TRUSTEES, SOS CHILDREN'S VILLAGE ASSOCIATION OF ZIMBABWE v BINDURA UNIVERSITY & ORS 2014 (2) ZLR 36 (H)

Flynote

Interdict — spoliation order — mandament van spolie — not the same thing — differences between the remedies

Legal practitioner — conduct and ethics — practitioner a witness to events forming the subject matter of litigation — legal practitioner not disbarred from representing client in court proceedings — inadvisability of acting

Property and real rights — spoliation order — mandament van spolie — requirements for — peaceful and undisturbed possession — remedy not available in event of temporary disturbance of possession or a threat thereof — interdict — not the same as a mandament van spolie — differences between the remedies

Headnote

There is no rule to the effect that a lawyer is automatically disbarred from representing his client in court proceedings where he was a witness to events that subsequently form the subject matter of those proceedings or where he has filed an affidavit confirming his involvement or supporting his client's version of events. Nonetheless, a lawyer who finds himself in that situation must consider seriously the wisdom of wearing two hats: that of being counsel for the client and that of being a witness for the client. It would be more prudent to let someone else conduct the court proceedings where the lawyer has been seriously involved in the affairs of the client giving rise to the litigation. This is so to avoid a conflict situation. The lawyer should at all times avoid clouding his sense of judgment.

The remedy of spoliation or mandament van spolie is designed to restore at once possession which has been deprived unlawfully. The applicant must show that he was in peaceful and undisturbed possession of the thing and was unlawfully deprived thereof. It is a quick remedy and its rationale is to prevent anarchy in society. People must not resort to self help each time they want to recover things they consider belong to them and which may be in possession of another. The remedy is, however, only aimed at the recovery of lost possession. It does not lie where there has been a mere temporary disturbance of possession or a threat that possession will be disturbed.

The mandament van spolie is a unique remedy that falls within a category of its own and should not be confused with an interdict. The most important difference between the mandament and an interdict is that the merits are not considered where the mandament is claimed, whereas the merits are extremely important where an interdict is sought, in that a clear right has to be established