Patrick Muregwi v Northside Community Church and Messenger of Court

The applicant alleged that on 31 January 2020, he was unlawfully evicted from stand number 985 Hatcliffe, Harare. The eviction was allegedly carried out by the second respondent (Messenger of Court) at the instance of the first respondent (Northside Community Church). The applicant contended that the eviction was based on a court order obtained by the first respondent against an entity called Premier College (Pvt) Ltd and those claiming occupation through it, and that this order had nothing to do with him. The first respondent disputed that the applicant was evicted on 31 January 2020, contending that the applicant had long vacated the property and that Premier College had taken occupation of the property. Evidence from the first respondent's witnesses indicated the applicant had moved out years ago and was subletting the property. The applicant filed three affidavits with photographs purporting to show his household goods, but the photographs primarily showed plastic chairs, desks, and vehicles, which corroborated the first respondent's version that the property was being rented to a college. Additionally, the applicant had filed a similar application in the Magistrate Court on the same day seeking substantially the same relief.

• Whether the applicant was in peaceful and undisturbed possession of the property on 31 January 2020
• Whether the applicant had discharged the onus to prove an act of spoliation
• Whether eviction by a messenger of court acting on a court order can ground an application for spoliation
• Whether it is competent to seek final relief disguised as interim relief in a spoliation application
• Whether filing identical applications in two different courts constitutes an abuse of process

The application was dismissed with costs of suit.

To succeed in a spoliation application, an applicant must prove on a balance of probabilities (not merely prima facie) two essential elements: (1) that the applicant was in peaceful and undisturbed possession of the property; and (2) that the respondent deprived him of possession forcibly or wrongfully without his consent. Eviction by a messenger of court acting pursuant to a court order cannot constitute spoliation because the messenger of court cannot be said to have 'taken the law into his own hands', which is the fundamental principle underlying the remedy of spoliation. Filing substantially identical applications in two different courts simultaneously constitutes an abuse of process.

The court observed that interim relief in spoliation applications should be truly temporary and provisional, safeguarding the status quo until the return day. It is incompetent to seek a final order under the guise of interim relief. The court also noted that it is inappropriate to seek an order for costs de bonis propriis against legal practitioners on an interim basis, as such issues should be determined on the return day. The court commented that if reinstatement were granted as interim relief, there would be nothing left to determine on the return day, effectively closing the case on prima facie proof, which would be improper.

This case is significant in Zimbabwean (and by extension South African) jurisprudence as it clarifies several important principles regarding spoliation applications: (1) it reinforces the requirement that an applicant must prove peaceful and undisturbed possession on a balance of probabilities, not merely prima facie; (2) it establishes that eviction by a messenger of court acting on a court order cannot constitute spoliation, even if the order may have been misdirected, because the messenger cannot be said to have 'taken the law into his own hands'; (3) it confirms that filing identical applications in different courts constitutes an abuse of process; and (4) it clarifies that interim relief in spoliation applications must be truly interim and cannot seek final orders. The judgment serves as an important reminder of the strict requirements for spoliation orders and the proper structure of urgent applications.