Komborerai Nhenga aka Chapungu v Ephert Saka and Egesi Garepi

The first applicant was a tenant of the second applicant at stand number 3290 Magwegwe North, Bulawayo. The respondent obtained a court order for eviction following litigation over possession of the property. On 24 January 2017, the respondent approached the first applicant with the court order. An appeal had been noted against the eviction judgment. On 25 January 2017, the first applicant alleged that the respondent, together with 10-15 thugs, forcibly evicted him and his family, throwing their belongings out during rainy and chilly weather. The respondent denied these allegations, asserting that the first applicant was advised of the court order amicably, and that he voluntarily arranged alternative accommodation and removed his belongings with his wife's assistance using a removal truck. The second applicant claimed his late father's estate had a claim to the property based on an alleged agreement of sale entered approximately 32 years ago, for which the purchase price was never paid in full and no formal claim had been lodged.

• Whether the applicant established the requirements for a spoliation order (peaceful and undisturbed possession, and unlawful dispossession without consent)
• Whether leave to execute the eviction judgment pending appeal should be granted
• Whether the appeal against the eviction order had reasonable prospects of success
• The validity and relevance of section 120 of the Administration of Estates Act in the context of the dispute
• Whether the alleged agreement of sale gave the applicants any right to occupy the property

a) The urgent chamber application in HC 267/17 is dismissed with costs at an attorney and client scale. b) The counter application in HC 303/17 succeeds with costs at an attorney and client scale.

In spoliation proceedings, an applicant must prove both peaceful and undisturbed possession and unlawful dispossession without consent. Where the applicant fails to provide adequate corroborating evidence and fails to adequately respond to challenges raised by the respondent, and where the respondent's denials are not far-fetched or clearly untenable, the court may dismiss the application without resolving disputes of fact. In applications for leave to execute pending appeal, the court exercises discretion having regard to: (1) preponderance of equities; (2) prospects of success on appeal; and (3) balance of hardship. An applicant opposing execution pending appeal must substantively establish prospects of success, not merely make bold assertions based on legal advice. The doctrine of privity of contract limits third parties from challenging the validity of contracts to which they are not party. Mere assertions of ancient, unsubstantiated claims do not constitute reasonable prospects of success on appeal. Abuse of court process through dishonest presentation of facts justifies punitive cost orders on an attorney-client scale.

The court observed that there is nothing sinister in a party advising another of the existence of a court order and its consequences, or giving them a chance to comply before execution. The court commented that the application appeared to be an afterthought after the first applicant had already consented to vacate and had done so, and constituted an abuse of court process tainted with dishonesty by a litigant who deliberately twisted facts to achieve a certain end. The court noted that even if the agreement of sale were found invalid for want of compliance with section 120 of the Administration of Estates Act, this would not translate into a right of occupation by the applicants, as the estate of the late Bester Philip would remain vested with ownership and occupation rights until a court found otherwise, and only the executrix had authority to grant such rights. The court observed that the applicants appeared to merely want to retain possession and collect rentals despite having no valid basis, and were "clutching at straws" with their legal arguments.

This case reinforces important principles in Zimbabwean property and civil procedure law: (1) the strict requirements for establishing a spoliation order, particularly the need to prove lack of consent through concrete evidence rather than bare allegations; (2) the duty of applicants in motion proceedings to present adequate factual averments and respond fully to challenges in opposition papers; (3) the consequences of failing to corroborate allegations with supporting evidence from witnesses; (4) the application of the Econet test for granting leave to execute pending appeal; (5) the principle that abuse of court process and dishonest twisting of facts will result in punitive cost orders; (6) the application of the doctrine of privity of contract in property disputes; and (7) that parties cannot rely on unsubstantiated claims to ancient agreements to frustrate valid court orders. The case demonstrates the court's intolerance of dilatory tactics and its willingness to impose punitive costs where litigants abuse court processes.