Rosemary Nkomo v Meli Ndlovu

The applicant and respondent were in a personal relationship and also had a mining agreement. Both the relationship and mining agreement soured, and the respondent left the mining venture. The applicant alleged that the respondent despoiled her of certain property and sought an order for its return. The applicant relied on an alleged statement by one Musawenkosi, who purportedly confirmed that the property was delivered to him in settlement of a debt owed by the respondent. The respondent categorically denied taking possession of or dispossessing the applicant of any property, maintaining that no act of spoliation occurred.

• Whether the applicant proved she was in peaceful and undisturbed possession of the property
• Whether the applicant proved she was unlawfully deprived of possession
• Whether the applicant discharged the onus to prove spoliation occurred
• Whether hearsay evidence in the form of an alleged statement by Musawenkosi, without a confirmatory affidavit, was sufficient to establish dispossession

The application was dismissed with costs on the ordinary scale.

In a spoliation application, the applicant must prove: (1) peaceful and undisturbed possession of the property; and (2) unlawful deprivation of such possession. Where the act of dispossession is disputed, the applicant must adduce clear and adequate evidence of both prior possession and the act of dispossession itself. Bare assertions and hearsay evidence, particularly in the absence of confirmatory affidavits from alleged witnesses to the dispossession, are insufficient to discharge this onus. Where the respondent categorically denies taking the property and there is no admissible and persuasive evidence demonstrating that the respondent acted as alleged, the applicant fails to discharge the onus and the application must be dismissed.

The court noted that the mandament van spolie is an extraordinary and robust possessory remedy whose purpose is to restore possession ante omnia, without regard to the underlying merits of the dispute. The court cited with approval the South African Constitutional Court decision in Ngqukumba v Minister of Safety and Security and Others 2014 (7) BCLR 788 (CC) para 10, emphasizing that the essence of the remedy is restoration before all else, and its underlying philosophy is that no one should resort to self-help to obtain or regain possession. The main purpose is to preserve public order by restraining persons from taking the law into their own hands and inducing them to follow due process. The court also observed that while it retains a discretion to admit hearsay evidence, such evidence must be assessed in light of the totality of the record, and where foundational facts are disputed, it is impermissible to prefer untested hearsay over direct evidence denying the allegation.

This case reinforces the strict evidentiary requirements for spoliation applications in Zimbabwean law, particularly where the act of dispossession is disputed. It confirms that applicants must adduce clear and adequate evidence of both prior possession and the act of dispossession. The judgment emphasizes that bare assertions and untested hearsay evidence, especially in the absence of confirmatory affidavits from key witnesses, are insufficient to discharge the onus in spoliation proceedings. The case serves as a reminder that despite the mandament van spolie being an extraordinary and robust remedy, courts will not grant it without cogent proof of the essential elements.