Jet Ventures (Private) Limited v Rainbow Tourism Group Limited t/a Rainbow Towers Hotel & Conference Centre

On 27 July 2017, the parties entered into a written agreement whereby the applicant was to renovate a portion of the respondent's hotel at the second mezzanine floor of Rainbow Towers Conference Centre to establish a nightclub, which would then be run as a partnership for mutual benefit. The applicant was to complete construction work by 1 October 2017, but failed to do so. The parties signed an addendum extending the completion deadline to 11 September 2018, with partnership operations to commence on 1 October 2018 for a 5-year period. The applicant again failed to complete construction by the extended deadline. On 11 September 2018, the respondent terminated the agreement citing the applicant's failure to complete construction work and requested removal of the applicant's tools and machinery from the premises. The applicant filed HC 8411/18 on 14 September 2018 seeking to set aside the termination and for an extension of time. Over three weeks later, on 3 October 2018, the applicant filed this urgent application seeking spoliatory relief to restore access to the premises and its tools and machinery.

• Whether the applicant was in peaceful and undisturbed possession of the premises for purposes of a spoliation order
• Whether the respondent unlawfully deprived the applicant of possession
• Whether access to property for construction purposes constitutes possession sufficient to ground a spoliation order
• Whether spoliation proceedings are an appropriate remedy where the dispute concerns contractual rights of performance

The application was dismissed with costs on a legal practitioner and client scale (attorney and client scale).

A contractor who has been granted access to premises solely for the purpose of performing construction work does not thereby acquire peaceful and undisturbed possession of those premises sufficient to ground a spoliation order. Access to property does not extend to the right of possession. Spoliation proceedings are not the appropriate remedy for disputes concerning contractual rights to performance - the proper remedy is an action for specific performance together with interlocutory relief if available. To establish possession for purposes of spoliation, an applicant must demonstrate the requisite measure of physical control necessary to acquire or retain possession; mere access for service provision purposes is insufficient, particularly where such access is non-exclusive and the property owner retains possession.

The court observed that there was merit in the point in limine regarding lack of urgency, given that the applicant waited more than three weeks after the alleged spoliation before filing the urgent application, but declined to decide the matter on such legal technicalities. The court also noted that the application appeared to be an attempt to side-step the pending application in HC 8411/18 and defeat the cancellation of the agreement via spoliation proceedings rather than a genuine case of spoliation. The court commented on the applicant's lack of good faith regarding when the need to act arose and inconsistencies regarding the tools and machinery, noting that the applicant had admitted in correspondence that it was asked to remove its property but later suggested it was denied access to these items.

This case is significant in Zimbabwean law (applicable to South African jurisprudence given the shared legal principles on spoliation) as it reinforces the distinction between mere access to property and actual possession for purposes of spoliation relief. It clarifies that contractors who are granted access to premises to perform construction work do not thereby acquire possessory rights that can be protected through the mandament van spolie. The case emphasizes that spoliation proceedings cannot be used as a substitute remedy to enforce contractual rights to performance, and that the proper remedy in such cases is an action for specific performance with appropriate interlocutory relief. It reaffirms the principle established in Kama Construction that access does not equate to possession.