Redan Petroleum Private Limited and Spring and Autumn Private Limited v Shumba Holdings Private Limited and Others

The first applicant purchased shares in the second applicant (Spring and Autumn Oil (Pvt) Ltd), which owns and operates Redan Service Station in Karoi located on Spring Field Farm. The first respondent previously owned shares in the first applicant but sold them in May 2013. The third respondent owns the farm and is a director of the first respondent. On 3 April 2016, the applicants were allegedly dispossessed of the service station by the first and third respondents. The applicants obtained a provisional spoliation order on 16 April 2016 under HC 3737/16. The Sheriff enforced the order and restored possession to the applicants on 23 April 2016, locking the premises. However, on 28 April 2016, the Sheriff unlocked the premises, allegedly due to pressure "from above," allowing the second respondent (who had entered a lease agreement with the third respondent after the applicants' lease allegedly expired on 31 March 2016) to occupy the premises. The applicants sought restoration of possession and a contempt of court order.

• Whether the application for spoliation was urgent
• Whether the applicants were in peaceful and undisturbed possession of the premises at the time of the alleged spoliation
• Whether the applicants were unlawfully deprived of possession
• Whether the Sheriff's act of unlocking the premises without a court order amounted to spoliation
• Whether the second respondent's occupation of the premises after being aware of the court order amounted to spoliation
• Whether a contempt of court order should be granted against the first and third respondents

The court granted an interim interdict restraining the second and third respondents, their directors, agents, employees or third parties from disturbing the applicants' peaceful enjoyment and possession of Redan Karoi Service Station unless on the strength of a court order. The respondents were ordered to unlock and remove all blocks barring the applicants from accessing the service station. Leave was granted for service of the order. The contempt of court application was dismissed.

The binding legal principles established are: (1) A spoliation application is urgent by its very nature as it aims to preserve law and order and prevent self-help, but must still comply with ordinary rules governing urgent applications. (2) For spoliation to occur, it is not necessary that the spoliator himself acquire possession - any act whereby the possessor is unlawfully prevented from dealing with the thing in his possession constitutes spoliation. (3) Where A unlawfully dispossesses B of property and gives it to C, B is entitled to recover the property from both A and C. (4) Actions by officers of the court (such as Sheriffs) taken without a court order, even under political pressure, do not clothe unlawful dispossession with legality. Dispossession must be through due process of law. (5) A party who is aware of a court order restoring possession to another acts unlawfully and commits spoliation when it occupies the same premises without recourse to the legal process, constituting self-help.

The court noted that the Sheriff appeared to have acted under political pressure, with references to "fingers being burnt from the top" and "pressure from above." The court observed that what the second respondent ought to have done was to seek to be joined as a party in the original spoliation application (HC 3737/16) and await the return date for determination of its rights. The court also commented that ownership or lease rights have no place in spoliation matters - only possession at the time of alleged spoliation and deprivation of possession need to be resolved. The court noted that the applicants' manager had "no choice" but to participate in the handover-takeover on 5 April 2016, realizing they had already been dispossessed.

This case is significant in Zimbabwean property law and civil procedure as it clarifies several important principles: (1) spoliation applications are urgent by nature but must still meet procedural requirements for urgency; (2) it reinforces that officers of the court, including Sheriffs, cannot act outside court orders even under political pressure; (3) it establishes that where A dispossesses B and gives possession to C, B can recover from both A and C - the spoliator need not personally occupy the property; (4) it demonstrates that taking advantage of procedural confusion to occupy property when aware of a court order amounts to spoliation and self-help; and (5) it affirms the principle that dispossession must be through due process of law and cannot be legitimized by irregular actions of court officers.