Josephat Hatidikani Kevin Sachikonye v Korbs Mutandiro and Others

The applicant brought an urgent chamber application seeking restoration of possession of a piece of land known as "site Chorlotte at Godevary Farm", an interdict preventing the first to third respondents from tilling the soil, interrupting water supply or access to roads, and an order for the return of farming implements. The land in question belonged to the third respondent (EM Wier (Pvt) Ltd). There was pending litigation in case HC 3308/17 (summons issued 12 April 2017) dealing with ownership of shares in the property, the lawfulness of subdivision of part of Godevary Farm (Lot 2), and related relief. Minutes of a meeting at Millers Café on 21 April 2016 showed that the applicant had agreed to a 120-day period to plant and harvest his onion crop and then leave. The respondents averred that the disputed land had been ploughed in March and April 2017 in preparation for planting tobacco, maize and blueberries, and that the applicant had interfered with their farming operations.

• Whether the application met the requirements for urgency
• Whether the applicant was in peaceful and undisturbed possession of the land in dispute
• Whether the requirements for a spoliation order were satisfied
• Whether the requirements for an interdict were met
• Whether the matter was lis pendens given the pending litigation in HC 3308/17

The court ordered that the matter was not urgent and that the applicant should pay the costs of the application.

An urgent application will not be granted where: (1) the issues raised are already lis pendens in existing litigation; (2) the circumstances giving rise to the alleged urgency existed well before the application was brought, indicating the need to act should have arisen earlier; (3) the urgency is self-created; (4) the applicant has not shown peaceful and undisturbed possession for purposes of spoliation relief; (5) the requirements for urgency as set out in Kuvarega v Registrar General 1998 (1) ZLR 189 have not been met; and (6) disputed facts raised in opposing papers remain unchallenged in the absence of an answering affidavit.

The court observed that it appeared the third respondent had been despoiled of its peaceful possession of the land in dispute, rather than the applicant. The court also noted that the applicant's conduct in continuing to possess and plough the land after the agreed 120-day period for harvesting made no sense, suggesting the applicant was acting in breach of the agreement reached at the April 2016 meeting.

This case reinforces the principle that urgency cannot be self-created and that applicants must act promptly when circumstances giving rise to urgency first arise. It demonstrates that where issues are already lis pendens in existing litigation, this militates against urgency. The case also illustrates the importance of challenging disputed facts raised in opposing papers, as unchallenged allegations will be accepted by the court. It confirms that for spoliation relief, an applicant must show peaceful and undisturbed possession, and that the balance of convenience is a relevant consideration in urgent applications.