Siganda Mining Syndicate v Tarum Syndicate and others (4 of 2026) [2025] ZWBHC 207 (5 January 2025)

4 HB 04/26 HCBC 1/26 SIGANDA MINING SYNDICATE versus TARUM SYNDICATE AND TICHAONA NIGEL SHAMU AND THE PROVINCIAL MINING DIRECTOR, MAT NORTH N.O AND THE OFFICER IN CHRAGE INYATHI N.O AND THE SHERIFF OF THE HIGH COURT N.O IN THE HIGH COURT OF ZIMBABWE NDUNA J BULAWAYO 5 JANAUARY 2026 Application for a Spoliation order L Chimire, for the applicant T Moyo, for the first and second respondents S Jukwa, for the third and fourth respondents NDUNA J: This is an application for a spoliation order for which the following order is being sought by the applicant: - 1. First and second respondents, all their employees, agents, proxies or representatives be and are hereby ordered to restore possession of the mining claim described as portion of Maitengwe Reselation Area MTN005 Dulutsha, Siganda in Bubi District and all the ore and cash which they removed from the mining claim and vacate the said mining claim within 12 hours granting of this order 2. In the event that 1st and 2nd respondents failed to comply with paragraph 1 of this order, 5th respondent be and is hereby directed and authorised to remove the 1st and 2nd respondents, all their employees, agents, proxies or representatives. from the mining claim described as portion of Maitengwe Reservation Area MTN005 Dulutsha, Siganda in Bubi District and confiscate all the gold ore stolen from the applicant by the 1st and 2nd respondents and restored it back to the applicant. The respondents that is 1st and the 2nd, have pleaded to their claim and they oppose the application. Firstly, a point in limine has been raised against the application. It is to the following effect: - The applicant did not show that it is a registered entity and therefore there is no party before the court The relief sought is incompetent as the applicant seeks to be restored to possession of an area whose co-ordinates have not been disclosed in the litigation That applicant seeks the restoration of ore of no quantity and the order they seek is therefore vague and embarrassing. That the ‘application’ has dispute of facts which could not be dealt with in terms of this application. Before I turn to discuss the substantive defences raised by respondent to applicants’ application for mandament van spolie, it is appropriate, at this stage, to set out the law. The law is succinctly summarised in a passage of the case Scoop Industries (Pty) Ltd v Langlaagte Estate and GM Co Ltd (In Vol Liq) 1948 (1) SA 91 (W) at 9899 as follows: Two factors are requisite to found a claim for an order for restitution of possession on an allegation of spoliation. The first is that applicant was in possession and the second,that he has been wrongfully deprived of that possession and against his wish. It has been laid down that there must be clear proof of possession and of the illicit deprivation before an order should be granted. (See Rieseberg v Rieseberg (1926, WLD 59, at 65).) It must be shown that the applicant had had free and undisturbed possession (Hall v Pitsoane (1911, TPD 853).) When it is shown that there was such possession, which is possession in physical fact and not in the juridical sense, and there has been such deprivation, the applicant has a right to be restored in possession ante omnia. On a claim for such restoration it is not a valid defence to set up a claim on the merits. Nino Bonino v De Lange 1906 TS 120, sets out the principles at 122 as follows: “It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.” In the case of Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-Operative & Ors 1999 (2) ZLR 19 (SC) at p 21 F-H the court commenting on the requirements for obtaining a spoliation order and the defences which can be raised against such an application said; “The relief applied for was in essence a spoliation order. It is trite that in order to obtain a "mandament van spolie" or spoliation order, the applicant must show that: (a) the was in peaceful and undisturbed possession of the thing; and (b) the was unlawfully deprived of such possession. See Joubert Law of South Africa Vol 27 para 78; Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79E-F. The only valid defences that may be raised are that: (a) the applicant was not in peaceful and undisturbed possession of the thing in question at the time of the dispossession; (b) the dispossession was not unlawful and therefore did not constitute spoliation; c) restoration of possession is impossible; (d) the respondent acted within the limits of counter-spoliation in regaining possession of the article.” The question of onus has been set out in Yeko v Qana 1973 (4) SA 735 (A) at 739E as follows: “In order to obtain a spoliation order the onus is on the applicant to prove the required possession, and that he was unlawfully deprived of such possession.” Erasmus on Superior Court Practice at E910 says: ”When an applicant seeks a spoliation order, it is not sufficient for him to make out merely a prima facie case for the order, he must ‘prove the facts necessary to justify a final order – that is, that the things alleged to have been spoliated were in his possession, and that they were removed from his possession forcibly or wrongfully or against his consent’.” Where a final order is