MAPURANGA v SHAMBAWETA and Another (107 of 2025) [2025] ZWHHC 107 (20 February 2025)

4 HH 107 - 25 HCH 447/25 ARTHUR MAPURANGA versus SHAMISO SHAMBAWETA and THE PROVINCIAL MINING DIRECTOR MASHONALAND CENTRAL HIGH COURT OF ZIMBABWE DUBE-BANDA J HARARE; 11 February 2025 & 20 February 2025 Application for a spoliation order M. Ndlovu, for the applicant A. Langeveldt, for the respondent DUBE-BANDA J: The court is seized with an application brought on urgency for spoliation order. The applicant seeks the following relief: That the first respondent, her agents, proxies and assignees be and are hereby ordered to restore forthwith to the applicant possession of Mzirodzi B registration number 46528.The first respondent, her agents and assignees be and are hereby ordered to forthwith vacate Mzirodzi B registration number 46528 upon being served with this court order.In the event that the first respondent resists to comply, the third respondent or any of his lawful assistants or subordinates, be and are hereby ordered to render assistance to the applicant, in enforcing the terms of clause (1) and (2) of this order.Costs of suits shall be borne at Attorney-client scale by such party or parties who opposes this application, jointly and severally the one paying the others being absolved. The application is opposed by the first respondent. FACTUAL BACKGROUND This case will be better understood from the following background facts. A mine known as Mzirodzi B, Registration No. 46528 located in Concession, Axen Farm 40km North East of Spot Height A155 (“the mine”) is at the heart of the dispute between the applicant and the first respondent. The mine is located at a farm in which the first respondent resides. It appears that the mine was owned by the late Tellmore Shambawata, (“the deceased”) first respondent’s father. The papers seem to suggest that Matilda Sande (“Sande”) was either married or in a relationship with the deceased. What is clear though is that she had children with the deceased. On 3 January 2024 Sande entered into an agreement of sale with the applicant in which she sold the mine for US$18 000.00. The purchase price was paid in full to Sande. The facts show the Shambawate family is contesting the Sande’s right to sell the mine, and is refusing to recognise the sale. It is against this background that the applicant launched this application seeking the order stated above. THE APPLICANT’S CASE The applicant avers that on 3 January 2024, he entered into an agreement of sale with one Matilda Sande in which he purchased the mine, and paid the full purchase price in the sum of US$18 000.00 and was given vacant possession. He claims that ever since the date of the agreement, he has been making periodic visits to the mine, conducting exploration and taking samples to determine how to proceed with mining operations. The applicant avers further that since 3 January 2024 he has been in peaceful and undisturbed legal occupation and possession of the mine. The applicant further alleges that on 23 January 2023, he visited the mine with the intention to commence mining operations and found illegal gold miners working at the mine. The persons were not known to him, neither did they have his permission nor consent to work on the mine. The applicant contends that he discovered that the illegal miners were working with the blessing of the first respondent. The first respondent is alleged to have indicated that she did not recognise the sale agreement between the applicant and Sande. She is alleged to have threatened acts of violence against the applicant and his associates if they persisted entering and working on the mine. The applicant contends further that since January 2024, no court order for his eviction was obtained by the first respondent, neither did the Provincial Mining Director (“PMD”) grant any order for his eviction or removal from the mine. Further, he insists that he has no pending mining dispute with the first respondent. He asserts that he was in peaceful and undisturbed possession of the mine until the time when he was removed by the first respondent with the aid of her employees or associates.In her supporting affidavit, Sande avers that around December 2023 the applicant approached her with an intention of buying the mine. She avers that she and the applicant went to the mine and the agreed on the purchase price. On 3 January 2024, the applicant paid the purchase price in the sum of USD$18 000.00 and was given vacant possession of the mine. The applicant sought that the application be granted in terms of the draft. FIRST RESPONDENT’S CASE In her opposing affidavit, the first respondent avers that sometime in January 2024 Sande came to the mine in the company of four male persons and one female person. She saw them roaming around the mine and it seemed like they were showing each other boundaries. Sande then informed her that she sold the mine to the applicant. She asserts that she did not agree and protested the sale of the mine. She contends that at some point there were some negotiations to work together with the applicant, however no agreement was reached. She contends further that on some two occasions the applicant visited the mine either in person or through a third party, until on 23 January 2025 when applicant and others arrived at the mine in two vehicles and started roaming around with a gold detector. She avers that she approached them and ordered them out of her “father's property.” They were told to leave with immediate effect and they left. There was no act of violence.The applicant avers that Sande has no right or title to the mine, therefore she could not have sold it to the applicant. It is further contended