GIFFORD v MUZIRE & ORS 2007 (2) ZLR 131 (H)

Flynote

Practice and procedure ” application ” urgent ” application for spoliation C order ” generally should be dealt with on urgent basis

Property and real rights ” spoliation order ” requirements for ” peaceful and undisturbed possession ” possession tainted with illegality ” not peaceful and undisturbed possession

Headnote

â–· All that an applicant for a spoliation order has to show is that his matter cannot wait the observance of normal procedures and time frames set by the rules of court for ordinary applications without rendering nugatory the relief that he seeks. The preservation of law and order and the prevention of self help in the resolution of disputes place an application for spoliation in this unique position. To wait for the ordinary time limits and procedures to apply would undermine these salutary aims and encourage the usurpation of the due process by the strong and well connected at the expense of the weak and disadvantaged. In determining whether a matter involving spoliation is urgent, the court will in the exercise of its discretion obviously be guided by the specific averments of fact that are made in the particular case before it.

One of the requirements for a spoliation order is that the applicant must show that he was in peaceful and undisturbed possession of the property. Where a farmer who had been dispossessed of his farm under the land reform programme remained in physical control of the farm even though his continued stay had become illegal, his possession could not be peaceful and undisturbed because it was tainted with illegality.