sought in an application and there are disputes of fact on the papers, then the matter can be resolved on the facts stated by respondent together with the admitted facts in the applicants’ affidavits. (Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430431; PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634.) In the first paragraph of the Headnote in the case of Nienaber v Stuckey, 1946 AD 1049, the test is set out as follows: “Where the applicant asks for a spoliation order he must make out not only a prima facie case, but must satisfy the Court on the admitted or undisputed facts, by the same balance of probabilities as is required in every civil suit, of the facts necessary for his success in the application.” and lastly in Mutsotso & Ors v Commissioner of Police & Anor 1993 (2) ZLR 329, at 332 H to 333 A-C, the court held “ that the use of the police in the dispossession of the applicants in that case, did not clothe the respondent’s conduct with legality, as dispossession must, be through the due process of the law”. I now address the case before me. The respondent began by raising a number of issues which he wants the court to decide in his favour. In such a situation the court has two obligations; firstly, it ought to decide whether or not each of the alleged events or issues took place as alleged and if it finds that they did, it has then to deicide, whether or not on the basis of the said items, judgment can be passed for the respondent. The court does not need to positively find on all of the issues raised. As regards the points in limine raised, I find all of them not to be available in this case. In Sindikumbuwalo Pacifique v The Commissioner General Department of Customs & Excise HH 123-18, the court pertinently stated: “The question whether or not there is a defendant before the court is a critical point of law. A court cannot proceed to hear any matter on merit unless satisfied that there are parties before it who seek a resolution of a dispute resulting in a competent decision which is binding upon the parties”. It is trite that all parties must, in one form or another, be before the court; failing which the matter ought not to proceed. The respondents contend that the matter must fall on this basis alone. However, in determining this preliminary issue, the court must be alive to the fact that this is an urgent application. The court is enjoined to consider all papers filed of record in order to determine whether the applicant can reasonably be deduced as a party properly before the court. A perusal of the papers clearly demonstrates that the applicant was duly authorised to proceed with mining operations through a cession of rights granted by Alsora. There is no allegation before the court that such cession of mining rights is illegal, invalid, or otherwise defective. In the absence of any such challenge, it cannot be seriously contended that the applicant lacks standing or is not properly before the court. The matter therefore cannot fail on this ground. Furthermore, the law governing applications for a mandament van spolie is clear: a respondent ought not to be permitted to prevail where he has violently and unlawfully acquired purported rights over property. These matters ought not to be approached in an overly theoretical manner. What is apparent from the facts is that the applicant takes issue with his unlawful dispossession from the mine. It is settled law that even a person who may have acquired rights to property improperly cannot be violently ousted therefrom. To uphold the respondents’ point would defeat the very purpose for which spoliation remedies exist. The evidence before the court establishes that the applicant was in peaceful and undisturbed possession of the mine and has since been dispossessed. The first and second respondents, on the other hand, acquired control of the mine through the use of force and unlawful means. It is precisely such conduct that the remedy of spoliation seeks to address. Consequently, the application must succeed on the merits. While it is acknowledged that ore was removed from the mine, the exact quantity thereof cannot be determined with precision at this stage. The court cannot be called upon to make an indefinite or speculative determination in that regard. What suffices for present purposes is that the requirements for a spoliation order have been satisfied. It is therefore ordered First and second respondents, all their employees, agents, proxies or representatives be and are hereby ordered to restore possession of the mining claim described as portion of Maitengwe Reselation Area MTN005 Dulutsha, Siganda in Bubi District and vacate the said mining claim within 72 hours granting of this order In the event that 1st and 2nd respondents failed to comply with paragraph 1 of this order, 5th respondent be and is hereby directed and authorised to remove the 1st and 2nd respondents, all their employees, agents, proxies or representatives from the mining claim described as portion of Maitengwe Reservation Area MTN005 Dulutsha, Siganda in Bubi District. The first and the second respondent to pay costs on ordinary scale. Masawi & Partners, applicant’s legal practitioners Sithole Law Chambers, 1st and 2nd respondents’ legal practitioners Civil Division of the Attorney General, 3rd