CHURCH OF THE PROVINCE OF CENTRAL AFRICA & ORS v JAKAZI & ORS 2011 (2) ZLR 231 (H)

Flynote

Property and real rights — spoliation — order — entitlement to — counter-spoliation by person first despoiled — when may be defence to claim for spoliation order — need for counter-spoliation to be part of res gestae — invoking assistance of police to regain property — not due process and not clothing repossession with legality

Headnote

The parties, factions within the Anglican Church in Zimbabwe, had been involved in a long-running dispute. They had in 2009 consented to an order which allowed each party to remain in charge and control of the church property which was in their respective possession at the time of the consent order. The parties complied with the consent order until the applicants filed an urgent chamber application claiming that they had been despoiled of a particular church by the respondents. The evidence showed that the priest of that church died in May 2011. The church warden retained the keys of the church and two other priests conducted services. In September 2011 the third and fourth respondents, priests in the respondents' faction of the church, approached the warden and demanded the keys. When he refused, they sought the assistance of the police who forced the warden to hand over the keys. The applicants sought a spoliation order. The respondents resisted. They claimed that they had possession of the church before the consent order was granted and that their action was an act of "counter-spoliation", an immediate reaction to the applicants' act of unlawfully depriving them of their possession of the church, after the death of the incumbent priest.

Held, that the evidence supported the applicants' contention that their faction of the church was in possession of the church on the death of the priest.

Held, further, that to prevent potential breaches of the peace, the law enjoins the person who has been despoiled of his possession, even though he is the true owner with all rights of ownership vested in him, not to take the law into his own hands to recover his possession: he must first invoke the aid of the law. If the recovery is instanter, in the sense of being still a part of the res gestae of the act of spoliation, then it is a mere continuation of the breach of the peace which already exists and the law condones the immediate recovery. However, if the dispossession has been completed, then the effort at recovery is not done instanter but is a new act of spoliation which the law condemns.

Held, further, that here, had the respondents' spoliation been completed by the time they discovered it, they would not be entitled to the defence of counter-spoliation, as that defence can only be successful if it is in stanter and forms part of the res gestae of original spoliation. If the victim of the first act of spoliation fails to act instanter and takes the law into his own hands to regain possession of the thing after the dispossession has been completed, his conduct would constitute a new breach of the peace and would be regarded as a separate act of spoliation, entitling the first spoliator to a spoliation order against him. The tussle for the keys took place long after the alleged first spoliation and could not be a basis for a defence of counter-spoliation. Counter-spoliation can only succeed if the despoiled party acts by resisting the on-going spoliation.

Held, further, that the use of the police in the dispossession of the applicants did not clothe the respondents' conduct with legality, as dispossession must be through the due process of the law.