L.S Waters (Pvt) Ltd and Johannes Jakobus Laubscher v Zimbabwe National Water Authority and Others

The applicants operated a commercial bulk water abstraction and bottling plant at No. 10 Metcalf Road, Greendale, Harare from 2008 pursuant to a permit granted by the respondents under the Water Act [Chapter 20:24]. Their permit expired on 31 December 2015. In January 2016, they applied for renewal but continued operations despite not receiving a new permit. On 12 November 2015, before expiry, the second respondent notified them of a ban on bulk water abstraction in residential areas, giving 7 days' notice to cease operations by 19 November 2015, citing the need to protect groundwater resources. The applicants ignored this directive and appealed to the Administrative Court on 18 November 2015 (case Misc/WZ3A/15, still pending). Further warnings were issued on 19 January 2016 and 2 February 2016. The applicants filed another appeal on 10 February 2016 (case Misc/WA/03/2016) against non-renewal of their permit. On 10 February 2016, the applicants' equipment (water pumps, tanks, pipes, electrical cables) was seized. The applicants alleged the first to sixth respondents seized the property. The respondents contended the police seized the equipment following a criminal report (RRB 273161, CR 109/02/16) made by the second respondent, as authorized by section 17A(5) of the Water (Permits/Amendment) Regulations SI 90/2013.

• Whether the applicants satisfied the requirements for a mandament van spolie (spoliation order)
• Whether the applicants proved peaceful and undisturbed possession prior to the alleged spoliation
• Whether the respondents unlawfully deprived the applicants of possession
• Whether the respondents had a valid defense that they did not commit the spoliation
• Whether the police seizure under statutory authority constituted lawful action excluding the mandament van spolie
• Whether the applicants were despoiled of immovable property No. 10 Metcalf Road
• Whether the applicants adequately identified the spoliators

The application was dismissed with costs.

To succeed in a spoliation application, the applicant must not only prove peaceful possession and unlawful deprivation, but must adequately identify the spoliator(s), particularly when juristic persons are involved. Where respondents raise a defense that a third party (such as the police) acting under statutory authority committed the alleged spoliation, the applicant must prove on a balance of probabilities that it was the respondents and not the third party who deprived them of possession. An order for restoration cannot be granted where the property is not in the control of the respondents but is held by a third party not joined to proceedings. Spoliation requires actual deprivation of possession, not mere disturbance thereof. Statutory authority for seizure can exclude the operation of the mandament van spolie.

The court observed that the applicants perhaps should have taken the hint from the respondents' point in limine regarding joinder and joined the police as co-respondents, particularly given the respondents' consistent assertion that police held the property pursuant to a criminal report. The court also noted that statutes excluding the mandament van spolie are interpreted restrictively. The judge indicated that the proper remedy for disturbance of possession through threats and frequent visits (as opposed to actual deprivation) is not a spoliation order but some other form of relief.

This case clarifies the requirements for spoliation orders in Zimbabwean law, particularly: (1) the need for precise identification of spoliators, especially when corporate entities are involved; (2) that statutory authority for seizure (such as police powers under water regulations) can constitute a valid defense to spoliation; (3) the distinction between deprivation of possession (required for spoliation) and mere disturbance of possession; (4) that restoration orders are ineffective (brutum fulmen) where property is held by third parties not before the court; and (5) the importance of joining necessary parties (such as the police) where they are the actual actors in the alleged spoliation. The case demonstrates how mandament van spolie can be excluded by statute and that applicants bear the burden of proving the identity of spoliators.