Rena Mazikana and 13 Others v Metzim Enterprises (Pvt) Ltd and The Messenger of Court Harare (NO)

The 14 applicants operated a flea market business selling clothes from individual tables at Shop No. 3, 107 Mbuya Nehanda Street, Harare, which belonged to the first respondent. They claimed to have entered into oral lease agreements with Lanas Clothing (trade name for Neosys (Pvt) Ltd) for occupation of tables at specified monthly rentals, commencing at various times from September 2013 to September 2018. The first respondent operated a "one lease holder" approach where a single leaseholder would sign a lease with the respondent, and others would be subtenants. When the lease with Lanas Clothing terminated, Memory Mazana became the new leaseholder from 15 April 2018. The applicants were notified to pay rent through Memory Mazana but refused, tore up the notice, and declined to recognize her as leaseholder. On 1 October 2018, the Messenger of Court evicted all applicants from Shop No. 3 pursuant to a writ of ejectment issued under Magistrates' Court case No. 17206/18 between Metzim Enterprises (Pvt) Ltd and Memory Mazana. The writ authorized ejection of "Memory Mazana and all persons occupying the said shop through her as the lease holder." There was also pending litigation (case No. 11353/18) in which Memory Mazana was seeking to evict the applicants.

• Whether the 14 urgent applications should be consolidated
• Whether the applicants were in peaceful and undisturbed possession of the property as required for a spoliation order
• Whether the eviction was unlawful deprivation of possession without due legal process
• Whether the applicants should have been specifically cited in the ejectment proceedings
• Whether the applicants fell within the category of 'all those claiming occupation through her' in the court order
• Whether the applicants had established the requirements for an interim interdict

The application was dismissed. The applicants were ordered to pay the first respondent's costs jointly and severally, with payment by one absolving the other.

For a spoliation order to succeed, the applicant must prove peaceful and undisturbed possession, which requires more than mere occupation - the possession must be calm, quiet, and free from disturbance. Ongoing litigation, disputes over payment of rent, refusal to recognize a new leaseholder, and contentious correspondence all negate peaceful and undisturbed possession. Where a leaseholder system is in place and a court order authorizes eviction of the leaseholder "and all persons occupying through her," subtenants or occupiers who claim not to be under the leaseholder but who have no other legal basis for occupation and who refused to recognize the leaseholder, are properly evicted under such order. Parties cannot create irregular situations to their advantage and then claim technicalities to avoid the legal consequences. Eviction pursuant to a valid court order and writ is lawful deprivation of possession, not unlawful self-help.

The court made important observations about the duties of court officials, noting that Messengers of Court, like the Master of the High Court, have a duty to file reports where there are compelling reasons justifying that they must do so, particularly when their professional conduct and integrity is put at stake. They cannot hide behind the principle of neutrality in such circumstances. The court also observed that even if no notice of eviction was served on the applicants (which was disputed), this would not nullify the eviction process - citing Order 26 Rule 4A(2) of the Rules of the Magistrates Court. The court noted that the applicants claimed to be "statutory tenants" but provided no elaboration as to how they acquired that status, suggesting this claim was unsubstantiated.

This case provides important guidance on the requirements for spoliation orders in Zimbabwe, particularly clarifying that: (1) peaceful and undisturbed possession requires more than mere occupation - it must be free from disputes and disturbances, which ongoing litigation and disputes negate; (2) parties cannot benefit from situations they themselves create, particularly where they refuse to recognize legitimate legal arrangements without justification; (3) eviction orders against a leaseholder properly extend to subtenants or those occupying through the leaseholder, even if not specifically named, where the order uses language such as 'all those claiming occupation through' the named party; (4) the court will not permit technical arguments to circumvent lawful eviction processes where parties had notice of disputes and chose not to regularize their position. The case also demonstrates the proper approach to consolidation of multiple applications based on the same facts and legal issues.