NAME PRIDE MUCHEMBERE

REGITRATION NUMBER R205614F

PROGRAM BACHELOR OF PROCEDURAL LAW

FACULTY LAW

COURSE NAME CIVIL PROCEDURE (LOWER COURTS)

LECTURER MR DEMBURE

DUE DATE 27 MARCH 2024

a, Remedies available to Sharon in the circumstances

Sharon can apply for a Spoliation order also known as the Mandament Van Spolie.

What is mandament van spolie (Spoliation order)

It is defined as “an order compelling a person who has dispossessed another of his
property to restore possession.”1 It is a common law remedy available to any person
who has been unlawfully dispossessed of their property and its aim is to prevent
people from taking the law into their own hands for instance self-help measures. 2The
case of Zondiwa Manyande v Isaac Tamuka Mahachi3also cements the same notion as
it was held that spoliation proceedings emanates from a common law remedy which
is meant to discourage members of the public from taking the law into their own
hands. The very same idea was also buttressed by the case of Mswelangubo Farm (pvt)
ltd v Kershelmar Farms4 where it held that this remedy compels members of the
society to follow due process in obtaining or acquiring any res, they believe belongs to
them in the circumstances where they have been unlawfully dispossessed. It also
highlighted that our law deprecates self-help. Even Commercial Farmers Union case
supra5makes it apparent that anarchy and chaos brought about by self-help is not
acceptable .In addition, the case of Augustine Banga & Anor v Solomon Zawe & Ors 6
goes a step further to allude that the spoliation order simply requires the restoration
of the status quo ante pending the determination of the dispute of right between
parties. Therefore, in winding up what a mandament van spolie is , the case of Nino
Bonino v De Lange7 brought about a very significant point to note when the court was
outlining the scope of the mandament van spolie and held that it is a fundamental
principle that no man should take the law into their own hands, no one is permitted
to depose another forcibly or wrongfully against his consent of possession of property,
if he does so , the court will summarily restore the status quo ante .Therefore, it its
apparent from the facts of the case that Sharon is eligible to apply for a mandament
van spolie as a remedy in these given circumstances.

1
The Law of Contract in Zimbabwe, I Maja, Maja Foundation, 2015.
2
H.Barter, What is spoliation, 2022.
3
Nyamande v Mahachi and Anor (45 of 2023) [2023] ZWSC 23 (29 May 2023).
4
Mswelangubo Farm (pvt) ltd v Kershelmar Farms (pvt) ltd & Ors SCB 80/22.
5
Commercial Farmers Union and others v Minister of Lands and Rural resettlement and others SC
31/10.
6
Augustine Banga & Anor v Solomon Zawe & Ors SC 54/14.
7
Nino Bonino v De Lange 1906 TS. 120.
Requirements for a Mandament van spolie.

In obtaining a spoliation order, Sharon must be cognizance of the essential elements

or requirements so that she can be granted the order. These are:

 The applicant must have been in peaceful and undisturbed possession of the
property -This element was satisfactorily enunciated in the case of Botha and
Another v Barrent8 where GUBBAY CJ (as he then was) stated that in order to
obtain a spoliation order, it must be proved that the applicant was in peaceful
and undisturbed possession of the property. This element is also buttressed by
the case of Streamsleigh Investments (pvt) ltd v Autoband (pvt) ltd 9 where it
was held that before granting a mandament van spolie, the applicant must
establish that he was in peaceful and undisturbed possession and was deprived
illicitly.

An analysis of whether this requirement can be proved from the facts given .

Therefore, taking a scrutiny at the contents of the case in question, between

Sharon and Peter, when Peter and his gang forcibly seized and took away the
vehicle from Sharon who had parked it at her house in Msasa Park, Sharon was
in undisturbed and peaceful possession of the vehicle as she had peacefully
parked it at her homestead when it was seized. Also, according to the facts of
the case, Sharon was in an undisturbed possession of this vehicle where she
used it since the 1st of December to drive to her workplace in Granite site as
well as using it to transport her two minor children to school to Westgate.
Therefore, since this requirement is in sync with and can be proved by what
actually transpired when the vehicle was seized, it shows that Sharon can
legally file for a mandament van spolie from the Magistrates court since the
contents rules in her favour.