that the applicant could not have been given vacant peaceful possession of the mine because she and her workers were present at the mine before January 2023 to date. It is disputed that the applicant was in peaceful possession of the mine. It was argued that the taking of samples does not establish possession or show the intention to take possession. It was argued further that there was neither takeover nor force of any form employed as the first respondent was already in lawful possession of the mine at the time when she encountered the applicant.Trust Shambawate deposed to a supporting affidavit. His evidence is that he is a brother to the first respondent and a son to Sande. He was present when applicant’s brother visited the mine in January 2024 and there was no violence. He avers further that he has always told Sande that he objected to the sale of the mine as it belonged to the Shambawate family. He maintains that Sande sold the mine without the approval of the family. He asserts further that the first respondent, her husband and himself have been running the mine since 2023 to date. They have been purchasing machinery, paying salaries for the employees and other operational costs. He disputes that the applicant has ever been in occupation of the mine. Vharani Bonface also deposed to a supporting affidavit. His evidence is that he is currently employed at the mine by Trust Shambawate and the first respondent. He has been employed since the beginning of 2023 and his employers have been the ones in charge of operations. He maintains that the applicant attempted to visit the mine a few times to which there was an objection, the last day being sometime in January 2025. Freddy Shambawate also deposed to a supporting affidavit. He is a brother to the deceased. He asserts that Sande sold the mine to the applicant without permission. She had no right to sell the mine as she was not married to the late Tellmore Shambawate. The first respondent sought that the application be dismissed with costs. POINTS IN LIMINE Other than resisting the relief sought on the merits, the first respondent took a point in limine attacking the urgency of the matter. At the commencement of the hearing, I informed counsel that I shall adopt a holistic approach, which entails hearing both the preliminary objection and the merits of the matter, with a rider that when the court retires to consider the matter, it may dispose of the matter solely on preliminary objection despite the fact that it was argued together with the merits. But if the court dismisses the preliminary objection, it then proceeds to deal with the merits. I now turn to consider whether the matter passes the test of urgency. URGENCY The applicant in an urgent application must satisfy the requirements of urgency set out in the jurisprudence developed by the superior courts. Urgent applications are not for the asking as they interfere with the normal orderly arrangement of court rolls and get prioritized over already scheduled matters. They enjoy an unfair advantage over other matters on the roll, which is the reason a closer scrutiny by the court is required to determine whether indeed the matter passes the test of urgency. See Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H); Documents Support Centre P/L v Mapuvire 2006 (2) ZLR 240 at 244 C; Gwarada v Johnson 2009 (2) ZLR 159. The first respondent argued that this matter does not pass the test of urgency. Mr Langeveldt submitted that the applicant first encountered the first respondent and her agents in January 2024 a period of twelve months to the date of filing this application. Counsel argued that this indicates that the applicant did not act when the need to act arose. Counsel urged this court to uphold the preliminary objection and strike the application off the roll of urgent matters. Per contra, Mr Ndlovu counsel for the applicant submitted that there was no delay in filing this application. Further, counsel submitted that a spoliation matter, is by its nature urgent, and this application must be treated as urgent by this court. In the certificate of urgency it was contended that on 23 January 2025 the applicant visited the mine with intention to commence mining operations and found individuals working on the mine. The individuals were working on the mine on the back of a blessings and instructions of the first respondent. It was contended further that the applicant was chased away and denied access to the mine. According to the certificate of urgency the cause of action arose on 23 January 2025, and this application in turn was filed on 1 February 2025. I take the view that the certificate of urgency indicates that the matter is urgent. In addition, in Karori (Private) Limited & Anor v Mujaji HH 23/2007 the court said: “I also find that an application for spoliation is urgent by its very nature. It exists to preserve law and order and to stop and reverse self- help in the resolution of disputes between parties. Its primary aim is to restore the status quo ante. See Chisveto v Minister of Local Government & Town Planning 1984 (1) ZLR 248 9H) at 250C.” On the facts of this case, and this being an application for a spoliation order, I find that it is urgent and deserves a hearing on the roll of urgent matters. See Chiwenga v Mubaiwa 2020 (1) ZLR 1360 (S) at 1365 E-F. In any event, a finding that the matter is urgent has no bearing on the merits of the application. All it does is to allow a litigant to jump the queue and have his or her matter heard ahead of other matters on the roll. See Chiwenga v Mubaiwa 2020 (1) ZLR 1360 (S) at 1365 F-G. It is for these reasons that the point in limine attacking the urgency of the matter has no