Pickglow Trading (Private) Limited v Country Petrolium (Private) Limited t/a Glow Petrolium and Others

The applicant leased a Highway Service Station in Macheke to the first respondent on 1 February 2012 for 12 months, paying the full rental of US$7,200.00 upfront. Apart from the service station covered by the written lease agreement, the applicant also occupied shops on the same premises (a takeaway shop, tuck-shop and bottle store). The applicant alleged there was a subsequent verbal agreement around 10 February 2012 to lease the shops on condition the applicant paid outstanding electricity bills of US$5,000.00. The respondents denied this verbal agreement. On 6 April 2012, the second, third and fourth respondents allegedly evicted the applicant from the shops without a court order. The respondents claimed the premises were now occupied by one Pauline Bere under a lawful lease agreement concluded on 6 April 2012.

• Whether the applicant was in lawful, peaceful and undisturbed occupation of the shops prior to the alleged spoliation
• Whether a spoliatory remedy is available to a person not in lawful occupation
• Whether the application could succeed without joining Pauline Bere (the new occupier) as a party to the proceedings
• The scope and extent of the written lease agreement versus the alleged verbal agreement

The application was dismissed with costs.

A person seeking spoliation relief must establish prior lawful, peaceful and undisturbed occupation of the property in question. Where a third party (new occupier) has taken occupation of disputed premises, that party must be joined to the proceedings and given an opportunity to be heard before any order affecting their rights can be made. Failure to join such a necessary party is fatal to the application. The principle of audi alteram partem requires that all persons whose rights may be affected by a court order must be given an opportunity to be heard.

The court made obiter observations criticizing the earlier decision in Bok Estates (Pvt) Ltd v Masara and Ors 2009 (2) ZLR 466, where it was held that spoliation remedies are available even to thieves and unlawful occupiers. BHUNU J observed that this judgment ignored the fact that allowing unlawful occupiers to remain in occupation perpetuates illegality at the expense of lawful occupiers. The court noted with approval that this approach had been overturned by the Supreme Court in Commercial Farmers Union and 9 Ors v The Minister of Lands and Rural Resettlement and 6 Ors SC 31/10.

This case illustrates important principles in Zimbabwean law regarding spoliation remedies and procedural fairness. It confirms that spoliation remedies require proof of prior lawful, peaceful and undisturbed occupation. More significantly, it reinforces the audi alteram partem (hear the other side) principle by holding that a new occupier of disputed property must be joined as a party to proceedings before any order affecting their rights can be made. The judgment also confirms the Supreme Court's position in Commercial Farmers Union that courts should not perpetuate illegality by granting spoliatory relief to unlawful occupiers.