 The respondent must have deprived him of the possession forcibly or wrongfully
against his consent as held in the case of Richard Thomas Etheredge v The
Minister of State for National Security Responsible for Lands, Land Reform and
Resettlement and Senator Edna Madzongwe10 where it was held that where the
possessor is violently despoiled of his property he is immediately clothed with
locus standi in judicio to bring an application for the restoration of possession
to that property. This requirement was also strengthened by INNES CJ in Nini
Bonin v de Lange supra that it is a fundamental principle that no man is
8
Botha & Anor v Barret 1996 (2) ZLR 73 (S).
9
Streamsleigh Investments (pvt) ltd v Autoband (pvt) ltd 2014 (1) ZLR 736.
10
of Richard Thomas Etheredge v The Minister of State for National Security Responsible for Lands,
Land Reform and Resettlement and Senator Edna Madzongwe (HH) 16-2009.
 allowed to take the law into his own hands ; no one is allowed to dispossess
another forcibly or wrongfully and against his consent of the possession of the
property. Further, as explained by MILLIN J in De Jager and Ors v Farah and
Nedstadt11, a case where demolition of premises was undertaken without legal
process, the principle is that a person in possession of property, however
unlawful his possession may be and however exposed he may be to ejectment
proceedings, cannot be interfered with his possession except by the due
process of law.

An analysis of whether this requirement can be proved from the facts given.

It is ostensible from the description itself from the facts of this case of hoe the
vehicle was seized that it was taken forcibly and wrongfully without Sharon’s
consent. The facts uses the term “ …gang forcibly seized…” showing that the
vehicle was seized with force. Also, the use of the word “gang” which was
defined by Stephen G.Rodriguez and Partners12 as “an organized group of of
three or more persons whose primary activity is the commission of criminal
acts” shows that the seizure was done unlawfully and forcibly. Further, the
fact that Peter and his accomplices took away the vehicle where Sharon had
parked it without her consent, it shows that the seizure was prima facie
wrongful. Ownership is not a requirement here, whether she had not yet paid
the full amount is out of question. As was noted by GOWORA JA (as he then
was) in Gumbo v Zimbabwe Anti-Corruption Commission 13that in an application
for spoliation order, the court does not decide what the rights of the parties to
the property were before the alleged spoliation, the only factors to consider
were the possession and whether or not the appellant had been unlawfully
deprived of the property in question. The court in Magadzire v Magadzire case 14
further reiterated that spoliation has nothing to do with rights of ownership,
but is concerned solely with possession and the unlawful deprivation thereof.
The remedy for spoliation is preliminary to any investigation into the merits of
the dispute pending a final determination of the partie’s respective rights. 15
Therefore, the question of whether Sharon had ownership or possession rights
of the vehicle, whether she had or not paid the remaining sum of US$25,000 is
out of topic hence she is eligible to file for a mandament van spolie since the
requirement of a wrongful dispossession can be proved from the facts given.

11
De Jager and Ors v Farah and Nedstadt 1947 (4) SA 28.
12
Stephen G.Rodriguez and Partners Legal Guide.
13
Gumbo v Zimbabwe Anti-Corruption Commission 2018 (1) ZLR 672 E.
14
Magadzire v Magadzire SC 197/98.
15
www.bartermckellar.law.
  The property should still be in existence “if the thing has been destroyed or
lost restoration is impossible and thus the mandament van spolie would not be
applicable as held in the case of Rikhotso v Northcliff16.Therefore, this
requirement can be proved from the facts given since it was not mentioned
that Peter destroyed this vehicle, hence by virtue of the vehicle only being
seized one would assume it’s still in existence.

Procedure that Sharon should adopt in obtaining the mandament van spolie.

