from the workshop
• Whether the applicants were unlawfully deprived of such possession
• Whether the applicants established the requirements for a mandament van spolie

The application was dismissed. The applicants were ordered to pay costs jointly and severally, the one paying the other to be absolved.

To obtain a mandament van spolie, an applicant must prove: (1) that they were in peaceful and undisturbed possession of the property; and (2) that they have been unlawfully deprived of such possession. The failure to establish possession of the property removed is a valid defence to a request for a mandament van spolie, as the remedy is designed to protect possession. Mere assertions of possession without documentary or other concrete evidence are insufficient, particularly where the opposing party produces documentary evidence of their own possession.

The court observed that counsel's submission during argument that the case involved joint possession was not supported by the averments in the affidavit or any other evidence, and was certainly not the basis of the relief set out in the founding affidavit. The court also commented that there were no special reasons in the matter to warrant the imposition of a punitive order of costs on a legal practitioner-client scale.

This case illustrates the strict evidentiary requirements for establishing a mandament van spolie (spoliation order) in Zimbabwean law. It demonstrates that applicants must provide concrete evidence of possession, not merely assertions, and that documentary evidence supporting the opposing party's possession can be fatal to a spoliation application. The case reinforces that the mandament van spolie is designed to protect actual possession, and failure to prove such possession is a complete defence to the remedy.