Muchenje and Another v Minister of Local Government and Public Works N.O and 4 Others (840 of 2022) [2022] ZWHHC 840 (18 November 2022)

1 HH 840-22 CASE NO. HC 3750/20 REF. CASE NO. HC 4459/22 ZANELE MUCHENJE and TAFARA MUCHENJE versus MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS N. O and ARUSOME PROPERTY DEVELOPMENT (PVT) LTD and TANYARADZWA SHARON BWANYA and REGISTRAR OF DEEDS N. O and MUNYARADZI BWANYA HIGH COURT OF ZIMBABWE ZHOU J HARARE, 9 & 18 November 2022 Court Application – Spoliation T S T Dzvetero, for the applicants M S Bwanya, for the first and third respondents D Machingauta, for the second respondent No appearance for the fourth and fifth respondents ZHOU J: This is an application for a mandament van spolie, alternatively, for an order of contempt of court. The first and third respondents filed a counter-application in addition to their opposing papers. The matter was instituted as an urgent chamber application in July 2022. At the hearing of the urgent chamber application on 19 July 2022, an order by consent was granted in terms of which this application was ordered to be consolidated and set down for argument together with Case No. HC 3750/20 which is an application for review in terms of which the applicants herein were seeking the setting aside of the cancellation of their contract and the repossession of the immovable property which is the subject of the dispute between the parties. The property description is Stand 227 Carrick Creagh Township, Harare (hereinafter referred to as the property). HH 840-22 CASE NO. HC 3750/20 REF. CASE NO. HC 4459/22 At the hearing of the three matters the applicants withdrew the court application for review and tendered costs to the respondents. In respect of the instant application, the one for the mandament van spolie, the applicants withdrew their application against all the other respondents except the first respondent, Tanyaradzwa Sharon Bwanya. In respect of the counter-application, the applicants consented to the relief being granted in terms of the draft order portion which contains the terms of the final order sought. Thus, this judgment is in respect of the main application for a spoliation order, HC 4459/22 because it was the only matter that was contested. In respect of the counter-application, the order will be granted by consent in the terms set out in the draft order section under the terms of the final order sought. Background facts The applicants were allocated an immovable property, Stand 227 Carrick Creagh, in terms of a lease agreement entered into with the Government of Zimbabwe represented by the second respondent, the Minister of Local Government and Public Works. The lease agreement was cancelled by the second respondent and the property was repossessed on allegations of breach of the terms thereof. The cancellation and repossession were communicated by letter dated 18 May 2020, which referred to an earlier letter of 21 December 2018 by which the applicants had been notified of the breaches and called upon to remedy the breaches by paying the money stated in that letter. The applicants instituted Case No. HC 3750/20 challenging the cancellation of the lease agreement and the repossession of the property by way of review. As noted earlier on, that application was withdrawn on 9 November 2022. Notwithstanding the cancellation, the applicants remained in occupation of the property. In the meantime, the property was allocated to the first respondent who became the new lessee of the property. The first respondent signed her written lease on 13 April 2021. On 6 June 2022 the applicants were served with a letter dated 3 June 2022 written by the first respondent’s legal practitioners. The letter gave the applicants notice to vacate the property on the basis that the first respondent was the new lessee in respect of the property. The letter threatened legal proceedings if the applicants failed to vacate the property. The applicants reacted by instituting proceedings and obtained an order in HC 3900/22 which, inter alia, directed the parties to maintain the status quo pending determination of HC 3750/20. The order in HC 3900/22 was granted by consent on 16 June 2022. HH 840-22 CASE NO. HC 3750/20 REF. CASE NO. HC 4459/22 There are pending proceedings in the Magistrates Court instituted by the second respondent, the Minister, seeking the eviction of the applicants from the property. The Case No. is HREC-CG 2474/22. The conduct complained of in the instant application is that on 17 June 2022 the first respondent off-loaded bricks outside the perimeter wall of the property. On 20 June 2022 the first respondent accompanied by the fifth respondent, attended at the property and sought to discuss their intended construction work thereat. On 21 June 2022 the first respondent caused a wooden cabin to be delivered at the premises. The first respondent through her legal practitioners wrote a letter to the Harare City Council’s Acting Chamber Secretary dated 27 June 2022. The letter invited the municipal authorities to inspect the structures put up at the premises by the applicants and to demolish them if they were found to be illegal. The above developments triggered the filing of the instant application seeking a mandament van spolie or, alternatively, an order for first respondent to be held to be in contempt of court. The first respondent filed opposing papers as well as a counter application. In the opposing affidavit, the first respondent raises the preliminary objection that the applicants are in unlawful occupation of and illegally constructed structures on the property. On the merits, the respondent asserts that she has the right to occupy the property by reason of being the lawful holder of a lease agreement over that property. She denies, however, that she occupied the property but refers to a visit that she undertook for the purpose of inspecting the property in order to attend to the proposed subdivisions at the property. The first respondent further states that the order by consent that was granted in HC 3900/22 does not bar her from delivering bricks, visiting the property or taking steps to subdivide it. In the counter application the relief sought, which the applicants consented to, is that pending determination of the eviction proceedings instituted by the Minister in the Magistrates Court, the first and second applicants should be interdicted from constructing any brick and mortar structure at the property. The spoliation remedy The requirements for the mandament van spolie to be granted are settled in