Circumstances may arise in which a person needs to approach a court for

urgent relief. In such a situation, the applicant may not be able to comply with
all the standard requirements and time limits. In the case of Nyamande v
Mahachi supra, the court a quo held that an application for spoliation is urgent
by its nature. This notion is also buttressed by the case of Farai Mushoriwa v
City of Harare 17whereby BHUNU J held that a spoliation order is an urgent
chamber application hence Sharon needs to follow the application procedure
under the rules set out in Order 22 of the Magistrates Court Rules, 18 .In this
context Sharon commences proceedings by issuing a notice of motion, which
serves to advise the Peter of her claim and the relief which she seeks after
which the application itself is served on the respondent. The notice of motion
is usually accompanied by a founding affidavit19. Sometimes one or more
supporting affidavits and relevant documentation are attached to the
affidavit(s). It is trite to note that all applications must be supported by
affidavits which sets out the facts on which Sharon relies for relief. Further,
the notice of motion is addressed to the party (or parties) against whom relief
is sought, as well as to the registrar or clerk of the court and to any other
person if it is necessary or appropriate to inform that person of the application.
These requirements ensure that the audi alteram partem principle is adhered
to20.

Nevertheless, it is wise for Sharon to pursue what not just an ordinary

application procedure but an urgent application procedure which is rendered
faster and far cheaper than summons proceedings. As held in the case of
Document support centre (pvt) Ltd v Mapurire 21, urgent applications are those
where, if the courts fail to act, applicants may well be within their rights to
suggest dismissively to the court that it should not bother to act subsequently,

16
Rikhotso v Northcliff Ceramics (Pty) Ltd 1997 (1) SA 526 (W).
17
Farai Mushoriwa v City of Harare (HH) 195 -14.
18
Magistrates Court (Civil) Rules, 2019.
19
Ex-Combatants Security Co v Midlands State University 2006 (1) ZLR 531 (H).
20
Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S).
21
Document support centre (pvt) Ltd v Mapurire 2006 (2) ZLR 240 (H).
 as the position would have become irreversible to the prejudice of the
applicant.

What constitutes urgency?-Sharon was using this vehicle to transport her two
minor children to school in Westgate as well as driving herself to her workplace
in Graniteside.Further, to cement this, Sharon has no other motor vehicle to
use and her home area is not serviced by any reliable public transport
operators hence its an urgent matter deserving an urgent application. It is also
crucial to note that urgent chamber applications should only be made in cases
where there is a genuine urgent need for immediate relief as held in Document
support centre (pvt) Ltd v Mapurire supra. Sharon must then prove the
requirements that validate the case as a matter of urgency to the court.
Urgency also entails that the applicant must not delay in the enforcement of
their rights as held in the case of Kalayi Sikhaphakhapha Njini and Berthilde
Juliet Njini v Solwayo Ngwenya and Bulawayo City Council22.

Other jurisdictions: South Africa as held in the South African Rule 6(12) (b) of
the Uniform Rules of Court has it that “In every affidavit or petition filed in
support of any application under para (a) of this subrule, the applicant shall
set forth explicitly the circumstance which he avers render the matter urgent
and the reasons why he claims that he could not be afforded substantial
redress at a hearing in due course”23. There are thus two requirements that
must be set forth in the founding affidavit in order to satisfy the requirements
of the rule24. Whether an applicant has succeeded in satisfying the
requirements for urgency must be determined by the contents of the founding
affidavit25.

The leading case on the question of how and when an urgent application may be in
Chidawu and Ors v Shar and Ors26 where it was held that a certificate of urgency must
be prepared by a legal practitioner after personally and carefully assessing the
urgency of the application. Similarly, a party is required to apply to the court and
indicate that the matter is urgent and the application must be accompanied by an
affidavit in which the applicant outlines the urgency of their dispute. The importance
of an affidavit in urgent applications was explained in the case of Solidarity obo
Members and others v SEESA27 when South Africa’s Labour Court noted that a case of
urgency must be shown in the founding affidavit, failure may render the application

22
Kalayi Sikhaphakhapha Njini and Berthilde Juliet Njini v Solwayo Ngwenya and Bulawayo City Council
HB 190/11.
23
South African Rule 6(12) (b) of the Uniform Rules of Court.
24
Salt and Another v Smith 1991(2) SA 186 (NM), at 187 A.)
25
(IL&B Marcow Caterers v Greatermans SA 1981(4) SA 108(C).
26
2011 (2) ZLR 426 (H).
27
Solidarity obo Members and others v SEESA (PTY) Ltd (J 37/22)2022.
unsuccessful. If a lawyer is representing the applicant, it is expected that a
certificate of urgency is filed by the lawyer .Further, in the case of Triple C Pigs and
Anor v Commissioner General, Zimbabwe Revenue Authority28, it was held that a
party who brings proceedings urgently gains a considerable advantage over persons
whose disputes are being dealt with in the normal course of events.

