Zimbabwe Parents of Handicapped Children Association v Grimms Nursery School and Others

The applicant leased property from the 2nd respondent and fell into arrears with rental payments. In April 2011, the 2nd respondent locked the premises, denying the applicant access. The applicant obtained an interim order under HC 1153/11 on 19 May 2011 for reinstatement and peaceful occupation. Due to continued rental payment problems, the 2nd respondent obtained an order under HC 1409/11 cancelling the lease, evicting the applicant, and ordering payment of US$13,850.00 in arrear rentals. On 23 February 2012, without a court order, the applicant and a Deputy Sheriff removed movable assets from the leased property. The 2nd respondent reported this to the police. The applicant then sought a spoliation order to prevent the police from removing the property.

• Whether the applicant was entitled to a spoliation order when it had unlawfully removed property without a court order
• Whether the applicant was acting lawfully when removing the movable assets from the leased premises
• Whether an interim interdict can be granted to prohibit lawful conduct by the police in the course of their investigations
• Whether the Deputy Sheriff exceeded his mandate under the HC 1153/11 order by assisting in removal of movable property

The application for a spoliation order was dismissed with costs on the legal practitioner and client scale awarded against the applicant.

An applicant seeking a spoliation order or interdict must be acting lawfully. A party cannot obtain interdictory relief to prohibit lawful conduct by others, including police investigations. A court order must be executed strictly within its terms - a Deputy Sheriff executing a reinstatement order has no authority to assist in the removal of movable property unless specifically authorized by the order. A party who unlawfully takes property without a court order, even with the assistance of a Deputy Sheriff acting beyond his mandate, cannot subsequently seek spoliation relief against the rightful owner or authorities investigating the unlawful taking.

The court observed that the applicant had the benefit of legal representation throughout the proceedings, implying that the unlawful conduct was particularly egregious given that legally advised parties should know better than to remove property without proper court authorization. The court's award of costs on a legal practitioner and client scale (a punitive cost order) reflects judicial disapproval of the applicant's conduct in misleading the Deputy Sheriff and abusing court processes.

This case reinforces the principle that a party seeking an interdict or spoliation order must come to court with clean hands and must be acting lawfully. It demonstrates that court orders must be strictly interpreted and executed only within their terms - a reinstatement order does not authorize removal of movable property. The case also confirms that interim interdicts cannot be used to prohibit lawful conduct by authorities such as police acting in the course of their investigations. The award of costs on a legal practitioner and client scale emphasizes the court's disapproval of misleading conduct and abuse of court processes.