merit and is refused. MERITS This is an application for mandament van spolie. The applicant must prove on a balance of probabilities that the first respondent committed an act of spoliation against him. In Karori (Private) Limited & Anor v Mujaji HH 23/2007 the court said spoliation in both form and substance, is final. It is not temporary in nature and the despoiled must discharge the onus on it on a balance of probabilities. In Nienaber v Stuckey 1946 AD 1049 at 1053-4 the court observed that: “Although a spoliation order does not decide what, apart from possession, the rights of the parties to the property spoliated were before the act of spoliation and merely orders the status quo be restored, it is to that extend a final order and the same amount of proof is required as for the granting of a final interdict, and not a temporary interdict;……………At this stage it is sufficient to say that the appellant 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 his application.” In order for the applicant to obtain spoliatory remedy it was stated in Kramer v Trustees Christian Coloured Vigilance council, Grassy Park 1948(1) SA 748 (C), at 753 that: “… two allegations must be made and proved, namely, (a) that applicant was in peaceful and undisturbed possession of the property, (b) that the respondent deprived him of the possession forcibly or wrongfully against his consent.” In Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230(E), at 233 the court observed that: “….. it is not necessary that the possession be continuous, either by the claimant or his servants, if the nature of the operations which he conducts on the premises do not require his continuous presence.” See Davis v Davis 1990 (2) ZLR 136 (HC); Botha & Anor v Barret 1996 (2) ZLR 73 (S). The first question for determination is whether the applicant was in peaceful and undisturbed possession of the mine? In his founding affidavit the applicant asserts that after payment of the full purchase price, he was given vacant possession of the mine. It is imperative therefore, to determine when the purchase price was paid and when, if correct, he was given the vacant possession of the mine. According to the applicant, the purchase price was paid on 3 January 2024, which according to his version must be the date he was given vacant possession of the mine. In her supporting affidavit, Sande confirms that the purchase price was paid on 3 January 2024, and it was the date she alleges she gave the applicant vacant possession of the mine. The applicant attached to his application an affidavit in long-hand deposed to by Sande, and she confirms in her supporting affidavit that indeed she deposed to the long-hand affidavit. In the long-hand affidavit Sande avers that on 27 December 2023 she sold the mine to the applicant for USD$18 000.00, and the purchase price was paid in full. This affidavit has two dates, i.e., it appears to have been signed by the deponent on 3 January 2023, and date stamped by the Commissioner of Oaths on 3 January 2024. A closer scrutiny of the long-hand affidavit suggests that payment must have been made on 27 December 2023. This is at variance with applicant’s case that payment was made on 3 January 2024. In addition, Sande could not have signed the long-hand affidavit on 3 January 2023 speaking to the events of 27 December 2023. It is important that litigants pay attention to detail, and most important a party that bears the onus must ensure that it adduces evidence that is clear and supports it version. This does not appear to me to be the case with regards to the date of payment, which obviously has a bearing on the date applicant is alleged to have taken possession of the mine. In paragraphs 10 and 11 of the founding affidavit the applicant avers that he took occupation of the mine on 3 January 2024. Thereafter he made periodic visits to the mine conducting exploration and taking samples to determine how to proceed with mining operations. He alleges that he never encountered anyone claiming occupation of the mine. In contrast, in paragraph 13 of the same founding affidavit, he contends that on 23 January 2023 he visited the mine with the intention to commerce mining operations and found illegal gold miners working at the mine. The applicant’s version is incongruent, in that on one hand, he alleges that he took occupation of the mine on 3 January 2024, and on the hand, he alleges that on 23 January 2023 he visited the mine with the intention of commence mining operations and found illegal gold miners working at the mine. In paragraph 4 and 5 of the certificate of urgency, he insists that this incident occurred on 23 January 2025. The date he is supposed to have taken occupation of the mine is unclear. These variations cast doubt in the applicant’s version. In addition, what is conspicuous about the applicant’s version is that he merely asserts that he made period visits to the mine conducting exploration and taking samples, apart from his ipse dixit there is no supporting affidavit from the companies or individuals tasked with the exploration and the taking of samples. Not even some documents to shed light on what the exploration and taking of samples entailed and the outcome of that process. A party bearing an onus must adduce sufficient evidence to persuade the court that its version is plausible. Not just to take a lackadaisical approach to the matter. The applicant’s version must be juxtaposed with that of the first respondent. The first respondent disputes that the applicant ever took occupation of the mine. Her version is that sometime in January 2024 Sande came to the mine in the company of four male persons and one female person. There was a discussion