B, The procedure that Peters would adopt to have the claim determined without
having to go all the way to trial.

Peters can apply for a summary judgement so as to avoid going all the way to trial.

What is a summary judgement?

Order 15 of the Magistrates Court (Civil) Rules, 2019, application for summary
judgement may be made where the defendant has entered an appearance to defend.
In simplified terms, a summary judgement is a legal procedure in which a judge can
decide a case without having to go through a full trial. Summary judgment entitles
one party to judgment when the Court believes no “material issue of fact” exists on
the issue raised before the Court, and the Court must enter judgment as a matter of
law .In the case of Kambuzi Nine Mine (pvt) limited versus Douglas Palframan and
others29 the applicant launched a summary judgment application on the basis that the
plea reveals no bona fide defence at all to the applicant’s claim and that appearance
has been entered solely for dilatory purposes. The Act further goes on to provide that
whether in the main claim or counter claim, the summary judgement may by
application supported by a founding affidavit.

However, in summary judgements, the defendant can raise a defence that can
succeed in defeating a plaintiff’s claim for summary judgment. Thus what the
defendant must do is to raise a bona fide defence – a ‘plausible case’ – with
‘sufficient clarity and completeness’ to enable the court to determine whether the
affidavit discloses a bona fide defence as poignantly stated by ZIYAMBI JA in
Kingstons Ltd v L. D Ineson (Pvt) Ltd30.

Application of law to the facts to ascertain whether Peters can succeed in obtaining a
summary judgement.

Sharon, by virtue of entering an appearance to defend, there are some elements of

acknowledging the debt hence Peters can obtain a summary judgement .Also, the
Magistrates Court (Civil) Rules, 2019 has it that supported by a founding affidavit, the
applicant can apply to the court for a summary judgement on any claim in the
summons where the list includes a liquidated amount in money. Therefore, since
28
4 2007 (1) ZLR 27 (H).
29
Kambuzi nine mine (pvt) limited versus Douglas Palframan and Stephen Murambasvina HC 1472-15.
30
Kingstons Ltd v L. D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) 458.
Sharon is owing Peters a sum of US$25 000, Peters is eligible for applying for a
summary judgement.
Legal requirements for a summary judgement and for Peters to succeed in obtaining
judgement against Sharon.
 There must be no genuine issue of material fact in dispute - Summary
judgment entitles one party to judgment when the Court believes no “material
issue of fact” exists on the issue raised before the Court.
 The defendant has entered an appearance to defend-according to Order 15 of
the Magistrates Court (Civil) Rules, 2019 and apparently, the facts states that
Sharon entered an appearance to defend hence Peters meet the legal
requirements to obtain a summary judgement.
 The moving party must be entitled to judgement as a matter of law- Peters in
this case meets this requirement because Sharon has entered an appearance to
defend showing she is acknowledging the debt.
 The evidence must support the moving party’s position-from the facts of the
case, it is clear that Sharon is at fault since she failed to pay the debt by the
due date agreed and to make matters worse, Peters tried calling her to follow
up on the payment but she did not answer the calls. Further, Peters went on to
send her a letter of demand but Sharon did not respond. Hence all this shows
that the evidence support Peters position.
 The non-moving party must have had a chance to present their own evidence
and argument.
Case law on the legal requirements for summary judgement
The law on summary judgement is settled in Tavenhave & Machingauta Legal
Practitioners v The Messenger of Court 31 where the Court elucidated the
requirements when it made the following pronouncement:
“Summary judgement is a drastic remedy which will only be granted where it is clear
that the defendant has no bona fide defence and has entered appearance to defend
solely for purposes of delay. Because of the drastic nature of the remedy a court
will not grant it if there is any possibility that the defence raised on papers might
succeed. Thus it has been held that a mere possibility of success will suffice to avoid
an order for summary judgment …”
Also, in the case of Eastlea hospital (private) limited v Martha Ndoro and others 32, the
judgment of the court a quo was set aside and substituted with the granting of the
summary judgement with costs after the court after a careful analysis of the appeal
came to the conclusion that the applicant satisfied all the requirements to be
granted a summary judgement.

