IMPALA ENTERPRISES (PVT) LTD t/a FILIBEG INVESTMENTS (PVT) LTD v TRACY NYATHI a.k.a TRACY MONZEYIWA AND 8 OTHERS (HB 13 of 26) [2026] ZWBHC 5 (2 February 2026)

4 HB 13/26 HCBC 128/26 **IMPALA ENTERPRISES (PVT) LTD t/a FILIBEG INVESTMENTS (PVT) LTD** **versus** **TRACY NYATHI a.k.a TRACY MONZEYIWA** **and** **MTHOKOZISI MOYO** **and** **MUZIKAYISO NDLOVU a.k.a S'DUDLA** **and** **HARREA KHUMALO** **and** **MBONISI TSHUMA** **And** **THABANI TSHUMA** **and** **KHULEKANI NYATHI** **and** **SANTOKOZO NCUBE** **and** **THE OFFICER COMMANDING MATABELELAND SOUTH PROVINCE ZIMBABWE REPUBLIC POLICE** **IN THE HIGH COURT OF ZIMBABWE** **NDUNA J** **BULAWAYO 30 JANUARY & 2 FEBRUARY 2026** _**Urgent Application for Spoliation order and Final Interdict- Virtual**_ _T Matsiye Moyo,_ for the applicant _G Dube,_ for 1st to 9th respondents _Mrs M. M Takaedza,_ for the 10th respondent **NDUNA J** : The requirements to be proven by an applicant relying on the _mandament van spolie_ are well-known. All that the despoiled person needs to prove is that— (a) he/she was in peaceful and undisturbed possession of the property; and (b) he/she was deprived of possession unlawfully, ie forcibly or wrongfully against his consent. The remedy was quite recently discussed in _Ngqukumba v Minister of Safety and Security and Others_ _2014 (7) BCLR 788 (CC) para 10_. The Constitutional Court of South Africa held persuasively that: “The essence of the mandament van spolie is the restoration before all else of unlawfully deprived possession to the possessor. It finds expression in the maxim spoliatus ante omnia restituendus est (the despoiled person must be restored to possession before all else). The spoliation order is meant to prevent the taking of possession otherwise than in accordance with the law. Its underlying philosophy is that no one should resort to self-help to obtain or regain possession. The main purpose of the mandament van spolie is to preserve public order by restraining persons from taking the law into their own hands and by inducing them to follow due process.” The _mandament van spolie_ is an extraordinary and robust remedy. Few defences may be raised and once an applicant has discharged the onus to prove the aforesaid requisites and none of the recognized defences have been raised with success, the court is bound to grant relief, notwithstanding the merits of the dispute between the parties. It is also a speedy remedy and restoration should take place immediately. The _mandament van spolie_ is a possessory remedy which is available to a person whose peaceful possession of a thing has been disturbed. It lies against the person who committed the dispossession. The _mandament_ is not concerned with the underlying rights to claim possession of the property concerned. It seeks only to restore the status quo ante. It does so by mandatory order irrespective of the merits of any underlying dispute regarding the rights of the parties. The essential rationale for the remedy is that the rule of law does not countenance resort to self-help. The case before the court concerns miners. The applicant alleges that he was in peaceful and undisturbed possession or occupation of a mine; namely Kings Riches Mine 3 Registered number 35104, Matopos District. On 26 January 2026, the first Respondent accompanied the rest of the respondent entered the mine claim and with threats of violence managed to take over the said mine. It is clear the entrance by the respondent into the mine is not being disputed and the applicant’s possession of the mine was overcome by the 27th January 2026. The applicant further alleges that its possession of the said mine was therefore unlawfully brought to an end. It must be noted that of the 10 Respondents only the first respondent issued an answer to the claim. He did so by raising points _in limine_. He stated that the applicant has no locus standi in the matter. He further argues that he has attached a defective resolution in the matter. He further alleges that the applicant failed to join the Judicial Manager in the case. What has to be borne in mind is the fact that the applicant is saying he was in possession of the mine which he has been illegally disposed of. And as stated above, there is need for the respondent to pursue his matters legally rather to take the law into his own hands and despoiled the applicant. Observing these issues would defeat the ultimate purpose of a spoliation order; it resists the taking of the law into the own hands of individuals and despoil another of his possession. The spoliation proceedings are aimed at restoration of an applicant’s possession of the very property which he held before the conduct of a respondent. The remedy afforded by the _mandament van spolie,_ expressed in the maxim _spoliatus ante omnia restituendus est_ , is generally granted where one party to a dispute concerning possession of property seizes the property pursuant to what he believes to be his own entitlement thereto. In such cases a court will summarily order return of the property irrespective of either party’s entitlement to possession, and will not entertain argument relating to their respective rights until this has been done. The principle underlying the remedy is that the entitlement to possession must be resolved by the courts, and not by a resort to self-help. By its nature then a spoliation order will usually operate as no more than a preliminary order for restoration of the status quo until the entitlement to possession of the property is determined. The assumption underlying the order is that the property exists and may be awarded in due course to the party who establishes