1
HH 500-15
HC 10743/13
EDWIN GWEZA
versus
SOPHIA ZVIMBA
HIGH COURT OF ZIMBABWE
MATHONSI J
HARARE, 3 June 2015 and 10 June 2015
Opposed Application
K Musimwa, for the applicant
Respondent in person
MATHONSI J: This is the return date of a provisional order granted by this court, per Chatukuta J, on 3 January 2014 in the following:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final order should not be made in the following terms:-
- Pending the final determination in HC 10595/13, the respondent does not unlawfully interfere with applicant’s lawful possession of a Toyota Noah motor vehicle Registration No ACH 8517 brown in colour.
- Applicant be interdicted from disposing of the motor vehicle in question before finalisation in case number HC 10595/13
INTERIM RELIEF GRANTED
- That pending the determination of this matter, the respondent be and is hereby ordered to restore the peaceful and undisturbed possession of a Toyota Noah Motor vehicle Registration No ACH 8517 brown in colour within 48 hours of service of this court order.”
Mr Musimwa for the applicant submitted that despite the existence of a clear and unambiguous court order, the interim effect of which was to restore possession of the motor vehicle to the applicant in this obvious and straight forward case of spoliation, the respondent, who appeared in person, has not complied and the order has not been executed in over 11/2 years. He would want to blame it on the respondent and has asked for costs on the legal practitioner and client scale as a seal of the court’s disapproval of the respondent’s conduct.
In my view the respondent is not singularly to blame for the impasse. The applicant, who had the benefit of legal counsel, should share the blame. Courts of law do not represent litigants. Where they have granted relief, it is for the litigant to enforce it and the rules of court provide for such enforcement. In this case the applicant should have issued a “writ of delivery (1) return of movables alone” in Form No. 39 of the High Court of Zimbabwe Rules, 1971 and instructed the Sheriff to execute the writ. Instead he sat back and folded his arms awaiting the return date only to ask for punitive costs. He cannot get them.
Briefly, the facts as appear from the papers before me are that the respondent pawned her motor vehicle, a Toyota Noah, Registration No ACH 8517 to a pawn broker by the name of Throtex Investments (Pvt) Ltd as security for a loan he took from the latter in February 2013. For whatever reason, most likely the respondent’s failure to repay the loan, the pawn broker instructed a car sales garage called Amotech Car Sales to sell the motor vehicle. The applicant then purchased the vehicle from Amotech Car Sales for $4 000-00 on 27 April 2013 and paid the purchase price in full.
He took possession of the vehicle and did not waste time in converting it to a commuter taxi plying the City to Mount Pleasant route in Harare. On 6 December 2013 the vehicle was being driven by the applicant’s driver Everson Muchacha at NSSA Building along Sam Nujoma Street, Harare on a trip when it was intercepted by the respondent who had hired 2 men. They forcibly took the vehicle without a court order thereby unlawfully dispossessing the applicant, an act of spoliation without doubt.
The applicant launched an urgent application alleging spoliation, seeking to be restored the possession of the motor vehicle. A provisional order was then granted aforesaid, the interim relief of which was to restore possession to the applicant, but it has not been complied with. Thereafter the respondent filed opposition to the confirmation of the provisional order stating that she is the owner of the motor vehicle who did not authorise any car dealer or agent to sell it to anyone. She questioned why the vehicle was sold without her consent and without any court order. For that reason she asserted her right to possession of the vehicle.
In addition, the respondent noted what was clearly a defective appeal to the Supreme Court against the provisional order. She could not appeal against an interlocutory order. She should have anticipated the return date of the provisional order. The appeal has come to naught for want of an inspection of the appeal record.
At the hearing the respondent acknowledged the provisional order, it was in fact granted in her presence, but stated that the vehicle had been given to her at the magistrates court following her arrest. All that is not part of the papers before me.
In my view, the respondent has not advanced any argument as would entitle her to a discharge of the provisional order. The facts are common cause and they point to an act of spoliation. As stated by Reynolds J in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 240 (H) 250 A-D.
“It is a well-recognised principle that in spoliation proceedings it need only to be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing - that spoliatus ante omnia restituendus est (Beukes v Cruns & Another 1975 (4) SA 215 (NC). Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time that a competent court of law assesses the relative merits of the claims of each party. Thus it is my view that the lawfulness or otherwise of the applicant’s possession of the property in question does not fall for consideration at all.”
The applicant was in possession. Before the conflicting claims of the parties could be assessed by a competent court of law, the respondent resorted to self help. That is the kind of dangerous conduct which the law seeks to guard against. Whether the respondent is the owner of the vehicle or not is not the subject of the present inquiry it being enough to prove possession which was forcibly taken away.
I am satisfied that a case has been made for the confirmation of the provisional order.
Accordingly, it is ordered that:
- The provisional order issued on 3 January 2014 is hereby confirmed.
- The respondent shall bear the costs of this application.
Musimwa & Associates, applicant’s legal practitioners