and 4th respondents’ legal practitioners 4 HB 04/26 HCBC 1/26 4 HB 04/26 HCBC 1/26 SIGANDA MINING SYNDICATE versus TARUM SYNDICATE AND TICHAONA NIGEL SHAMU AND THE PROVINCIAL MINING DIRECTOR, MAT NORTH N.O AND THE OFFICER IN CHRAGE INYATHI N.O AND THE SHERIFF OF THE HIGH COURT N.O IN THE HIGH COURT OF ZIMBABWE NDUNA J BULAWAYO 5 JANAUARY 2026 Application for a Spoliation order L Chimire, for the applicant T Moyo, for the first and second respondents S Jukwa, for the third and fourth respondents NDUNA J: This is an application for a spoliation order for which the following order is being sought by the applicant: - 1. First and second respondents, all their employees, agents, proxies or representatives be and are hereby ordered to restore possession of the mining claim described as portion of Maitengwe Reselation Area MTN005 Dulutsha, Siganda in Bubi District and all the ore and cash which they removed from the mining claim and vacate the said mining claim within 12 hours granting of this order 2. In the event that 1st and 2nd respondents failed to comply with paragraph 1 of this order, 5th respondent be and is hereby directed and authorised to remove the 1st and 2nd respondents, all their employees, agents, proxies or representatives. from the mining claim described as portion of Maitengwe Reservation Area MTN005 Dulutsha, Siganda in Bubi District and confiscate all the gold ore stolen from the applicant by the 1st and 2nd respondents and restored it back to the applicant. The respondents that is 1st and the 2nd, have pleaded to their claim and they oppose the application. Firstly, a point in limine has been raised against the application. It is to the following effect: - The applicant did not show that it is a registered entity and therefore there is no party before the court The relief sought is incompetent as the applicant seeks to be restored to possession of an area whose co-ordinates have not been disclosed in the litigation That applicant seeks the restoration of ore of no quantity and the order they seek is therefore vague and embarrassing. That the ‘application’ has dispute of facts which could not be dealt with in terms of this application. Before I turn to discuss the substantive defences raised by respondent to applicants’ application for mandament van spolie, it is appropriate, at this stage, to set out the law. The law is succinctly summarised in a passage of the case Scoop Industries (Pty) Ltd v Langlaagte Estate and GM Co Ltd (In Vol Liq) 1948 (1) SA 91 (W) at 9899 as follows: Two factors are requisite to found a claim for an order for restitution of possession on an allegation of spoliation. The first is that applicant was in possession and the second,that he has been wrongfully deprived of that possession and against his wish. It has been laid down that there must be clear proof of possession and of the illicit deprivation before an order should be granted. (See Rieseberg v Rieseberg (1926, WLD 59, at 65).) It must be shown that the applicant had had free and undisturbed possession (Hall v Pitsoane (1911, TPD 853).) When it is shown that there was such possession, which is possession in physical fact and not in the juridical sense, and there has been such deprivation, the applicant has a right to be restored in possession ante omnia. On a claim for such restoration it is not a valid defence to set up a claim on the merits. Nino Bonino v De Lange 1906 TS 120, sets out the principles at 122 as follows: “It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.” In the case of Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-Operative & Ors 1999 (2) ZLR 19 (SC) at p 21 F-H the court commenting on the requirements for obtaining a spoliation order and the defences which can be raised against such an application said; “The relief applied for was in essence a spoliation order. It is trite that in order to obtain a "mandament van spolie" or spoliation order, the applicant must show that: (a) the was in peaceful and undisturbed possession of the thing; and (b) the was unlawfully deprived of such possession. See Joubert Law of South Africa Vol 27 para 78; Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79E-F. The only valid defences that may be raised are that: (a) the applicant was not in peaceful and undisturbed possession of the thing in question at the time of the dispossession; (b) the dispossession was not unlawful and therefore did not constitute spoliation; c) restoration of possession is impossible; (d) the respondent acted within the limits of counter-spoliation in regaining possession of the article.” The question of onus has been set out in Yeko v Qana 1973 (4) SA 735 (A) at 739E as follows: “In order to obtain a spoliation order the onus is on the applicant to prove the required possession, and that he was unlawfully deprived of such possession.” Erasmus on Superior Court Practice at E910 says: ”When an applicant seeks a spoliation order, it is not sufficient for him to make out merely a prima facie case for the order, he must ‘prove the facts necessary to justify a final order – that is, that the things alleged to have been spoliated were in his possession, and that they were removed from his possession forcibly or wrongfully or against his consent’.” Where a final order is sought in an application and there are