HJ Voster (Private) Limited and Another v Save Safaris (Private) Limited and 2 Others (41 of 2022) [2022] ZWSC 41 (25 March 2022)

Judgment No. SC 41/22 Civil Appeal No. SCB 43/21 (1) H J VOSTER (PRIVATE) LIMITED (2) NEVISON MAKETO v (1) SAVE SAFARIS (PRIVATE) LIMITEDD (2) PARKS AND WILDLIFE MANAGEMENT AUTHORITY (3) MINISTER OF LANDS, AGRICULTURE AND RURAL SETTLEMENT NO SUPREME COURT OF ZIMBABWE GWAUNZA DCJ, CHITAKUNYE JA & MWAYERA JA BULAWAYO: MARCH 23 AND 25, 2022 C. Ncube with B. Dube, for the appellants. J. Mugova, for the first respondent. No appearance for the second respondent. B. Moyo, for the third respondent. MWAYERA JA: This is an appeal against the whole judgment of the High Court sitting at Bulawayo handed down on 9 September 2021 granting an application for a spoliation order in favour of the first respondent. FACTUAL BACKGROUND The first respondent filed an urgent chamber application for a spoliation order in the High Court on 27 August 2021. The basis of the application was that the appellants had unlawfully deprived it of possession of part of a certain piece of land being Lot 4 Devuli Ranch (the land), by hiring thugs to violently and forcefully beat up the first respondent’s employees. It was the first respondent’s case that the land was initially owned by the appellant under Deed of Transfer 5251/92 but the land was compulsorily acquired by the State on 29 September 2005. Judgment No. SC 41/22 Civil Appeal No. SCB 43/21 It was the respondent’s case that following the acquisition of the land, it was ceded to the second respondent who in turn leased the land to it under a 5 year lease agreement. It was against this background that the first respondent took possession of the land. In response to the application, the appellants raised three preliminary points. It was their case that the matter was not urgent, that the person who had deposed to the affidavit on behalf of the first respondent did not have authority to do so and that there was an extant ex parte order of the Magistrates Court, under case number INT14/21, which interdicted the first respondent from interfering with the exercise of the appellants’ rights on the land. On the merits, the appellants argued that there was no evidence to prove that they had hired thugs to attack the first respondent’s employees, thereby dispossessing it of the land. The appellants submitted that they owned the land in question and that it had title deeds to prove this averment. The court a quo dismissed all the preliminary points raised by the appellants. It held that the resolution authorizing the deponent to depose to the founding affidavit had been provided. The court also made a finding that the appellants had failed to explain with precision the dates upon which the ex parte application was filed in the Magistrates Court. It held that since the ex parte order was granted on 31 August 2021, an inference could be drawn that it was filed in order to counter the urgent application which was served on them on 30 August 2021, hence the court could proceed to determine the matter. Judgment No. SC 41/22 Civil Appeal No. SCB 43/21 On the merits, the court a quo found that it was not in dispute that the first respondent was in peaceful and undisturbed possession of the land and as such the remedy for spoliation ought to be granted. The appellants appealed against that decision to this Court. They submitted in their grounds of appeal that the court a quo erred in the following respects: 1. By disregarding an extant order of the Magistrates Court in circumstances where it was sitting as a court of first instance. 2. By granting a spoliation order when the first respondent had failed to prove that it had been despoiled by the appellants. APPELLANTS’ SUBMISSIONS ON APPEAL In motivating the appeal counsel for the appellants Mr Ncube argued that the court a quo erred at law in finding that the first respondent had produced sufficient evidence to prove its case of spoliation. He maintained the position that the appellants had nothing to do with the attack that took place on 19 August 2021. The position that the second appellant was at the scene of the incident was disputed. Mr Ncube also argued that the court a quo erred by ignoring an extant order of the Magistrates Court in circumstances where it was sitting as a court of first instance. In support of the argument, he relied on the case of Toro v Vodge Investments (Pvt) Ltd & Ors SC 15-17 which lays down that where the High Court sits as a court of first instance, it ought not to ignore an extant order of a lower court. FIRST RESPONDENT’S SUBMISSIONS ON APPEAL Per contra, counsel for the first respondent Ms Mugova argued that the decision of the Magistrates Court did not have any bearing on the proceedings which where before the Judgment No. SC 41/22 Civil Appeal No. SCB 43/21 court a quo. Her argument stemmed from the fact that the proceedings before the court a quo related to spoliation whilst the proceedings which were before the Magistrates Court related to an interdict. She submitted that the circumstances in the case of Toro v Vodge Investments supra are distinguishable from the present matter. She further argued that the ex parte application was filed in the Magistrates Court so as to frustrate the proceedings which were before the court a quo. More so, she submitted that evidence was led placing the second appellant at the scene of the incident which took place on 19 August 2021. She insisted that if the appellants had not dispossessed the first respondent then they would not have approached the Magistrates Court seeking an interdict against the first respondent. Counsel for the third respondent indicated that he did not have submissions any to make. APPLICATION OF THE LAW TO THE FACTS It is trite that when sitting as a court of first instance, the High Court cannot disregard extant orders of the lower court. This principle was well captured in the case of Toro v Vodge Investments supra wherein UCHENA JA held as follows: “The High Court being a court of first instance does not have authority to disregard or overrule extant decisions of the Magistrates Court. The court a quo should therefore