Shaillon Chiswa v Maxess Marketing (Pvt) Ltd and Others

In October 2018, the applicant purchased stand 627 Helensvale Township from the first respondent (represented by the second and third respondents). The applicant took vacant possession in December 2018 after paying 50% of the purchase price. A dispute arose when the applicant allegedly failed to pay the full purchase price within the agreed timeframes. The applicant tendered the balance and demanded transfer, instituting proceedings for specific performance (HC 9336/19) and a caveat to prevent transfer (HC 9851/19). The respondents instituted eviction proceedings in the Magistrates' Court (MC 11594/19). Despite pending court proceedings, the second respondent declared his intention to physically remove the applicant from the property. The respondents locked the applicant out of her home and, through threats of violence, prevented her from entering. The applicant brought this urgent application to interdict the respondents from evicting her or interfering with her peaceful possession pending the outcome of the other matters before the courts.

• Whether an interdict is available where the alleged harm has already occurred or is based on a past wrong
• Whether the court can amend a defective draft provisional order
• Whether the applicant established the requirements for an interim interdict pending resolution of other court proceedings
• Whether the conduct complained of constituted ongoing interference with peaceful possession or a completed past violation
• Whether damages rather than interdictory relief is the appropriate remedy

The court granted the provisional order as amended. The applicant was granted leave to amend the draft final order to read: "Pending the determination of case nos. MC 11594/19, HC 9851/19 & HC 9336/19, the respondents be interdicted from arbitrarily evicting the applicant from stand 627 Helensvale township, of subdivision 33, Helensvale, Harare or disturbing applicant's peaceful possession thereof." The interim relief interdicting the respondents from evicting, locking out or interfering with the applicant's peaceful possession was granted, and the sheriff was authorized to restore possession if necessary.

The binding principles established are: (1) Where a party continues to deny another access to property through physical barriers (locks) and ongoing threats, this constitutes ongoing interference with peaceful possession rather than a completed past violation, making an interdict the appropriate remedy. (2) Under Rule 240 of the High Court Rules 1971, the court has discretionary power to amend a draft provisional order (whether interim or final) where the founding affidavit properly articulates the relief sought but poor drafting has resulted in a defective draft order. (3) The final wording of any court order is the prerogative of the court as long as the order resolves the dispute(s) before the court, and the draft order submitted by an applicant remains merely a proposal.

The court observed that when drafting an application that leans on other matters already before the court, counsel should refer to those cases in the heading as reference cases, though failure to do so is not necessarily fatal. The court also noted with apparent disapproval the inconsistency between the respondents' consensual approach in the related case HC 394/20 (where they agreed to preserve the status quo) and their opposition to the present application, commenting that the spirit of that settlement was "not reconcilable with attempts by respondents to take possession and control of the property before the real dispute is resolved." The court expressed the view that self-help remedies should not be pursued where formal eviction proceedings are already pending before the courts.

This case is significant in Zimbabwean civil procedure for confirming the court's discretionary power under Rule 240 of the High Court Rules 1971 to amend defective draft orders where the founding affidavit properly articulates the relief sought. It also clarifies that interference with peaceful possession of property is an ongoing violation rather than a completed past wrong where locks remain in place and threats continue, making interdictory relief (rather than damages) the appropriate remedy. The case demonstrates the court's willingness to preserve the status quo pending resolution of substantive disputes and to prevent self-help remedies where formal court proceedings are already underway.