Zaleekhah Islam v Yusuf Abdul Karim Jooma

The applicant was married to the late Faruk Abdul Karim Jooma, who was the respondent's younger brother. Before his death on 1 December 2020, the applicant and her husband lived together at 28 Demera Road, Rotchdale, Nyanga, and worked together in a general dealer store and hardware shop at Nyanga. They had several trucks for domestic and business use. The respondent, who had been living in the United Kingdom for approximately 25 years, returned to Zimbabwe following his brother's death. The applicant alleged that after the burial, the respondent took the shop keys from her bedroom, and on 15 December 2020, informed her she was no longer welcome at either the shop or the house. She was forcibly evicted from 28 Demera Road, her personal property was removed, and she was denied access to the business premises. The respondent contended that the properties were owned by two companies (Kashmir Trading (Pvt) Ltd and Kashmir Investments (Pvt) Ltd) in which he and the deceased were directors, and that after his brother's death, he became the sole director. After the High Court granted a spoliation order on 3 February 2021, the respondent obtained two eviction orders from the Nyanga Magistrates Court (CIV 9/21) and Harare Magistrates Court (Comm 117/21) that effectively undermined the High Court order.

• Whether the matter was urgent and warranted being heard as an urgent chamber application
• Whether the applicant had established the requirements for a spoliation order (peaceful and undisturbed possession and forcible dispossession without consent)
• Whether the Magistrates Courts had jurisdiction to grant eviction orders in respect of the properties in question
• Whether the High Court could regulate its own processes to protect the integrity and efficacy of its proceedings under section 176 of the Constitution
• Whether orders granted without jurisdiction by the Magistrates Court could be ignored or disregarded without formal setting aside

The court granted three orders: (1) On 3 February 2021, an interim spoliation order prohibiting the respondent from evicting the applicant from the properties and ordering the return of the vehicles, with authorization for the Sheriff to enforce the order with police assistance; (2) An interlocutory order subpoenaing the Magistrates Court records and various persons to appear before the court; (3) On 17 June 2021 (though the order states 16 June 2021), an order suspending the execution of the eviction orders issued by the Nyanga and Harare Magistrates Courts, and directing that if the applicant had been evicted pursuant to those orders, she be reinstated into occupation of the premises with the assistance of the Sheriff and police if necessary.

The binding legal principles established are: (1) Spoliation applications are by their very nature urgent because they seek to preserve law and order and prevent self-help in dispute resolution; (2) To succeed in a spoliation application, an applicant must prove peaceful or undisturbed possession and forcible or wrongful dispossession without consent - the lawfulness of the applicant's possession is irrelevant to the mandament van spolie; (3) The Magistrates Court, being a creature of statute with no inherent jurisdiction, must establish its jurisdiction before granting orders, particularly in ejectment matters where the value of occupation must be ascertained pursuant to section 11(b)(iii) of the Magistrates Court Act; (4) Orders granted by a court without jurisdiction are void ab initio, incurably bad, and of no legal effect; (5) Void orders may be disregarded without the necessity of a formal order setting them aside; (6) The High Court has the power under section 176 of the Constitution to regulate its own processes in the interest of justice, including issuing orders to protect the integrity and efficacy of proceedings before it; (7) Lower court orders that conflict with and undermine High Court orders in ongoing proceedings may be suspended or disregarded, particularly where those lower court orders were granted without jurisdiction.

The court made several non-binding observations: (1) The court noted that it dealt with the application on papers in accordance with Practice Directive 2 of 2021 during COVID-19 lockdown restrictions, implicitly affirming the validity of such procedures during emergency periods; (2) The court observed that the estate of the late Faruk Abdul Karim Jooma had been registered with the Master of the High Court and an executor appointed, though it did not ultimately join the estate as a party; (3) The court referred to the doctrine of "dirty hands" raised by the applicant's counsel in relation to the respondent's alleged defiance of the court's order, though this was not extensively analyzed; (4) The court's emphasis on the need for courts to function properly and the absurdity of allowing invalid lower court orders to impede the enforcement of High Court orders reflects broader concerns about the coherence and integrity of the judicial system; (5) The court's reliance on South African authorities (given that this is a Zimbabwean case) demonstrates the continued persuasive value of South African jurisprudence in Zimbabwean law, particularly in areas of common law remedies like spoliation.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It reaffirms the fundamental principles of spoliation remedies and their role in preserving law and order by discouraging self-help; (2) It clarifies that spoliation applications are inherently urgent by their nature; (3) It reinforces the principle that Magistrates Courts must establish jurisdiction before hearing matters, particularly in ejectment cases where the value of occupation must be ascertained; (4) It establishes that orders granted without jurisdiction are void ab initio and may be disregarded without formal setting aside; (5) It demonstrates the High Court's power under section 176 of the Constitution to regulate its own processes to protect the integrity and efficacy of its proceedings; (6) It addresses the problematic situation where lower court orders conflict with and undermine High Court orders, providing guidance on how such conflicts should be resolved. The case also provides important guidance on how courts should function during emergency periods such as COVID-19 lockdowns, affirming the validity of decisions made on papers without oral argument pursuant to Practice Directives.