this jurisdiction. They are: (a) that the applicant was in peaceful and undisturbed possession (or occupation) of the property, and (b) that the respondent wrongfully or forcibly or unlawfully deprived the applicant HH 840-22 CASE NO. HC 3750/20 REF. CASE NO. HC 4459/22 of such possession without the consent of the applicant, see Botha & Anor v Barrett 1996 (2) ZLR 73(S) at 79E; Kama Construction (Pvt) Ltd v Cold Comfort Farm Cooperative & Others 1999 (2) ZLR 19(S). The fact of the applicants’ occupation of the property is not in dispute, and is therefore common ground. For the purposes of spoliation proceedings, the lawfulness or otherwise of their possession is irrelevant and does not constitute a valid defence to a claim for restoration of possession, see Mutsotso & Ors v Commissioner of Police & Ors 1993 (2) ZLR 329(H); Kwik- Pak (Pvt) Ltd v Mashiringwana & Anor 2009 (2) ZLR 292(H). The rationale for that approach is found in the principle that underpins the mandament van spolie – viz, spoliatus ante omnia restituendus est. The essence of this maxim is that in spoliation proceedings the status quo ante must be restored before the merits of the dispute can be dealt with. The only question that arises in casu, therefore, is whether the applicants were despoiled and, if there was dispossession, whether same was wrongful or unlawful. If the dispossession was unlawful the wrongfulness arises from the unlawfulness of the conduct. Two acts are alleged by the applicants as being constitutive of the dispossession. The first is the offloading of bricks. On the evidence led, there can be no dispossession arising out of the bringing of the bricks because these were placed outside the property on a public road. The applicants do not claim to have been in possession or occupation of the road. The second act is the bringing onto the property of a wooden cabin. It has not been shown how the cabin constitutes deprivation of possession. What is required for the purposes of spoliation is not mere interference with or obtrusive nuisance affecting possession, but the actual deprivation of such possession or occupation. The presence of a wooden cabin which is unoccupied cannot by any stretch of the imagination constitute deprivation of the right of possession. Indeed, during the hearing, Mr Dzvetero for the applicants confirmed upon inquiry by this court, that the applicants are the ones who remain in possession of the property today. They have not been ejected from the property; neither have they been locked outside the property. The applicant’s case for the mandament thus collapses on this ground alone. There is no need to inquire into the wrongfulness or otherwise of the conduct of the first respondent of bringing the bricks outside the property and placing a cabin inside the property, as these do not amount to dispossession. If the applicants consider that these two acts complained of make their occupation uncomfortable then HH 840-22 CASE NO. HC 3750/20 REF. CASE NO. HC 4459/22 the remedy is not the mandament van spolie but an interdict. However, in light of the cancellation of their lease and the withdrawal of the application challenging such cancellation, the applicants would encounter the insurmountable hurdle of failing to establish a right, whether prima facie or clear. Equally, the writing of a letter to the City of Harare inviting the local authority to inspect the premises and if necessary, to demolish illegal structures, does not constitute dispossession or any conduct which could be addressed by way of the mandament van spolie. For the above reasons, the application for a spoliation order cannot succeed because one of the essentials of that remedy has not been established. Contempt of Court The contempt of court allegations pertain to alleged failure to comply with or abide by the order that was granted in HC 3900/22. The same acts highlighted above ground the application. These are the offloading of bricks on the road outside the property, the bringing of the wooden cabin at the premises, and the writing of a letter to the City of Harare. Contempt of court is committed when a party wilfully disobeys an order of court which the party is aware of, see Lindsay v Lindsay (2) 1995 (1) ZLR 296(S) at 299B-C; Haddow v Haddow 1974 (1) RLR 5(G) at 6A. The order in HC 3900/22 enjoined the maintenance of the status quo as between the parties. In other words, until the review application in HC 3750/20 had been determined, the applicants were to remain in occupation of the property. As found above, the applicants are still in occupation of the property. The off-loading of bricks outside the property did not subvert the status quo. Equally, when the first respondent brought a wooden cabin that did not result in deprivation of occupation of the property. Likewise, the letter to the City of Harare was an attempt at seeking legal recourse, and does not amount to wilful disobedience of the order of court. On the facts alleged, there was no contempt of court. Costs The first respondent asked for attorney-client costs in both the opposing papers and the counter-application. These are a punitive award which is reserved for special cases such as where there is abuse of court process or the vexatiousness of a claim or defence. The first respondent has not justified the punitive order of costs. While the applicants relied on the wrong cause of action HH 840-22 CASE NO. HC 3750/20 REF. CASE NO. HC 4459/22 to remedy what they genuinely perceive to be a wrong, their conduct in that regard does not fall within the category of acts punishable by a special order of costs. Equally, the opposition to the counter-application does not fall into the category of defences that would qualify for the penalty of attorney-client costs. After all, after reflecting on the case the applicants consented to the order being granted in the counter-application. For these reasons, an order for costs on the ordinary scale is warranted. Disposition In the result, IT IS ORDERED THAT: 1. The main application is dismissed. 2. In respect of the counter-application, pending determination of the eviction proceedings instituted in the Magistrates Court under Case No. HRE C – CG 2474/22, the applicants in the main case and all persons occupying through them are interdicted from constructing any brick and mortar or other permanent structure on Stand 227 Carrick Creagh, Borrowdale Township, Harare. 3. Applicants shall pay the costs. Antonio & Dzvetero, applicants’ legal practitioners Mutuso, Taruvinga & Mhiribidi, first respondent’s legal practitioners