Wistmer Investments (Pvt) Limited v Nyashanu Mining Syndicate and Others

The applicant entered into a joint venture mining agreement with the first respondent (a mining consortium) on 4 September 2020 in respect of Mining Location Bang 136 and Bang 137 (registered numbers 46310 and 46311). Under the agreement, the applicant would contribute equipment and finance. The parties operated jointly from September 2020 until 22 February 2022. On 22 February 2022, the second and third respondents (members of the first respondent syndicate) visited the mine with a group described as hooligans and forcibly chased away the applicant's employees and security personnel. They sealed off the mining site and denied the applicant access. The respondents claimed that at a syndicate meeting on 10 February, members voted against ratifying the contract signed by the third respondent and resolved that the applicant should remove its equipment and personnel. The respondents contended the applicant left voluntarily, while the applicant alleged forcible dispossession.

• Whether the application was urgent
• Whether the applicant was in peaceful and undisturbed possession of the mining site
• Whether the applicant was unlawfully despoiled of possession
• Whether the validity of the underlying joint venture agreement was relevant to the spoliation application

The court granted the following order: (1) The respondents were ordered to allow the applicant and its employees undisturbed access to Mining Location Bang 136 and Bang 137 (registered numbers 46310 and 46311) upon service of the order; (2) The respondents were ordered not to interfere with the joint mining operations by the applicant at the mining locations; (3) The respondents were ordered to pay costs of suit.

In spoliation proceedings, the applicant must prove: (1) that it was in peaceful and undisturbed possession of the property; and (2) that it was unlawfully deprived of such possession. Issues of ownership and the validity of underlying agreements are not relevant to spoliation proceedings. The purpose of a spoliation order is to restore the status quo ante. Even if a person's right to possession is disputed or invalid, they may not be dispossessed without due process of law - self-help is prohibited. The court will not enquire into the merits of competing claims to ownership or entitlement; it will simply restore possession to the party who was despoiled, leaving questions of rightful ownership to be determined in separate proceedings with proper legal process.

The court observed that the issue of whether the joint venture agreement (Annexure B) was null and void was "an issue for another day, another fora." The court also made the observation (citing Oliver Masomera) that "at law even a thief may be despoiled and is protected by the law once the thief has been despoiled without due process," emphasizing the fundamental nature of the protection against unlawful dispossession regardless of the merits of one's claim to the property.

This case reinforces fundamental principles of spoliation law in Zimbabwe (which shares common law heritage with South Africa). It emphasizes that spoliation remedies are designed to prevent self-help and maintain public order by restoring possession to those unlawfully dispossessed, regardless of the underlying rights to the property. The case illustrates that questions of ownership, contractual validity, or entitlement are irrelevant to spoliation proceedings - the sole question is whether there was peaceful possession followed by unlawful dispossession. It also demonstrates the courts' willingness to grant urgent relief in spoliation matters where parties have been forcibly ejected from property.