which appears not to have ended well, and Sande and her group got into their vehicle and left the mine. About two weeks later the same vehicle returned now with one male person called Samuel, the applicant’s brother-in-law and associate. Samuel is alleged to have been informed that the first respondent was working on the mine and would not stop. After a period of two weeks this Samuel organised a meeting at Glendale, the respondent who was in the company of her husband was offered a joint venture at the mine with her holding a 10% stake. The first respondent rejected the offer. The applicant is alleged to have visited the mine on three other occasions, and on each occasion, he was requested to leave the mine. On 23 January 2025 the applicant in the company of other people arrived at the mine and started roaming around with a gold detector. The first respondent approached them and requested them to leave and they left the mine. Further the first respondent contended that the applicant could not have assumed possession of the mine as she and her workers were present at the mine before January 2023 to date. The first respondent filed supporting affidavits which corroborates her version that she and her workers had always been working at the mine, and that the applicant never had possession of the mine.The two versions are mutually destructive. In such a case where the opposing affidavit provides a version that is destructive of the factual averments the applicants anchor his or her case on, the rules provide such an applicant with a window to try and resuscitate or give life to his or her version through the filing of an answering affidavit. The applicant has not taken advantage of this procedural devise to dispute and controvert the first respondent’s version. In Loveness Sengeredo v Eric Cable N.O. HH 32/08 at p 2 of the cyclostyled judgment the court said: “In my view, the purpose of an answering affidavit is akin to that of a replication in an action. It is filed not merely for the form but to specifically meet and traverse all the averments made in the opposing affidavit that have the effect of defeating the applicant’s claim. Like in any pleading filed with the Court, all issues that are not specifically denied and traversed in the answering affidavit are to be taken as if they have been admitted… It is my further view that answering affidavits, like all other affidavits, must be drafted with precision and must meet the sting of the defence being raised in the opposing affidavit” The applicant’s version is itself inconsistent. In addition, the first respondent’s version is that the applicant was never in peaceful and undisturbed occupation of the mine. This version is unchallenged and uncontroverted. In addition, in Plascon – Evans Paint Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623(A) 634-635, the rule was established that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, farfetched and so clearly untenable that the court is justified in rejecting them merely on the papers. In casu, the facts averred by the applicant are disputed by the first respondent. It cannot be said that the first respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, farfetched and so clearly untenable that the court is justified in rejecting them merely on the papers. The first respondent’s version that the applicant was never in possession of the mine has not been controverted. For completeness, I have to state that this case is distinguishable from Moyo v Blanket Mine (1983) Private Limited & Ors SC 87/22 relied on Mr Ndlovu counsel for the applicant. In Moyo the court said: “In casu, it is common cause that the first respondent had physically occupied the mine shortly before the dispute arose. Further, despite the fact that it had ceased physical occupation for the reasons already stated, it retained the intention to resume such occupation and benefit from the mine. The appellants took advantage of this temporary cessation of mining activities by the first respondent, to itself take possession of the mine in issue. Significantly the appellants have not disputed the fact that the first respondent fully intended to come back and resume operations on the mining claim once the results of the valuation were received.” In this case the applicant did not physically occupy the mine. He visited the mine on some occasions; however, those visits were met with resistance from the first respondent. The law requires that the occupation must be peaceful and undisturbed. In this case those few visits admitted by the first respondent could not be said to have been peaceful and undisturbed. In addition, those visits could not be said to show that the applicant occupied the mine. He did not. His visits to the mine faced so much resistance and he was requested to leave the mine. On the facts of this case, it cannot be said he was ever in occupation of the mine, let alone peaceful and undisturbed occupation. The applicant has not discharged the onus on a balance of probabilities that he was in peaceful and undisturbed possession of the mine. In other words, he has not satisfied the court that that he is entitled to succeed on his claim. See Pillay v Krishma 1946 AD 946 at 952-3. He failed to establish the necessary requirement for a spoliation order; that he was in peaceful and undisturbed possession of the mine. In the circumstances, this application is ill-conceived and must fail. There remains to be considered the question of costs. No good grounds exist for a departure from the general rule that costs follow the event. The first respondent is clearly entitled to her costs. In the circumstances, this application is ill-conceived and has no merit. It