disputes of fact on the papers, then the matter can be resolved on the facts stated by respondent together with the admitted facts in the applicants’ affidavits. (Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 430431; PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634.) In the first paragraph of the Headnote in the case of Nienaber v Stuckey, 1946 AD 1049, the test is set out as follows: “Where the applicant asks for a spoliation order he must make out not only a prima facie case, but must satisfy the Court on the admitted or undisputed facts, by the same balance of probabilities as is required in every civil suit, of the facts necessary for his success in the application.” and lastly in Mutsotso & Ors v Commissioner of Police & Anor 1993 (2) ZLR 329, at 332 H to 333 A-C, the court held “ that the use of the police in the dispossession of the applicants in that case, did not clothe the respondent’s conduct with legality, as dispossession must, be through the due process of the law”. I now address the case before me. The respondent began by raising a number of issues which he wants the court to decide in his favour. In such a situation the court has two obligations; firstly, it ought to decide whether or not each of the alleged events or issues took place as alleged and if it finds that they did, it has then to deicide, whether or not on the basis of the said items, judgment can be passed for the respondent. The court does not need to positively find on all of the issues raised. As regards the points in limine raised, I find all of them not to be available in this case. In Sindikumbuwalo Pacifique v The Commissioner General Department of Customs & Excise HH 123-18, the court pertinently stated: “The question whether or not there is a defendant before the court is a critical point of law. A court cannot proceed to hear any matter on merit unless satisfied that there are parties before it who seek a resolution of a dispute resulting in a competent decision which is binding upon the parties”. It is trite that all parties must, in one form or another, be before the court; failing which the matter ought not to proceed. The respondents contend that the matter must fall on this basis alone. However, in determining this preliminary issue, the court must be alive to the fact that this is an urgent application. The court is enjoined to consider all papers filed of record in order to determine whether the applicant can reasonably be deduced as a party properly before the court. A perusal of the papers clearly demonstrates that the applicant was duly authorised to proceed with mining operations through a cession of rights granted by Alsora. There is no allegation before the court that such cession of mining rights is illegal, invalid, or otherwise defective. In the absence of any such challenge, it cannot be seriously contended that the applicant lacks standing or is not properly before the court. The matter therefore cannot fail on this ground. Furthermore, the law governing applications for a mandament van spolie is clear: a respondent ought not to be permitted to prevail where he has violently and unlawfully acquired purported rights over property. These matters ought not to be approached in an overly theoretical manner. What is apparent from the facts is that the applicant takes issue with his unlawful dispossession from the mine. It is settled law that even a person who may have acquired rights to property improperly cannot be violently ousted therefrom. To uphold the respondents’ point would defeat the very purpose for which spoliation remedies exist. The evidence before the court establishes that the applicant was in peaceful and undisturbed possession of the mine and has since been dispossessed. The first and second respondents, on the other hand, acquired control of the mine through the use of force and unlawful means. It is precisely such conduct that the remedy of spoliation seeks to address. Consequently, the application must succeed on the merits. While it is acknowledged that ore was removed from the mine, the exact quantity thereof cannot be determined with precision at this stage. The court cannot be called upon to make an indefinite or speculative determination in that regard. What suffices for present purposes is that the requirements for a spoliation order have been satisfied. It is therefore ordered First and second respondents, all their employees, agents, proxies or representatives be and are hereby ordered to restore possession of the mining claim described as portion of Maitengwe Reselation Area MTN005 Dulutsha, Siganda in Bubi District and vacate the said mining claim within 72 hours granting of this order In the event that 1st and 2nd respondents failed to comply with paragraph 1 of this order, 5th respondent be and is hereby directed and authorised to remove the 1st and 2nd respondents, all their employees, agents, proxies or representatives from the mining claim described as portion of Maitengwe Reservation Area MTN005 Dulutsha, Siganda in Bubi District. The first and the second respondent to pay costs on ordinary scale. Masawi & Partners, applicant’s legal practitioners Sithole Law Chambers, 1st and 2nd respondents’ legal practitioners Civil Division of the Attorney General, 3rd and 4th respondents’ legal practitioners