KAMA CONSTRUCTION (PVT) LTD v COLD COMFORT FARM CO-OPERATIVE & ORS 1999 (2) ZLR 19 (S)

Flynote

Property and real rights — spoliation order — when may be granted — limits as to circumstances when may be granted — a concept of quasi-possession giving right to spoliation order — not extending to right of access to property granted under a management agreement

Headnote

The appellant company had entered into an arrangement with the trustees of the respondent co-operative with a view to restoring the co-operative to financial viability. It became involved in the management of the farm run by the co-operative and in various of the farm's activities. A dispute later arose and the arrangement was terminated by the co-operative. The appellant sought a spoliation order from the High Court, restoring it to peaceful possession of the farm. A provisional order was granted, but was not confirmed. The appellant appealed against the refusal to grant the spoliation order.

Held, that a spoliation order was not the proper remedy for the wrong alleged by the appellant; it should have sued for specific performance of the contract, together with interlocutory relief in the form of an interdict. Nonetheless, it would have been entitled to an interdict if it could have established possession and unlawful dispossession. Held, further, that the law also recognises so-called quasi-possession or juridical possession. Spoliation would be available as a remedy where a person has been deprived unlawfully of his quasi-possession of a moveable or immovable incorporeal. For example, to cut off the supply of electricity to an apartment is to seriously interfere with the possession of the apartment. But one must not overstate the availability of spoliation proceedings in regard to quasi-possession or define too widely the concept of quasi-possession. Held, further, that the appellant had never possessed the farm. It had access to the farm, and still had, as a member of the co-operative. What it had lost was its right to give orders to the farm employees. This was only a contractual right, but did not found a contractual right of use.