Monica Mugova and Edwell Mugova v Stanley Mwase and Wonderful Sedeya and Robert Musvosvi

The two applicants operate a scrap metal buying and selling business. In August 2022, the second respondent approached the first applicant to sell a scrapped case yellow machine, acting as the first respondent's agent. The applicants paid US$1,800.00 to the second respondent for transmission to the first respondent. The applicants took possession of the machine, stripped it, and realized 14 tonnes of scrap metal. On 24 August 2022, they transported the scrap metal to Costas Business Centre in Zvishavane and assigned Doubt Ncube to secure it while they looked for transport to Harare. On 31 August 2022, the respondents went to Costas Business Centre and, without the applicants' consent, loaded the scrap metal into a truck and transported it to Harare. The applicants discovered this on 2 September 2022 through D Ncube. The first respondent claimed the applicants never possessed the scrap metal and that he sold it to the third respondent. The second respondent claimed he had only paid US$1,800.00 for permission to strip the machine, not to purchase it, and that he had resiled from the deal. The third respondent claimed he purchased the scrap metal from the first respondent and was unaware of any other claimants.

• Whether the applicants were in peaceful and undisturbed possession of the scrap metal
• Whether the respondents deprived the applicants of possession forcibly or wrongfully against their consent
• Whether the requirements for a spoliation order were satisfied
• Whether costs on a legal practitioner and client scale were justified against the second respondent

The application was granted. Respondents were ordered to restore applicants' possession of the 14 tonnes of scrap metal removed from Costas Business Centre Zvishavane on 1 September 2022. The second respondent was ordered to bear costs of suit on a legal practitioner and client scale. There was no order of costs against the first and third respondents.

To obtain a spoliation order, an applicant must establish two requirements: (1) that the applicant was in peaceful and undisturbed possession of the property, and (2) that the respondent deprived the applicant of possession forcibly or wrongfully against their consent. The onus is on the applicant to show lack of consent, which may be express or implied. Where these elements are established, the court will grant a spoliation order requiring restoration of possession, regardless of questions of ownership or the rights of third parties who subsequently acquired the property.

The court observed that the third respondent was a victim of the other respondents' deeds, suggesting some sympathy for his position as an innocent purchaser. However, the court noted this does not rule out the fact that applicants were despoiled and entitled to relief. The court also commented on the highly reprehensible conduct of the second respondent, who was present during both transactions and allowed the unlawful dispossession to occur while pretending to be merely a silent observer, which justified costs on an elevated scale.

This case reinforces the established principles of spoliation law in Zimbabwean jurisprudence, particularly the application of the Botha v Barrett test. It demonstrates that the spoliation remedy is concerned with protecting possession rather than ownership, and that wrongful dispossession will be remedied regardless of underlying ownership disputes. The case also illustrates how courts will scrutinize evidence for collusion among respondents and award enhanced costs where a party's conduct is found to be highly reprehensible. The judgment confirms that third parties who innocently acquire possession from someone who wrongfully dispossessed the true possessor may still be required to restore possession, though they may not be liable for costs.