Khalil Gaibei and Shabeira Gaibei v The Illegal Occupants of Office 1, 3, 4, 7 and 9 Elons Court Bulawayo

The applicants owned property known as Elons Court, 3rd Avenue/Main Street, Bulawayo, as evidenced by title deeds. The respondents took occupation of offices 1, 3, 4, 7 and 9 of the building without any lease agreement or permission from the applicants. The respondents admitted they had no legal basis for entering the premises but claimed the building was vacant and dilapidated at the time they occupied it. They used their own resources to repair and paint the building, and claimed this gave them a right to remain and be compensated for improvements before any eviction. There were two previous court orders (by Kamocha J on 4 August 2011 and Ndou J on 29 September 2011) directing eviction of similar or related respondents from the same premises, which had been ignored.

• Whether the applicants were in peaceful and undisturbed possession of the property prior to the respondents' occupation
• Whether the respondents' occupation constituted unlawful dispossession or spoliation
• Whether the respondents' claimed improvements to the property provided any defense to a spoliation order
• Whether continuous physical presence is required to establish possession for purposes of spoliation
• Whether a counter-claim for compensation for improvements can be raised in opposition to a spoliation application

The application was granted. The respondents and all those claiming through them were ordered to vacate Elons Court within 48 hours. The Deputy Sheriff was empowered to evict the respondents and return vacant possession to the applicants if they failed to comply. The respondents were interdicted from disturbing the applicants' vacant and peaceful possession and from denying the applicants or their authorized agents access to the premises. The respondents were ordered to pay costs on an attorney and client scale.

To obtain a spoliation order, an applicant must prove: (a) that the applicant was in peaceful and undisturbed possession of the property; and (b) that the respondent deprived the applicant of possession forcibly or wrongfully against consent. Continuous physical presence is not necessary for possession if the nature of operations on the premises does not require continuous presence. Claims for compensation for improvements made to property cannot be raised as a defense to a spoliation order and have no bearing on such an application, as they raise disputes of fact not capable of resolution in urgent chamber proceedings and must be pursued in separate proceedings. Occupation without permission or lease agreement, even of vacant property, constitutes unlawful dispossession amounting to spoliation.

The court commented that the respondents' investment in improving a building belonging to someone else without consent was not a wise investment. The court strongly criticized the conduct of legal practitioners acting for the respondents, stating their conduct was "not only deplorable but borders on being unethical" for opposing claims with full knowledge that the facts were based on the same cause of action, essentially playing a "cat-and-mouse game with the court." The court observed that courts should show their displeasure at such behavior, especially regarding legal practitioners taking instructions designed to defeat the ends of justice. The court noted that one of the parties had previously been found by Ndou J to have come to court with "dirty hands" in a related application for stay of execution.

This case reinforces the fundamental principles of spoliation law in Zimbabwe (which shares common law heritage with South Africa), particularly that: (1) spoliation provides a possessory remedy that does not depend on proof of ownership or legal rights; (2) claims for improvements or unjust enrichment cannot be raised as a defense to spoliation and must be pursued separately; (3) continuous physical occupation is not required to maintain possession for purposes of spoliation law; and (4) courts will not tolerate deliberate defiance of court orders or attempts by legal practitioners to frustrate justice through repetitive litigation on the same facts. The case demonstrates the court's willingness to use punitive costs orders (attorney and client scale) to express displeasure at unethical litigation conduct.