Lydmo Cleaning Services v Dairiboard Zimbabwe (Pvt) Ltd

The applicant was a statutory tenant leasing premises from the respondent since 1 August 1995 for operating a laundry business. In 2000, the City of Harare condemned the premises but issued a licence allowing operations while the applicant complied with minimum standards. By February 2002, the City of Harare ordered cessation of laundry operations until compliance with directives. The applicant subsequently attended to the complaints and obtained trade licences, resuming business. On 12 March 2015, the respondent disconnected the steam supply to the applicant's premises and threatened to cut electricity and water supplies. The applicant requested restoration of supply, but the respondent refused, leading to this urgent application.

• Whether the applicant had 'possession' of the steam supply for purposes of a spoliation order
• Whether spoliation relief is available in respect of incorporeal rights such as the right to use steam supply
• Whether the court could grant the spoliation order given the alleged City of Harare directive to close the premises
• Whether the disconnection of steam supply was lawful or unlawful
• Whether the applicant met the requirements for a mandament van spolie
• Whether the applicant was entitled to a prohibitory interdict against disconnection of water and electricity

A provisional order was granted: (1) The respondent was ordered to immediately restore steam supply to the applicant's rented premises at Lydmo Cleaning Services (Pvt) Ltd, Dairiboard Complex, 1225 Rekai Tangwena Avenue, Harare; (2) The respondent was ordered to pay costs of the application. The application for a prohibitory interdict against disconnection of water and electricity was dismissed.

The binding legal principles established are: (1) Spoliation relief is available not only for physical possession of corporeal property but also for possession of incorporeal rights, including contractual rights of use; (2) Possession of an incorporeal right consists in the exercise of control over the incorporeal coupled with animus to exercise such control, and is exercised when the thing is exploited in accordance with an actual or presumed legal right such as a contractual right of use; (3) A person in possession of a right to use utilities (such as steam supply) under a lease agreement may seek spoliation relief when unlawfully deprived of such use; (4) The two requirements for mandament van spolie remain: peaceful and undisturbed possession, and deprivation of that possession forcibly or wrongfully without consent; (5) A party alleging that granting relief would contravene a lawful municipal directive bears the burden of proving the existence and content of such directive.

The court observed that had the respondent provided proof that the City of Harare had actually condemned the premises and ordered their closure, the court would have followed the principles in Drama Farm (Pvt) Ltd v Madondo NO & Anor 1998 (2) ZLR 410 and dismissed the application, finding the disconnection lawful as compliance with a lawful directive of a Local Authority. The court also commented that for a prohibitory interdict, the applicant must prove: a prima facie right, reasonable apprehension of irreparable harm if the interdict is not granted, no alternative satisfactory remedy, and that the balance of convenience favours granting interim relief. The court noted the applicant's failure to adequately address the balance of convenience requirement.

This case is significant in Zimbabwean property law as it confirms that the remedy of spoliation (mandament van spolie) extends beyond physical possession of corporeal things to include possession of incorporeal rights derived from contractual arrangements. It clarifies that a lessee's right to use utilities supplied under a lease agreement constitutes 'possession' capable of protection through spoliation remedies. The case also demonstrates the court's approach to allegations that granting relief would contravene municipal directives, requiring clear proof of such directives rather than accepting assertions as common cause.