Saddam Mustafa Rashidi v Trondel Investments (Private) Limited and Others

The applicant, Mr. Saddam Mustafa Rashidi, alleged he was in peaceful and undisturbed possession of a residential cabin located at Stand 27 Chinemaringa Close, Shawasha Hills, Harare from 27 March 2025 until 8 October 2025. He resided there continuously, kept his personal belongings, and treated it as his home. On 8 October 2025, the first respondent (Trondel Investments (Pvt) Ltd), the registered owner of the property, through its agents including the second respondent (a security officer, Mr. Now Gumbo) and third respondent (Gungwe Security (Pvt) Ltd), barred him from entering the premises without a court order. The respondents denied the applicant was ever in lawful possession, claiming he was an unknown intruder and trespasser. An inspection in loco was conducted, which revealed the cabin contained a bed with bedding, a gas stove, food items, and other personal effects consistent with habitation. The applicant unlocked the cabin with his own key during the inspection. The respondents admitted they were unaware of when and how these items had been placed in the cabin.

• Whether the applicant was in peaceful and undisturbed possession of the cabin prior to 8 October 2025
• Whether the respondents unlawfully dispossessed the applicant of possession without his consent or due process of law
• Whether the mandament van spolie (spoliation order) should be granted
• Whether the lawfulness of the applicant's possession is relevant in spoliation proceedings
• Whether ignorance of the owner regarding occupation negates the existence of possession

1. The respondents, jointly and severally, shall immediately restore to the applicant possession of the residential cabin at Stand No. 27 Chinemaringa Close, Shawasha Hills, Harare. 2. The respondents are interdicted from preventing or hindering the applicant's access to and use of the cabin, save by lawful court authority. Any impediments denying access shall be removed immediately. 3. Any personal effects removed by the respondents shall be returned to the applicant without delay. 4. The first, second and third respondents shall pay costs on the legal practitioner-and-client scale, jointly and severally.

The binding legal principles established are: (1) A spoliation order (mandament van spolie) requires proof of only two elements: peaceful and undisturbed possession, and unlawful deprivation of that possession without consent. (2) The lawfulness or causa of the applicant's possession is irrelevant in spoliation proceedings—the remedy protects actual possession, not the right to possession. (3) Possession may be clandestine or without the knowledge of the owner, and such secret possession is nonetheless protected. Factual control (corpus) with intent to possess (animus possidendi) suffices. (4) An owner's ignorance of occupation does not negate the existence of possession. (5) No person, including a property owner, may dispossess another without due process of law and a court order—self-help is prohibited. (6) The defences available in spoliation proceedings are limited to denying the facta probanda, impossibility of restoration, counter-spoliation, or unreasonable delay. Claims of superior right or entitlement are not justiciable in spoliation proceedings. (7) Spoliation orders are inherently urgent and must restore the status quo ante before any inquiry into the merits of underlying rights.

The court observed that granting the spoliation application decides nothing about the ultimate rights of the parties to the property—it is not a vindication of the applicant's entitlement to remain on the land, but merely a temporary restoration of the prior factual position pending proper proceedings. The court noted that the first respondent remains entitled to bring eviction proceedings or pursue criminal trespass charges through due process, but may not unilaterally eject an occupant. The court commented that while the respondents' resort to self-help may have stemmed from a mistaken belief in the correctness of their actions, a stern message still needed to be sent that self-help will not be countenanced, justifying the award of costs on the higher scale. The court also noted that allowing self-help would invite chaos and undermine the rule of law, potentially degenerating into violence.

This case reaffirms the fundamental principle of Zimbabwean law that self-help is prohibited and the mandament van spolie must be granted to restore peaceful possession regardless of the lawfulness of that possession. It emphasizes that spoliation proceedings are concerned solely with factual possession, not legal entitlement, and that even property owners must follow due process to evict occupants. The judgment underscores that clandestine or secret possession is still protected possession, and that an owner's ignorance of occupation does not negate its existence. The case also demonstrates the court's willingness to conduct inspections in loco to resolve factual disputes in urgent spoliation matters, and to impose punitive costs to deter unlawful self-help.