Rita Marque Mbatha v Vincent Ncube and Messenger of Court, Harare

The appellant rented residential property from the first respondent under a five-year lease from 2011 to 2016. Whether the lease was renewed was disputed. In 2016, the first respondent obtained an eviction order against the appellant in the Magistrates' Court (MC 39520/16) for rental arrears. The appellant's application for rescission was dismissed. The appellant filed multiple applications for review and stay of execution in the High Court and Supreme Court. In 2018, when faced with eviction, the appellant filed spoliation proceedings (HC 7310/18) which resulted in an order restoring her peaceful possession of the property. She then withdrew her review application. In October 2021, the first respondent instructed the second respondent (Messenger of Court) to execute the eviction order from 2016. The appellant filed an urgent chamber application for an interdict to prevent the eviction, arguing the spoliation order had set aside the Magistrates' Court eviction order. The High Court dismissed her application, finding the eviction order remained extant. The appellant appealed but was in default at the appeal hearing.

• Whether the Magistrates' Court eviction order (MC 39520/16) remained extant following the High Court's spoliation order in HC 7310/18
• Whether an interdict could be granted against lawful conduct done in terms of a valid court order
• Whether spoliation proceedings can definitively resolve substantive rights to property
• The proper scope and effect of spoliation orders

The appeal was dismissed with costs on an ordinary scale.

An extant court order can only be competently set aside on appeal or through review proceedings. A spoliation order merely restores peaceful and undisturbed possession pending determination of substantive rights; it does not determine the legality of possession or set aside other court orders determining substantive rights. An interdict cannot be granted against lawful conduct, and the execution of a valid, extant court order constitutes lawful conduct. To obtain an interdict, an applicant must establish a prima facie right worthy of protection - peaceful possession alone is insufficient; that requirement pertains to spoliation proceedings.

The Court noted with some sympathy that the appellant, as a self-actor (litigant in person), may have failed to appreciate the import and limited effect of spoliation proceedings and how they differed from other remedies. The Court also observed the protracted nature of the litigation between the parties which had traversed the entire court hierarchy over several years, though it declined to award costs on a higher scale despite the respondents' requests, taking into account the appellant's status as a self-actor.

This case clarifies important principles in Zimbabwean law regarding: (1) the limited scope and effect of spoliation orders - they restore possession but do not determine substantive rights or set aside other court orders; (2) the principle that extant court orders can only be set aside through proper appeal or review proceedings; (3) the prohibition on interdicting lawful conduct, including the execution of valid court orders; and (4) the distinction between remedies of spoliation and interdict. The case provides valuable guidance on proper procedural remedies available to litigants and emphasizes that self-help and procedural shortcuts cannot substitute for proper legal process.