Mukuvisi Tashinga Housing Co-Operative (Represented by Catherine Kudambo) v Danny Musukuma and Others

The applicant, a housing co-operative, illegally invaded land belonging to the fourth respondent (Msasa Park (Private) Limited) in Msasa Park, Harare. The applicant parcelled out the land to land seekers and attempted to negotiate a purchase with the fourth respondent through legal correspondence. Negotiations failed to reach agreement on material terms including price ($25 per square metre demanded), survey, deposit, and approved plan. A deadline of 30 April 2015 passed without agreement. The fourth respondent had previously obtained an eviction order against the applicant on 25 June 2013 in HC 10561/13. On 13 May 2015, the first, second and third respondents allegedly invaded the applicant's offices, changed locks, barred the applicant from the premises, and began parcelling out stands to their sympathisers. The applicant brought an urgent application for spoliation relief. The applicant had previously approached the court in HC 4050/15 seeking the same relief against the first three respondents, which Hungwe J refused to deal with as urgent on 6 May 2015. The applicant failed to disclose this prior application.

• Whether the applicant had established a prima facie right deserving of protection despite illegally occupying land
• Whether spoliation relief should be granted to restore possession where the applicant was subject to an existing eviction order
• Whether the applicant's occupation and subdivision of land without a permit violated section 39(1) of the Regional Town and Country Planning Act
• Whether the court should entertain an urgent application where a previous identical application had been refused urgency and the applicant failed to disclose this material fact
• Whether lawfulness of possession is relevant in spoliation proceedings

The application was dismissed with costs.

The binding legal principles established are: (1) A court will not grant spoliation relief to restore possession where doing so would conflict with an existing court order directing the applicant to vacate the property. (2) An applicant who fails to disclose material facts in an urgent application, particularly prior unsuccessful applications seeking identical relief, violates the duty of utmost good faith and such application will be dismissed. (3) While lawfulness of possession is ordinarily not a prerequisite for spoliation relief, the principle cannot be extended to assist a party who has been ordered by a court to vacate land and seeks to return in violation of that order. (4) Subdivision and parcelling of land without a permit in terms of section 39(1) of the Regional Town and Country Planning Act is unlawful and creates no enforceable rights.

The court made strong obiter observations about the culture of wanting to "reap where they did not sow" in Zimbabwean society, citing with approval Zhou J's remarks in Southmark Trading (Pvt) Ltd v Karoi Properties (Pvt) Ltd. Mathonsi J stated: "The applicant in this matter, especially with the benefit of legal counsel, should know that it is standing on sinking sand, it having no legal right that it can possibly enforce at law." The court observed that the applicant "has now been favoured with a taste of its own medicine" by having its offices invaded in similar fashion to how it invaded the fourth respondent's land. While the court noted "I cannot condone self-help by the respondents," it nevertheless refused to grant relief that would conflict with existing court orders. The court emphasized the purpose of the mandament van spolie as being "to preserve law and order and to discourage persons from taking the law into their own hands."

This case reinforces important principles in Zimbabwean property and procedural law: (1) the strict prohibition against illegal land occupation and subdivision without proper permits under the Regional Town and Country Planning Act; (2) the limits of spoliation relief where granting such relief would conflict with existing court orders; (3) the duty of utmost good faith in urgent applications, requiring disclosure of all material facts including prior unsuccessful applications; (4) that courts will not assist parties attempting to legitimize illegal conduct or 'reap where they did not sow'. The judgment serves as a warning against land invasions and attempts to use court processes to validate unlawful occupation.