BANGA & ANOR v ZAW & ORS 2014 (2) ZLR 288 (H)

Flynote

Property and real rights — spoliation order — requirements for — need for c applicant to show he was present on or otherwise in possession of property at time of alleged dispossession

Headnote

The legal requirements for a mandament van spolie, which the applicant b must prove on a balance of probabilities, are that (a) the applicant was in peaceful and undisturbed possession of the thing; and (b) he was unlawfully deprived of such possession. "Unlawful deprivation" means that the respondent deprived the applicant of possession forcibly and wrongfully, against his consent. The valid defences against a spoliation c claim include: (a) the applicant was not in peaceful and undisturbed possession of the thing in question at the time of dispossession, and (b) the dispossession was not unlawful and therefore did not constitute spoliation.

"Possession" has been described as a compound of a physical situation and of a mental state involving the physical control or detentio of a thing by f a person and a person's mental attitude towards the thing. Whether or not a person has physical control of a thing, and what his mental attitude is towards the thing, are both questions of fact. In spoliation proceedings the lawfulness or otherwise of the possession challenged is not an issue. Spoliation simply requires the restoration of the status quo ante pending g the determination of the dispute between the parties. A lease agreement or an alleged "caretakership" agreement do not constitute a valid basis to establish possession. It is necessary for the applicant to establish that he was present on or otherwise in possession of the premises in question on the day of the alleged spoliation. If he was not in possession of the premises at the relevant time, he could not be unlawfully dispossessed. h