The National Prosecuting Authority (Applying Without Notice Ex Parte)

A Bentley Continental G.T. motor vehicle (registration ACO 1759) was imported from the UK for $240,000 by Anderson Tagara allegedly on behalf of Ndabazinengi Shava. In mid-May 2013, Shava alleged that Uebert Angel of Spirit Embassy church conned him into donating the vehicle, promising manifold blessings within eight months, with the option to reclaim the vehicle if blessings did not materialize. After eight months without blessings and Angel allegedly ignoring and blocking his calls, Shava discovered the vehicle had been sold to Phibeon Busangabanye. Shava filed a fraud report with police. Police investigations revealed Tagara registered the vehicle in his name and sold it to Benjamin Mutamiri allegedly acting for Angel. The state preferred fraud charges against Angel and Tagara. On 24 December 2014, police attempted to seize the vehicle from Busangabanye, who obtained an urgent spoliation order (HC 11372/14) on 25 December 2014, confirmed as final on 28 January 2015, granting him possession and control. The National Prosecuting Authority then brought this urgent ex parte application seeking to have the vehicle produced as an exhibit for Tagara's trial scheduled for 17 February 2015.

• Whether the National Prosecuting Authority could obtain an order for production of the motor vehicle as an exhibit despite an existing court order granting possession to another party
• Whether the application should have been brought ex parte or whether Mr. Busangabanye should have been cited as a party given his substantial interest
• Whether the vehicle could be seized for use as an exhibit while respecting the existing spoliation order
• How to balance the needs of criminal prosecution with the rights conferred by a civil court order

The court ordered that: (a) Mr. Busangabanye continues to retain possession and control of the motor vehicle in terms of High Court Order HC11372/14; (b) Mr. Busangabanye is ordered to avail the motor vehicle (Bentley Continental G.T. registration number ACO 1759) to the regional court for purposes of proceedings commencing on 17 February 2015; (c) Mr. Busangabanye is ordered not to dispose of the motor vehicle until all proceedings relating to the car have been finalized; (d) no order as to costs.

Where a valid court order has conferred possession and control of property on a party pursuant to a mandament van spolie (spoliation order), that order remains valid and enforceable until varied or rescinded by the court. However, this does not prevent the state from requiring the possessor to produce the property as an exhibit in criminal proceedings. The possessor retains possession and control but must avail the property to the court when required for the administration of justice. A party with a substantial interest in property that is the subject of an application must be cited, even in urgent or ex parte matters. Where property is subject to disputed ownership and multiple proceedings, disposal of the property must be prohibited until all proceedings are finalized.

The court observed that it was "strange" that the applicant filed the application ex parte with full knowledge of the existing court order favoring Busangabanye. The court noted that the police's refusal to seize the vehicle in the face of the court order was "a correct interpretation of the law." The court commented that the vehicle's ownership "remains in the balance" between Shava, Angel, and Busangabanye, and that various criminal proceedings for forgery and fraud were pending. The court remarked positively on Busangabanye's counsel's statement that he was "not averse to the due administration of justice," suggesting approval of this cooperative approach to balancing civil rights with criminal justice requirements.

This case demonstrates the Zimbabwean High Court's approach to balancing competing interests between existing civil court orders (particularly spoliation orders) and the needs of criminal prosecution. It illustrates that spoliation orders granting possession are not absolute bars to the use of property as evidence in criminal proceedings, but that such use must be achieved while respecting the possessory rights conferred by valid court orders. The case also reinforces procedural requirements that parties with substantial interests must be cited in applications affecting their rights, even in urgent matters. It provides guidance on how courts manage property that is simultaneously the subject of multiple civil and criminal proceedings with disputed ownership.