Phillip Chapfunga v Chido Jubilee Darell Makazhu

The Applicant, Phillip Chapfunga, claimed to be in peaceful and undisturbed possession of Subdivision 2 of Ealing Farm in Beatrice. On 29 July 2025, the Respondent, Chido Jubilee Darell Makazhu (co-executor and beneficiary of Estate Late Amos Bernard Muvengwa Midzi), evicted the Applicant with assistance from the Sheriff of Zimbabwe and police officers from Beatrice Police. The eviction was based on a court order under matter number HCH 3893/24 ordering eviction from Subdivision 1 of Ealing Farm (also known as Mnandi Farm). The Applicant contended he was not in occupation of Subdivision 1 and that his eviction was malicious. The Respondent claimed the Applicant was one of several illegal occupants who had unlawfully acquired 63 hectares from Partson Chipunza, a former casual farm worker who had illegally parcelled out Subdivision 1. The Applicant was served with a notice of eviction on 20 May 2025 and was evicted on 29 July 2025. The Applicant filed this urgent chamber application for a spoliation order on approximately 16 August 2025 (2 months and 18 days after receiving the notice of eviction).

• Whether the matter was genuinely urgent warranting determination on an urgent basis
• Whether the applicant's delay in approaching the court after receiving notice of eviction defeated urgency
• Whether non-joinder of certain parties (Ministry of Lands, Sheriff of Zimbabwe, Master of High Court, and owners of Subdivision 2) was fatal to the application
• Whether the applicant was entitled to a mandament van spolie (spoliation order)

1. The matter be and is hereby struck off the roll of urgent matters. 2. The applicant shall pay costs at the ordinary scale.

Urgency which stems from deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules for urgent applications. Where a party receives notice of eviction and has sufficient time to approach the court for a stay of execution but fails to do so, and only files an urgent application after eviction has been effected, such urgency is self-created and does not warrant treatment as an urgent matter. The need to act arises when notice is received, not when the threatened action is finally executed. Non-joinder of parties, pursuant to Rule 32(11) of the High Court Rules 2021, does not defeat a cause or matter, and the court may determine issues affecting the rights of parties who are before it.

While the court did not make substantive findings on the merits of the spoliation claim, the facts suggest complex underlying disputes about land rights involving the estate of a deceased person, allegations of illegal occupation and parcelling of farm land by a former casual worker, and competing claims to different subdivisions of the same farm. The Respondent's allegations that the Applicant unlawfully re-entered the fenced premises on the same day as eviction and faces an impending warrant of arrest for contempt of court suggest ongoing compliance issues. The court's focus on procedural matters (urgency and joinder) meant these substantive issues were not addressed.

This case reinforces the principle that urgency in litigation cannot be self-created through delay and inaction. It demonstrates that parties who receive advance notice of legal action (such as eviction notices) must act promptly to protect their interests. The judgment emphasizes that receiving notice of eviction triggers an immediate duty to seek appropriate relief (such as a stay of execution), and failure to do so undermines any subsequent claim of urgency. The case also confirms the application of Rule 32(11) of the High Court Rules 2021, which prevents applications from being defeated solely on grounds of non-joinder, allowing courts to determine issues affecting parties actually before them.