Paul Kabowa and Others v Kapenta Fisheries (Private) Limited and Others

On 1 November 2012, the five applicants entered into written lease agreements with the first respondent (Kapenta Fisheries) to lease fishing boats for a period ending 31 December 2017. The monthly rental was 240 kgs of Kapenta fish per boat. The applicants took possession and paid rentals, though arrears accrued when fish became scarce. In July 2015, the respondents allegedly offered that if the applicants cleared arrear rentals within three months, they could own the boats, with an extension of three months at 4% interest if needed. The applicants paid for fishing permits in anticipation of ownership. On 15 January 2016, the second, third and fourth respondents summoned the applicants and informed them that the fourth respondent (Brigadier Mahachi) had purchased the boats. The boats were collected from the lake and harbor, and army personnel were deployed to prevent the applicants from accessing them or retrieving personal belongings. The applicants filed an urgent spoliation application on 18 January 2016. The respondents claimed the written lease had been cancelled by mutual consent in December 2013 and replaced with verbal leases, the last of which ran until December 2015 and was cancelled due to non-payment of arrears, leading to the sale to the fourth respondent.

• Whether the applicants were in lawful possession of the boats at the time of dispossession
• Whether the written lease agreement of November 2012 had been validly cancelled and replaced by verbal lease agreements
• Whether the applicants were unlawfully despoiled of their possession of the boats
• Whether the remedy of mandament van spolie was available to the applicants
• Whether the matter was properly brought as an urgent application

The application was granted as prayed. The court ordered the restoration of possession of the boats to the applicants in accordance with the mandament van spolie.

The mandament van spolie is available to any person who lawfully possessed property and was unlawfully dispossessed. The law does not accept or condone self-help remedies. Where a person is in peaceful possession of property, regardless of whether that possession is based on a written or verbal agreement, they cannot be forcibly dispossessed without following lawful procedures. The status quo ante the spoliation must be restored. Resort to self-help, particularly involving the use of military personnel and intimidation to effect dispossession, is unlawful and reminiscent of the law of the jungle, which the law rejects.

The court made observations about the weight to be attached to affidavits from persons who are closely associated with one of the parties. Specifically, the court noted that Dorreys Kidwell, who was described in the written lease agreements as the respondents' representative responsible for collecting rentals, could not be regarded as an independent witness, and little weight would be attached to his affidavit supporting the respondents' version. The court also observed that it was difficult to countenance the suggestion that lessors who allegedly cancelled a lease due to non-payment would allow the lessees to continue possessing and using the property for fourteen to fifteen days thereafter. The court commented that the fourth respondent was not an innocent purchaser given his use of military status and personnel to effect the dispossession.

This case reinforces the fundamental principle in South African (and Zimbabwean) property law that the mandament van spolie protects peaceful possession regardless of underlying rights of ownership or contractual disputes. It emphasizes that self-help remedies, particularly those involving intimidation through military or state power, are not tolerated by the courts. The case demonstrates that the spoliation remedy is available to anyone in lawful possession who is unlawfully dispossessed, and that the spoliator must restore possession before any questions of right can be determined. It also illustrates the court's approach to evaluating the credibility of witnesses who have a close relationship with the parties, and the importance of factual consistency in opposing affidavits.