have declined to determine the already determined issue of the first respondent’s locus standi to evict the appellant, while the decisions of the Magistrate remains extant.” However as correctly argued by counsel for the first respondent, despite the order of the Magistrates Court being extant, it did not have any bearing on the proceedings which were before the court a quo. The extant order interdicted the first respondent from entering the appellant’s portion of Lot 4 Devuli or interfering with its facilities. On the other hand the proceedings before the court a quo related to a spoliatory relief concerning the portion of the Judgment No. SC 41/22 Civil Appeal No. SCB 43/21 land that was occupied by the first respondent. These are two different remedies at law. In light of this, it cannot be said that the court a quo improperly ignored an extant order. It is pertinent to note that the authenticity of the Magistrates Court order itself is highly questionable. Firstly the record of proceedings relating to that order was not availed to the court a quo. Secondly the date of filing of the application was not known. Thirdly missing from the order is the date of hearing and the details of the presiding magistrates. Further the order was not signed by the clerk of court as is normally the case. The appellants who claim that they obtained the order from the Magistrates Court are also not aware of the date on which it was filed. The ex parte application was granted on 31 August 2021, after the urgent application for a spoliatory relief was served on the appellants on 30 August 2021. In the circumstance the inference drawn by the court a quo cannot be said to be out of sync with the notion that the order was irregularly obtained. Turning to the question of whether or not the court a quo erred when it granted the application for a spoliation order, the argument by the appellants is that the requirements for the granting of spoliation were not met in the court a quo. In determining whether or not the court a quo erred by granting the spoliation order, the case of Botha & Anor v Barrett 1996 (2) ZLR 73 (S) GUBBAY CJ at p 79 D-E is instructive as it states that: “It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are: 1. That the applicant was in peaceful and undisturbed possession of the land; and, 2. That the respondent deprived him of the possession forcibly or wrongfully against his consent.” In discussing the requirements for a spoliation order, the Supreme Court in Streamsleigh Investments (Pvt) Ltd v Autoband (Pvt) Ltd SC 30-12 held as follows: Judgment No. SC 41/22 Civil Appeal No. SCB 43/21 “It has been stated in numerous authorities that before an order for mandament van spolie may be issued an applicant must establish that he was in peaceful and undisturbed obsession and was deprived illicitly. In Scoop Industries (Private) Limited v Longlaagte Estate & GM Co Limited (In Vol Liq) 1948 (1) SA 91 (W) LUCAS A. J said at pp98-99. “Two factors are requisite to found a claim for an order for restitution on allegation of spoliation. The first is that the applicant was in possession and the second that he has been wrongfully deprived of that possession against his wish. It has been laid down that there must be clear proof of possession and illicit deprivation before the order is granted.” (Underlining for emphasis) The deciding factor is that the deprivation should be done unlawfully and that the applicant was in peaceful and undisturbed possession. It is not in dispute that the first respondent was in occupation of its portion of the land, whether rightly or wrongly. Counsel for the appellants conceded that both parties were on the same land although they occupied different portions. The appellants do not dispute that the first respondent was despoiled of the land. This Court therefore takes the view that the court a quo correctly granted the first respondent the spoliatory order in view of the fact that the requirements for such order had fully established. The appellants’ argument that they are not the ones who despoiled the first respondent is without merit. A number of factors attest to this. Firstly after being served with the application for spoliation the appellants rushed to the Magistrates Court seeking an ex parte order interdicting the first respondent from moving back on to the land. Secondly Counsel for the appellant could not proffer an answer for such conduct. Thirdly the presence of the second appellant at the scene in the company of the despoilers could not be explained. In light of all these circumstances, it cannot be said that the appellants were not involved in the dispossession of the first respondent. Judgment No. SC 41/22 Civil Appeal No. SCB 43/21 Further the argument advanced by counsel for the appellants that the first appellant is the owner of the land in question lacks merit since the remedy of spoliation is not concerned with ownership but peaceful and undisturbed possession. In Minister of Mines and Mining Development v Grandwell Holdings (Private) Limited SC 34-18 p17, this Court quoted with approval the case of Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) wherein the court commenting on the remedy for spoliation remarked as follows: “Lawfulness of possession does not enter into it. The purpose of the mandamus van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these principles, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims by each party… In fact, the classic generalisation is sometimes made that in respect of spoliation actions even a robber or thief is entitled to be restored possession of the stolen land.” The Court finds that the decision of the court a quo is in all respects unassailable. The appeal is without merit and must fail. Costs follow the cause. Accordingly it is ordered as follows: The appeal be and is hereby dismissed with costs. GWAUNZA DCJ: I agree CHITAKUNYE JA: I agree Judgment No. SC 41/22 Civil Appeal No. SCB 43/21 Mabundu & Ndlovu Law Chambers, appellants’ legal practitioners Messrs Mlothswa & Maguwudze , first respondent’s legal practitioners Civil Division, Attorney-General’s Office, third respondent’s legal practitioners