an entitlement thereto. The respondent if he feels that the he has any rights over the property, which are superior to those exercised by the applicant; he must come to court for an appropriate court order. That is when the court may be seized with the issues he raises in his opposing papers. Two requirements must be met in order to obtain the remedy. Firstly, the party seeking the remedy must, at the time of the dispossession, have been in possession of the property. The second is that the dispossessor must have wrongfully deprived them of possession without their consent. The court in _Kama Construction (Pvt) Ltd vs Cold Comfort Farm Co – Operative & Others 1999 (2) ZLR 19 (SC)_, noted and said that; 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) he was in peaceful and undisturbed possession of the thing; and (b) he 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 court went on and stated the defences which may avail a party in spoliation applications. It stated that: 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. A perusal of the record does not find any of the above being pleaded by the Respondent. The law relating to the basis on which a _mandament van spolie_ will be granted is well settled. In _Botha & Anor v Barrett 1996 (2) ZLR 73 (S) at 79-80_, it was said that; ``It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are: (a) that the applicant was in peaceful and undisturbed possession of the property; and (b) that the respondent deprived him of the possession forcibly or wrongfully against his consent. The parties both of them prayed for costs on higher scale in the event the court finding for them. And further it is the finding of this court that the opposition of this matter was ill timed. The general principle governing costs is trite. As stated in Herbstein and Van Winsen, _The Civil Practice of the High Court_ The learned authors Hebstein and Van Winsen in _The Civil Practice of the High Court and the Supreme Court of Appeal of South Africa_ , 5 ed : Vol 2 p 954, stated the following: “The award of costs in a matter is wholly within the discretion of the Court, but this is a judicial discretion and must be exercised on grounds upon which a reasonable person could have come to the conclusion arrived at. The law contemplated that he should take into consideration the circumstances of each case, carefully weighing the various issued in the case, the conduct of the parties and any other circumstances which may have a bearing upon the question of costs and then make such order as to costs as would be fair and just between the parties...” Furthermore according to _Nel_ v _Waterberg Landbouwers Ko-operative Vereeninging_ 1946 AD 597 at 607 a South African authority where his Lordship Tindal JA stated: “The true explanation of awards of attorney and client costs not authorized by statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the courts incase considers it just, by means of such order, to ensure more effective than it can do by means of judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation .” The award of costs must reflect the conduct of the parties. In this matter, the respondents’ conduct clearly justifies an adverse costs order. The respondents forcibly took possession of the mine without any court order. Instead of using lawful processes to assert whatever rights they believed they had, they chose to take the law into their own hands. They entered the mine, chased away the applicant’s workers, and began mining on their own account. This conduct is unlawful and strikes at the very purpose of the spoliation remedy. When the applicant attempted to involve the police, the respondents resisted police intervention and continued mining operations. This shows a deliberate disregard for lawful authority and confirms that the respondents were determined to remain in possession by force rather than by law. The applicant was therefore left with no option but to approach this court for protection. The second to the 9th Respondent did not participate in the proceedings, but were involved in the annexation of the mine in question. It suffices to state that the case deserving of the relief being applied for has been made out and an order must follow to that effect. It is hereby ordered that: 1. The Applicant's application succeeds with costs on a higher scale. 2. First to Eighth Respondents be and are hereby ordered to forthwith restore to the Applicant, undisturbed possession of mining claim registered number 35104 known as Kings Riches 3 together with all the Applicant's plant, equipment and vehicles, failing which the Deputy Sheriff with the assistance of the lawful force of the Ninth Respondent, be and is hereby ordered to evict the First to Eighth Respondents and 3. Their associates, assigns and all those claiming rights after them, from the said mining claim and to further dispossess the said First to Eighth Respondents, of all the plant, equipment and vehicles of the Applicant thereat and to deliver same to the Applicant. First to Eighth Respondents, their associates and or agents, nominees and all those claiming rights after them be and are hereby interdicted from setting foot within a hundred (100) metres of the boundary of Kings Riches 3 mining location registered number 35104, Matopo, Matabeleland South failing which by any; such person shall be arrested for contempt of Court by the Ninth Respondent who shall cause the same to appear before this Honourable Court or other appropriate Court to answer charges of contempt of Court _Masiye-Moyo and Associates_ , for the applicant _Dube Legal Practice_ , for the 1st to 9th respondents