31
Tavenhave & Machingauta Legal Practitioners v The Messenger of Court SC 53/14.
32
Eastlea hospital (private) limited v Martha Ndoro and others Civil Appeal No. SC 563/22.
In summation, it is trite to note that Robinson J in Intercontinental Trading (Pvt) Ltd v Nestle
Zimbabwe (Pvt) Ltd33 warned that parties to a contract must not cry foul when they are taken to
court when they fail to honour part of their contract .The law of contract by Maja clearly states
that a party who fails to honour the terms or contractual obligations may suffer the consequences
of breath. Further, parties should not resort to self-help measures, they should rather allow the
law to take its course and follow the due process.

Bibliography
33
Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 37.
Case law
Nyamande v Mahachi and Anor (45 of 2023) [2023] ZWSC 23 (29 May 2023).
Mswelangubo Farm (pvt) ltd v Kershelmar Farms (pvt) ltd & Ors SCB 80/22.
Commercial Farmers Union and others v Minister of Lands and Rural resettlement
and others SC 31/10.
Augustine Banga & Anor v Solomon Zawe & Ors SC 54/14.
Nino Bonino v De Lange 1906 TS. 120
Botha & Anor v Barret 1996 (2) ZLR 73 (S).
Streamsleigh Investments (pvt) ltd v Autoband (pvt) ltd 2014 (1) ZLR 736.
of Richard Thomas Etheredge v The Minister of State for National Security
Responsible for Lands, Land Reform and Resettlement and Senator Edna Madzongwe
(HH) 16-2009.
De Jager and Ors v Farah and Nedstadt 1947 (4) SA 28.
Gumbo v Zimbabwe Anti-Corruption Commission 2018 (1) ZLR 672 E.
Magadzire v Magadzire SC 197/98.
Rikhotso v Northcliff Ceramics (Pty) Ltd 1997 (1) SA 526 (W).
Farai Mushoriwa v City of Harare (HH) 195 -14.
Ex-Combatants Security Co v Midlands State University 2006 (1) ZLR 531 (H).
Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)
Document support centre (pvt) Ltd v Mapurire 2006 (2) ZLR 240 (H).
Kalayi Sikhaphakhapha Njini and Berthilde Juliet Njini v Solwayo Ngwenya and
Bulawayo City Council HB 190/11.
South African Rule 6(12)(b) of the Uniform Rules of Court.
Salt and Another v Smith 1991(2) SA 186 (NM), at 187 A.)
(IL&B Marcow Caterers v Greatermans SA 1981(4) SA 108(C).
Chidawu and Ors v Shar and Ors215 2011 (2) ZLR 426 (H).
Solidarity obo Members and others v SEESA (PTY) Ltd (J 37/22)2022.
Triple C Pigs and Anor v Commissioner General, Zimbabwe Revenue Authority
4 2007 (1) ZLR 27 (H).
Kambuzi nine mine (pvt) limited versus Douglas Palframan and Stephen
Murambasvina HC 1472-15.
Kingstons Ltd v L. D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) 458.
Tavenhave & Machingauta Legal Practitioners v The Messenger of Court SC 53/14.
Eastlea hospital (private) limited v Martha Ndoro and others Civil Appeal No. SC
563/22.
Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 37.

Legislation
Magistrates Court (Civil) Rules, 2019

South African Rule 6(12) (b) of the Uniform Rules of Court.

Books

The Law of Contract in Zimbabwe, I Maja, Maja Foundation, 2015.

Articles and journals

H.Barter, What is spoliation, 2022.

Stephen G.Rodriguez and Partners Legal Guide.

Websites

www.bartermckellar.law