Nobert Chikonhi and Others v Minister of Home Affairs and Cultural Heritage N.O and Others

The four applicants alleged they were in occupation and working possession of particular mining places at the Blue Tents mining area near Bindura. They claimed the respondents, acting through or with the assistance of state agents, deprived them of possession without a court order. The respondents denied the despoilment, contending the applicants were not in possession of the places in question or that they left of their own accord. Due to the contested factual question of who was in peaceful and undisturbed possession, the court directed a ground visit to resolve the narrow factual controversy without converting the urgent proceedings into a trial.

• Whether each applicant was in peaceful and undisturbed possession of the relevant mining place
• Whether each applicant was deprived of such possession forcibly or wrongfully, against his consent and without due process
• Whether any recognised defence to spoliation had been established
• Whether the interim relief sought by way of provisional order was competent and justified on the facts

The application succeeded in part. The court ordered: (a) The respondents to restore the Second, Third and Fourth applicants to peaceful and undisturbed possession of their respective mining places at the Blue Tents mining area; (b) The Sheriff to reinstate possession in the event of non-compliance; (c) An interdict preventing the respondents from interfering with the possession of the successful applicants save by court order; (d) Dismissal of the First applicant's application; and (e) The Third respondent to pay costs of suit.

In spoliation proceedings, an applicant must prove: (1) peaceful and undisturbed possession, and (2) deprivation forcibly or wrongfully without consent. Possession is a question of fact comprising physical control coupled with the requisite mental element. If possession at the material time is not proved, the spoliation enquiry ends. Where the elements are established, the court restores possession summarily without enquiring into the lawfulness of the applicant's possession or substantive mining rights. The recognised defences are limited to: (a) absence of possession, (b) absence of unlawful deprivation, (c) impossibility of restoration, and (d) counter-spoliation within lawful limits. The remedy must be confined to what was actually possessed and cannot extend beyond the proven scope of prior possession.

The court observed that spoliation proceedings are not an arena for deciding mining title or the comparative strength of competing claims, describing those as "matters for another day". The court noted that removal of the spoliator from the property does not convert spoliation proceedings into eviction proceedings, as the removal is merely an incident of restoring the status quo ante. The court emphasized the need for courts to be astute not to grant relief that is incompetent, extends beyond the proven scope of prior possession, or effectively awards possession of areas never possessed. The judgment also demonstrated the utility of directing ground visits in urgent spoliation matters where possession and identification of specific places are contested, as a means of narrowing disputes without converting urgent proceedings into trials.

This case demonstrates the practical application of the mandament van spolie in the context of artisanal mining disputes in Zimbabwe. It illustrates the court's willingness to conduct ground visits to resolve factual disputes in urgent spoliation matters without converting the proceedings into a trial. The judgment reinforces that spoliation proceedings are possessory remedies that do not determine substantive rights, mining title, or legality of operations, but rather enforce the principle that self-help is impermissible and the status quo ante must be restored pending determination of rights in appropriate proceedings. It also clarifies that the remedy must be confined strictly to what was actually possessed and proved.