Marry Mubaiwa-Chiwenga v Constantino Guvheya Dominic Nyikadzino Chiwenga

The applicant and respondent are married customarily with three minor children. In June 2019, the respondent (Vice-President of Zimbabwe) went overseas for medical treatment and did not return to the matrimonial home at 614 Nick Price Drive, Borrowdale. On 14 December 2019, the applicant was arrested and incarcerated until granted bail on 6 January 2020. During her incarceration, the respondent returned to the matrimonial home. Upon her release on bail, the applicant was refused entry to the matrimonial home by members of the Presidential Guard, denied access to her personal belongings and motor vehicles, and denied custody and access to the minor children. The applicant also alleged she was refused access to her business premises at Orchid Gardens by armed military personnel. The respondent argued that the applicant could not reside at the property as it was the Acting President's residence, that he had no other home, and that one of her bail conditions prohibited her from interfering with witnesses (including himself).

• Whether the application was urgent and properly brought before the court
• Whether the founding affidavit contained inadmissible hearsay evidence
• Whether the applicant was unlawfully dispossessed (spoiled) of the matrimonial home at 614 Nick Price Drive
• Whether the applicant was unlawfully dispossessed of her business premises at Orchid Gardens
• Whether the applicant was unlawfully dispossessed of motor vehicles and personal belongings
• Whether the applicant was entitled to custody of the minor children under section 5(1) of the Guardianship of Minors Act
• Whether eviction from the matrimonial home without a court order violated section 74 of the Constitution
• Whether a final order could be granted in spoliation proceedings rather than an interim order

The court ordered: (1) The respondent to restore custody of the three minor children to the applicant within 24 hours; (2) The respondent is interdicted and restrained from interfering with the applicant's access to, use and enjoyment of 614 Nick Price Drive, Borrowdale; (3) The respondent is interdicted and restrained from interfering with the applicant's access to, use and enjoyment of Orchid Gardens, Domboshawa; (4) The respondent is interdicted and restrained from interfering with the applicant's access to, use and enjoyment of the motor vehicles (Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350); (5) The respondent is interdicted and restrained from denying the applicant access to her clothing; (6) The respondent is ordered to pay the applicant's costs of suit. The application for return of safes and furniture allegedly removed from Orchid Gardens was refused.

In spoliation proceedings, an applicant must prove: (1) that she was in peaceful and undisturbed possession of the property; and (2) that the respondent deprived her of possession forcibly or wrongfully against her consent. Ownership and rights to property are irrelevant in spoliation proceedings - the remedy protects possession and prevents persons from taking the law into their own hands. Section 74 of the Constitution prohibits eviction from one's home without a court order made after considering all relevant circumstances. Under section 5(1) of the Guardianship of Minors Act, when spouses separate and commence to live apart, the mother has sole custody of minor children until a court order regulating custody is made. The rule of law requires that all persons, including government officials regardless of rank, are equally accountable under the law. No person may use state resources, including military personnel, to settle private matrimonial disputes. Courts have inherent power under section 176 of the Constitution to regulate their own processes and may grant final relief where a clear right has been established on a balance of probabilities, even where interim relief was initially sought.

The court made several significant obiter observations: (1) That Zimbabwe is a young constitutional democracy still finding its way to full compliance with constitutional values and ideals; (2) That the Constitution represents a decisive break from the normalization of abuse of state power that preceded it; (3) That courts exist to ensure everyone is accountable to the law and to protect constitutional rights and freedoms; (4) That matters involving the welfare of minor children should be dealt with expeditiously as the court is the upper guardian of all minor children under section 81(3) of the Constitution; (5) That courts should be slow to place barriers before their doors when matters touch on the welfare of minor children; (6) That when interpreting legislation and developing common law, courts must promote the spirit, purport and objects of the Declaration of Rights under section 46(2) of the Constitution; (7) That the court must defend the Constitution and rule of law without fear or favour, particularly in cases involving the weak and downtrodden against the powerful; (8) That there cannot be one law for the powerful and another for the weak in a constitutional democracy; (9) Quoting Albert Dicey: 'with us every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.'

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It affirms that constitutional protections apply equally to all persons regardless of their rank, status or political office, reinforcing the rule of law principle that no one is above the law; (2) It confirms that section 74 of the Constitution prohibits eviction from one's home without a court order, even in matrimonial disputes; (3) It establishes that the use of state military resources to settle private matrimonial disputes is unconstitutional and contrary to fundamental constitutional values; (4) It clarifies the application of section 5(1) of the Guardianship of Minors Act, confirming that mothers are entitled to sole custody of minor children when spouses separate, subject to subsequent court orders; (5) It demonstrates the court's willingness to exercise its inherent constitutional power under section 176 to regulate its own processes and grant appropriate relief; (6) It reaffirms the principles of spoliation as a possessory remedy where ownership is irrelevant and the focus is on unlawful dispossession; (7) It emphasizes the court's role in defending constitutional values including gender equality, the rule of law, and accountability of public officials in Zimbabwe's constitutional democracy.