Tebekwe Sands (Pvt) Ltd v Matobvu Investments (Pvt) Ltd and Others

The applicant, Tebekwe Sands (Pvt) Ltd, operated a mine known as Tebekwe Mine. On 11 March 2016, the first respondent (Matobvu Investments represented by Smelly Dube) allegedly led an operation together with armed police officers (the "black boots") to forcibly close the applicant's mining operations. According to the applicant, Smelly Dube physically took all the keys to the mine's facilities, including the stamp mill, barrel rooms, gold extraction, gold holding, and gold concentrate security rooms, and ordered cessation of all operations. The applicant alleged that the first respondent, with support from the second respondent (Officer Commanding Midlands Province) and third respondent (Provincial Mining Director), was now illegally operating the mine with police protection preventing the applicant's access. The respondents claimed the closure was justified based on violations of the Mines and Minerals Act and regulations, relying on a handwritten letter dated 11 March 2016 listing 12 breaches. The applicant denied receiving any written notice before the closure and alleged the documents were fabricated after the fact to justify the unlawful eviction.

• Whether the applicant was in peaceful and undisturbed possession of the mine prior to the alleged deprivation
• Whether the forced closure of the applicant's mine without a court order constituted unlawful spoliation
• Whether mining officials have powers under the Mines and Minerals Act to act as complainants, prosecutors and judges simultaneously by closing mining operations without due process
• Whether the handwritten letter allegedly justifying the closure was genuine and properly served on the applicant
• Whether the mandament van spolie remedy was available to the applicant in these circumstances

The court granted the following order: (1) The applicant and those claiming possession through it was declared to have peaceful and undisturbed possession of Tebekwe Mine; (2) The first and second respondents and those acting through them were ordered to restore the status quo ante prior to the spoliation such that the applicant is returned to its peaceful occupation and use of Tebekwe Mine; (3) The second respondent and/or those acting through her were ordered to withdraw the armed Zimbabwe Republic Police force at Tebekwe Mine; (4) The first respondent and/or those acting through her were ordered to return all the keys to Tebekwe Mine and allow the applicant to run its operations without interference. This order was subsequently confirmed on 12 May 2016.

The binding legal principles established in this judgment are: (1) A party seeking a spoliation remedy (mandament van spolie) must demonstrate that prior to the alleged deprivation, they were in peaceful and undisturbed possession of the property and did not consent to the deprivation; (2) Even where one of two joint possessors illegally takes exclusive possession, the mandament van spolie lies at the instance of the deprived possessor; (3) Officials under the Mines and Minerals Act do not have constitutional authority to act as complainants, prosecutors and judges simultaneously by closing mining operations without due process or a court order, as such powers would violate the constitutional principle of separation of powers; (4) Peaceful and undisturbed possession cannot be disrupted without a court order, regardless of alleged regulatory violations; (5) The spoliation remedy is available to restore possession even where the dispossessor claims to have an interest in the property.

The court made several non-binding observations: (1) The court expressed concern about the destruction of operating businesses at a time when Zimbabwe needs to maintain active economic entities; (2) The court commented on the respondents' failure to cover their tracks when fabricating evidence, noting that "when people are determined to mislead, they forget to cover their tracks"; (3) The court characterized the first respondent's claims of being similarly affected by the closure as "crocodile tears" and a "concocted story"; (4) The court described the respondents' actions as a conspiracy to destroy lawful operations; (5) The court expressed the view that powers allowing officials to act as complainants, prosecutors and judges simultaneously, if they existed, "would be a serious threat to the Constitution of this country which recognizes the separation of powers."

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It reinforces the protection of peaceful and undisturbed possession through the mandament van spolie remedy against unlawful eviction, even by state officials; (2) It confirms that administrative officials, including mining regulators, cannot bypass due process and court procedures to deprive parties of possession without a court order; (3) It affirms constitutional principles of separation of powers, holding that officials cannot act simultaneously as complainants, prosecutors and judges; (4) It demonstrates judicial willingness to scrutinize and reject fabricated evidence by state officials designed to retrospectively justify unlawful conduct; (5) It provides protection for lawful business operations against coordinated efforts by private parties and state officials to unlawfully seize control of commercial enterprises; (6) It confirms that the spoliation remedy applies even where one joint possessor unlawfully takes exclusive possession from another.