Techshed Investments (Pvt) Ltd v Musa Mpofu and Others

The applicant, Techshed Investments (Pvt) Ltd, entered into a sale agreement with Emandleni Syndicate for Happy Valley Mine C (registration number 37375), of which the 1st respondent was a member. The mine was registered in the applicant's name, though money was still owed to the syndicate. The applicant claimed it took possession of the mine in February 2020. The applicant alleged that on 21 January 2022 (though there were conflicting dates of 19 and 21 January in various papers), the 1st respondent, his assignees and agents forcefully and unlawfully evicted the applicant's representatives and workforce from the mine. The 1st respondent denied involvement, stating that a company called Lucky Heather (Pvt) Ltd entered the mine on 6 January 2022, not at his instruction. The founding affidavit was deposed to by Petros Muzamba, who was described as the mine manager but was actually a storeman. During proceedings, Muzamba deposed to three conflicting affidavits - the founding affidavit, a supporting affidavit in the notice of opposition (obtained by the 1st respondent's counsel after a meeting with Muzamba), and an answering affidavit. The court heard oral evidence from Muzamba to clarify the circumstances.

• Whether there was an application before court given the conflicting affidavits from the same deponent
• Whether the matter was urgent
• Whether the deponent had authority to act for the applicant
• Whether there was a non-joinder of necessary parties
• Whether the conduct of the 1st respondent's counsel in meeting and obtaining an affidavit from the applicant's witness was unethical and whether such affidavit should be admitted
• Whether the applicant established the requirements for a mandamus van spolie remedy
• Whether the applicant proved its case on a balance of probabilities

The application was dismissed with no order as to costs.

A legal practitioner acting for a client in contentious litigation must not communicate directly with a witness of the opposing party, particularly not in circumstances designed to obtain evidence favourable to their client. Such conduct is unethical and evidence obtained through such means is inadmissible. In applications for mandamus van spolie seeking final relief, the applicant bears the onus of proving the case on a balance of probabilities and must establish: (1) possession at the time of dispossession, and (2) wrongful deprivation without consent. The applicant's case stands or falls on the founding affidavit, which must provide a detailed and internally consistent factual basis, especially where the application is opposed and seeks final relief. Material inconsistencies and lack of detail in the founding affidavit that are not adequately explained will be fatal to the application.

The court observed that the mandament van spolie is an extraordinary and robust remedy that is not concerned with underlying rights to claim possession but only seeks to restore the status quo ante, based on the principle that the rule of law does not countenance resort to self-help. The court noted that Rule 58(12) of the High Court Rules, 2021 permits the court to require any person to give oral evidence if it will be in the interests of justice. The court also commented that Rule 32(11) provides that no cause shall be defeated by reason of misjoinder or non-joinder of parties. Regarding urgency, the court observed that a matter is urgent if, when the need to act arises, the matter cannot wait - this is the simple test for urgency.

This case is significant for establishing important principles regarding legal ethics and professional conduct in Zimbabwe. It confirms that legal practitioners must not secretly communicate with or obtain affidavits from opposing parties' witnesses, as such conduct is unethical and brings the administration of justice into disrepute. Evidence obtained through such unethical means will be ruled inadmissible. The case also reinforces the principle that an applicant's case stands or falls on the founding affidavit, not the answering affidavit, and that in applications for final relief (especially mandamus van spolie), applicants must provide detailed factual bases with internal consistency to meet the balance of probabilities standard. The case demonstrates the court's willingness to exercise discretion on costs to sanction unethical conduct, even when the party engaging in such conduct ultimately succeeds on the merits.