Marinda Fenesey v Gateway Primary School and KM Ricquebourg N.O. and Gateway Primary School Parents Association and The Sheriff of Zimbabwe

The applicant leased a tuck shop situated at Gateway Primary School from the Parents' Association Committee and had been a statutory tenant since 2011. On 6 February 2017, she was given notice of termination of the lease effective 6 April 2017. On 5 April 2017, the applicant's legal practitioners challenged the termination as being without good cause. The applicant stocked the tuck shop in anticipation of the second school term. On 9 May 2017, the school opening day, the second respondent allegedly barred everyone from buying from the tuck shop via an announcement at school assembly, and people were deployed to guard against anyone buying from the tuck shop. On 10 May 2017, the applicant found additional locks installed on the tuck shop, preventing her access. The respondents contended that the applicant had voluntarily given up possession and that the Gateway Schools Trust had taken over the premises, and that the applicant was not in possession during April 2017.

• Whether the applicant was in peaceful and undisturbed possession of the tuck shop at the time of alleged dispossession
• Whether the applicant was unlawfully deprived of possession
• Whether the tuck shop constitutes 'commercial premises' under the Commercial Premises (Rent) Regulations, SI 676/1983
• Whether restoration of possession is practicable
• Whether the notice of termination complied with section 22 of the Commercial Premises (Rent) Regulations
• Whether the respondents' actions violated section 24 of the Commercial Premises (Rent) Regulations

A provisional spoliation order was granted in terms of the draft order, directing: (1) the first to third respondents to be interdicted from interfering with the applicant's business operations at the tuck shop; (2) the first to third respondents not to unlawfully evict the applicant; (3) costs on an attorney and client scale against the first to third respondents. Interim relief included ordering respondents to remove additional locks and restore the applicant's peaceful possession, ordering the second respondent to publicly reverse the ban on pupils and teachers buying from the tuck shop, and granting leave for service of the order.

The binding legal principles established are: (1) For purposes of a spoliation order, possession is not dependent on who has better title but requires proof that the applicant was unlawfully dispossessed or prevented from resuming possession; (2) A tuck shop operated under lease for business purposes constitutes 'commercial premises' within the definition of the Commercial Premises (Rent) Regulations, SI 676/1983; (3) Section 24 of the Commercial Premises (Rent) Regulations prohibits landlords from preventing lessees from using or occupying premises without obtaining a court order; (4) Self-help remedies such as installing additional locks to prevent tenant access constitute unlawful spoliation; (5) The law on spoliation protects a possessor in retaining physical control or regaining it where unlawfully deprived, and parties must not take the law into their own hands.

The court observed that it has become predictable in urgent applications for the opposing side to raise preliminary issues, and commended counsel for abandoning points in limine in favour of hearing the matter on merits. The court noted that if the applicant had voluntarily vacated the premises, there would have been no need to install additional locks or make an announcement at assembly. The court commented that the claim regarding verbal abuse of a pupil could be pursued through adequate legal remedies by the aggrieved party and was not a valid reason to deny restoration of possession.

This case reinforces the fundamental principle of South African and Zimbabwean property law that spoliation remedies protect possession regardless of title, and that self-help remedies are prohibited. It confirms that commercial premises legislation applies to tuck shops operated under lease agreements even when situated on school premises. The case demonstrates that landlords must comply with statutory procedures under commercial premises regulations and cannot resort to extra-judicial means such as installing locks or preventing access to evict tenants. It emphasizes that deteriorated relationships or allegations of misconduct do not justify denying restoration in spoliation proceedings where other legal remedies are available.