Silence Sibindi (Represented by Job Bernard Sibindi) and Pwiseyi Nhamoinesu v The Messenger of Court, Gweru N.O.

The appellant occupied Plot No. 36 Lot 54 Umsungwe Block, sanctioned by a resettlement form issued in 2008, and had been in lawful peaceful and undisturbed occupation for 20 years. The first respondent owned Dunstan Mine (Plot No. 39 of Lot 54 Umsungwe Block) which was adjacent to and shared a boundary with the appellant's plot. The first respondent had been conducting mining activities for about 20 years, with mining pits about 200 meters from the boundary. On 9 September 2020, the first respondent allegedly violently and forcefully removed poles erected on the boundary between the mine and appellant's plot, encroached into appellant's plot by 30 meters, and started conducting mining activities there. The encroachment also covered a two-roomed house owned by the appellant. The first respondent admitted that his mine encroached into the appellant's plot, stating he had been allocated the mine in 1998 (before the formal farm allocation in 2008), but claimed he had not been using the encroached area and that the appellant had been using it. The first respondent objected when the appellant attempted to fence off the area. The trial court dismissed the appellant's application for a spoliation order and prohibitory interdict, relying heavily on section 179 of the Mines and Minerals Act.

• Whether the appellant established the requirements for a spoliation order
• Whether the trial court erred in relying on section 179 of the Mines and Minerals Act [Chapter 21:05] to dismiss the spoliation application
• Whether the first respondent unlawfully despoiled the appellant of possession of the disputed land
• Whether an application for spoliation and interdict could be properly combined

1. The appeal is upheld. 2. The order by the Trial Court is set aside and substituted with the following: (i) The first respondent is ordered to forthwith relinquish, surrender and restore all despoiled agricultural land at Plot No.36 of Lot 54 Umsungwe, Gweru to the appellant; (ii) The first respondent is ordered to forthwith return to the appellant all the fencing poles removed from the boundary; (iii) The first respondent is ordered to forthwith remove all mining equipment and mining gadgets from any and all portions of Plot No.36 of Lot 54 Umsungwe, Gweru.

In a spoliation application, the only issue to be determined is whether there has been spoliation - i.e., whether the applicant was in peaceful and undisturbed possession, was despoiled, and had possession taken without due process or consent. Questions of underlying rights to property, including statutory rights under the Mines and Minerals Act, are irrelevant to the spoliation inquiry and must be determined in separate proceedings. A court hearing a spoliation application misdirects itself if it relies on provisions dealing with property rights (such as section 179 of the Mines and Minerals Act) to resolve the dispute, as this conflates the issue of possession with the issue of rights. The spoliation order finally settles the issue of whether spoliation occurred, but does not determine the parties' respective rights to the property in question.

The Court observed that it is problematic to combine an application for an interdict with an application for spoliation, as the two remedies have different requirements. The Court also commented on the weakness of the first respondent's case, noting that the opposing affidavit failed to directly address key allegations (removal of poles and commencement of mining operations), and questioning the logic of how mining operations could commence without equipment. The Court further noted that if the allegations were untrue (poles not removed, no mining equipment present), there would be no harm in granting the order as prayed for, given the failure to refute the allegations in the opposing papers.

This case is significant in Zimbabwean law as it clarifies the proper approach to spoliation applications and emphasizes that spoliation proceedings are concerned solely with the fact of unlawful dispossession, not with competing rights to property. The case demonstrates that statutory rights under the Mines and Minerals Act do not justify self-help or unlawful dispossession, and such rights must be determined in separate proceedings dealing with rights rather than possession. It reinforces the principle that a spoliation order is a final order on the issue of whether spoliation occurred, while leaving questions of underlying rights to be determined in subsequent proceedings. The judgment also illustrates the importance of directly addressing factual allegations in opposing papers and the consequences of failing to do so.