Varlerie Paidamoyo Madanire v Maria Mafunga

The applicant purchased Plot 14 Shortlands Farm, Marondera in November 2016 and immediately took occupation. In May 2021, the applicant erected a wooden cabin, built a blair toilet, dug a well and fenced two sides of the property. A caretaker and other workers occupied the property while the applicant worked in Harare. On 25 September 2021, the applicant visited the property and discovered that a cabin had been erected 20-30 metres from his cabin. The occupants advised they were there at the instance of the respondent. The respondent confirmed her occupation and stated she had purchased the property (Lot 13 of Shortlands, Marondera). The respondent claimed she occupied her piece of land in January 2019 and that there was a boundary dispute between Lot 13 and Lot 14. The respondent's occupants were accessing and using the applicant's toilet and well for their daily needs.

• Whether the matter was urgent
• Whether the applicant was in peaceful and undisturbed possession of the property
• Whether the applicant was unlawfully deprived of possession
• Whether lawful possession is required for a spoliation order
• Whether the respondent's actions constituted spoliation

The court granted the order as follows: (1) Respondent and all those claiming occupation through her are ordered to restore peaceful and undisturbed occupation of Plot 14 Shortlands Farm, Marondera to the applicant within 24 hours of service of the order; (2) Respondent is barred from accessing, using or destroying applicant's wooden cabin, water well and latrine at Plot 14 Shortlands Farm, Marondera; (3) Respondent is ordered to refrain from coming within 50 metres of any part of Plot 14 of Shortlands Farm, Marondera.

The binding legal principles established are: (1) In a spoliation application, the court is not concerned with ownership or lawful entitlement to possession, but only with who was in actual possession and whether they were unlawfully dispossessed; (2) To succeed in a spoliation application, the applicant must establish on a balance of probabilities that they were in peaceful, undisturbed possession and were unlawfully deprived of such possession; (3) Possession is a compound of physical control (detentio) and mental attitude toward the thing, both being questions of fact; (4) A spoliation order protects even unlawful possession until the parties' rights have been properly determined; (5) Urgency in boundary dispute cases depends on who was on the property first; (6) Dispossession by erecting structures and using another's facilities without consent constitutes spoliation, even where the dispossessor believes they have a right to the property; (7) What is not specifically denied in pleadings is admitted.

The court observed that no reasonable person in actual occupation since 2019 would have allowed another party to make substantial developments (cabin, toilet, well, fencing) without raising any complaint. The court also commented that even if the applicant had encroached into Lot 13, the respondent should have followed due process to remove the applicant rather than taking the law into her own hands. The court noted that raising issues about boundaries when one's own property had not yet been pegged defies logic. The judgment also referenced the authority from Silberberg & Schoeman's Law of Property (2nd Edition) as cited in Banga v Zawe SC 54/14 regarding the definition of possession.

This case clarifies important principles in Zimbabwean (and by extension South African) spoliation law. It confirms that a spoliation order protects possession regardless of whether that possession is lawful, and that the court should not delve into questions of ownership or lawful entitlement when determining spoliation applications. The case demonstrates that physical control and first occupation are critical factors in establishing possession, and that a party cannot take the law into their own hands by dispossessing another even where they believe they have a better right to the property. The judgment reinforces that the purpose of spoliation relief is to maintain the status quo ante until parties' rights are properly determined through appropriate legal processes.