Tasip Mining Syndicate and Others v William Savanhu and Others

The first applicant held title to a mining location known as Penhill 39 and Penhill 40 within Warpely Farm in Shamva. The second and third applicants were partners in the first applicant. The first respondent was the land occupier of Plot 26 Warpely Farm since 2005. A dispute arose between the parties concerning boundaries. The applicants had previously sued unsuccessfully for eviction of the first respondent in case HC 355/19. On 4 November 2021, the first respondent erected steel barriers which the applicants alleged dispossessed them of their mining compressor, mining dumper trailer, and approximately 1.5 hectares of their mining location. The applicants averred they had explored the area since 2012. The first respondent contended that the applicants' pegging of the mining blocks in 2011 was done incorrectly and unlawfully, without his written consent as farm occupier as required by section 31 of the Mines and Minerals Act, and that the pegging did not respect the required 450-meter distance from his homestead. A previous judgment by Mafusire J in HH 522-20 held that the first respondent's homestead was inside the applicants' mining blocks and that the pegging was done incorrectly over land not open to pegging.

• Whether the matter was urgent and properly brought as an urgent chamber application
• Whether the applicants were in peaceful and undisturbed possession of the property at the time of alleged spoliation
• Whether the requirements for a mandament van spolie had been satisfied
• Whether the certificate of urgency was valid
• Whether the first respondent's erection of the steel fence constituted unlawful dispossession

The application was dismissed with costs.

An applicant for a mandament van spolie must establish peaceful and undisturbed possession at the time of dispossession. Where an applicant's original acquisition of possession was unlawful (such as through non-compliance with section 31 of the Mines and Minerals Act in pegging mining claims), and where there has been ongoing dispute since the respondent became aware of the encroachment, the applicant cannot be said to have been in peaceful and undisturbed possession. A party who arrives on land later in time and whose claim is based on unlawful pegging cannot succeed in a spoliation application against a party who was lawfully on the land earlier and whose occupation has been recognized as lawful.

The court made observations criticizing counsel's approach to points in limine, stating that the raising of certain issues as points in limine displayed a lack of appreciation of what points in limine are, and that some legal practitioners believe raising points in limine is a must and fashionable without proper understanding of their nature. The court also commented on the illogical nature of submitting that a certificate of urgency should be disregarded while still proceeding with the hearing, noting that certificates of urgency are based on facts provided by applicants and the legal practitioner's opinion is formulated on those facts. The court observed that by nature, an application for a mandament van spolie is urgent.

This case illustrates the application of spoliatory relief principles in the context of mining and land disputes in Zimbabwe. It reinforces the fundamental requirement that an applicant for a mandament van spolie must prove peaceful and undisturbed possession at the time of dispossession. The case also emphasizes the importance of compliance with statutory requirements under the Mines and Minerals Act, particularly section 31 requirements for pegging mining claims, including obtaining written consent from land occupiers and maintaining the prescribed distance from homesteads. The judgment demonstrates that prior unlawful conduct in acquiring possession (such as improper pegging) and ongoing disputes can defeat a claim for spoliatory relief. It also provides guidance on what constitutes proper points in limine and the nature of certificates of urgency under the High Court Rules.