(1)     AUGUSTINE     BANGA     (2)     KEVIN     JAMES

v

(1)     SOLOMON     ZAWE     (2)     THE     DEPUTY     SHERIFF

(3)     THE     OFFICER     IN     CHARGE,     BORROWDALE     POLICE     STATION

SUPREME COURT OF ZIMBABWE

MALABA DCJ, GWAUNZA JA, GOWORA JA,

PATEL JA & HLATSHWAYO JA

HARARE, NOVEMBER 6, 2013 & SEPTEMBER 8, 2014

T Mpofu, for the appellants

T Magwaliba, for the first respondent

GWAUNZA JA: This is an appeal against the entire judgment of the High Court, Harare, which was handed down on 20 March 2012.  In that court, the first respondent in casu brought an urgent application against the present first appellant and two others for an interim spoliation order.

The brief facts of the matter are as follows:

Since 2004, the first respondent occupied and used for business related to poultry, a part of the farm known as Plot 4 Sun Valley Borrowdale, also referred to as Welston Farm.  It  is not in dispute that the  first respondent did not own the farm in question but occupied and used the part on which fowl runs were located, initially in terms of what he referred to as a lease agreement, and later in terms of an alleged ‘caretakership’ agreement with the Government. Neither of these documents was tendered into evidence. On 11 November 2011, the Provincial Administrator for Harare Metropolitan Province addressed a letter to the first respondent, directing that he vacates the premises in question to allow full use of the farm by the legal owner thereof.  On 28 February 2012, the present appellant, purporting to act in terms of a power of attorney granted in his favour by the registered owner of the farm, who is the second appellant in this case, put chains and new locks on to the gate leading to the farm in question, thereby effectively locking the respondent out and barring him from entering the premises.  The first appellant also placed security guards by the same entrance.  It is not disputed that, on or soon after the day of the alleged spoliation, the respondent unsuccessfully sought to effect delivery of a consignment of chicks on to the disputed premises.  The appellants alleged, and the first respondent denied, that he vacated the premises in question of his own accord following receipt of the letter from the Provincial Administrator for Harare Metropolitan Province, and in any case before the date of the alleged spoliation.

The first respondent’s efforts to enlist the assistance of the police to regain entry onto the premises were futile, a circumstance that prompted him to file the urgent application that led to the High Court order now being appealed against.