is accordingly dismissed with costs. Dube Banda J: ……………………………………………… Chitsa & Masvaya Law Chambers, applicant's legal practitioners Gumbo and Associates, 1st respondent’s legal practitioners 4 HH 107 - 25 HCH 447/25 4 HH 107 - 25 HCH 447/25 ARTHUR MAPURANGA versus SHAMISO SHAMBAWETA and THE PROVINCIAL MINING DIRECTOR MASHONALAND CENTRAL HIGH COURT OF ZIMBABWE DUBE-BANDA J HARARE; 11 February 2025 & 20 February 2025 Application for a spoliation order M. Ndlovu, for the applicant A. Langeveldt, for the respondent DUBE-BANDA J: The court is seized with an application brought on urgency for spoliation order. The applicant seeks the following relief: That the first respondent, her agents, proxies and assignees be and are hereby ordered to restore forthwith to the applicant possession of Mzirodzi B registration number 46528. The first respondent, her agents and assignees be and are hereby ordered to forthwith vacate Mzirodzi B registration number 46528 upon being served with this court order. In the event that the first respondent resists to comply, the third respondent or any of his lawful assistants or subordinates, be and are hereby ordered to render assistance to the applicant, in enforcing the terms of clause (1) and (2) of this order. Costs of suits shall be borne at Attorney-client scale by such party or parties who opposes this application, jointly and severally the one paying the others being absolved. The application is opposed by the first respondent. FACTUAL BACKGROUND This case will be better understood from the following background facts. A mine known as Mzirodzi B, Registration No. 46528 located in Concession, Axen Farm 40km North East of Spot Height A155 (“the mine”) is at the heart of the dispute between the applicant and the first respondent. The mine is located at a farm in which the first respondent resides. It appears that the mine was owned by the late Tellmore Shambawata, (“the deceased”) first respondent’s father. The papers seem to suggest that Matilda Sande (“Sande”) was either married or in a relationship with the deceased. What is clear though is that she had children with the deceased. On 3 January 2024 Sande entered into an agreement of sale with the applicant in which she sold the mine for US$18 000.00. The purchase price was paid in full to Sande. The facts show the Shambawate family is contesting the Sande’s right to sell the mine, and is refusing to recognise the sale. It is against this background that the applicant launched this application seeking the order stated above. THE APPLICANT’S CASE The applicant avers that on 3 January 2024, he entered into an agreement of sale with one Matilda Sande in which he purchased the mine, and paid the full purchase price in the sum of US$18 000.00 and was given vacant possession. He claims that ever since the date of the agreement, he has been making periodic visits to the mine, conducting exploration and taking samples to determine how to proceed with mining operations. The applicant avers further that since 3 January 2024 he has been in peaceful and undisturbed legal occupation and possession of the mine. The applicant further alleges that on 23 January 2023, he visited the mine with the intention to commence mining operations and found illegal gold miners working at the mine. The persons were not known to him, neither did they have his permission nor consent to work on the mine. The applicant contends that he discovered that the illegal miners were working with the blessing of the first respondent. The first respondent is alleged to have indicated that she did not recognise the sale agreement between the applicant and Sande. She is alleged to have threatened acts of violence against the applicant and his associates if they persisted entering and working on the mine. The applicant contends further that since January 2024, no court order for his eviction was obtained by the first respondent, neither did the Provincial Mining Director (“PMD”) grant any order for his eviction or removal from the mine. Further, he insists that he has no pending mining dispute with the first respondent. He asserts that he was in peaceful and undisturbed possession of the mine until the time when he was removed by the first respondent with the aid of her employees or associates. In her supporting affidavit, Sande avers that around December 2023 the applicant approached her with an intention of buying the mine. She avers that she and the applicant went to the mine and the agreed on the purchase price. On 3 January 2024, the applicant paid the purchase price in the sum of USD$18 000.00 and was given vacant possession of the mine. The applicant sought that the application be granted in terms of the draft. FIRST RESPONDENT’S CASE In her opposing affidavit, the first respondent avers that sometime in January 2024 Sande came to the mine in the company of four male persons and one female person. She saw them roaming around the mine and it seemed like they were showing each other boundaries. Sande then informed her that she sold the mine to the applicant. She asserts that she did not agree and protested the sale of the mine. She contends that at some point there were some negotiations to work together with the applicant, however no agreement was reached. She contends further that on some two occasions the applicant visited the mine either in person or through a third party, until on 23 January 2025 when applicant and others arrived at the mine in two vehicles and started roaming around with a gold detector. She avers that she approached them and ordered them out of her “father's property.” They were told to leave with immediate effect and they left. There was no act of violence. The applicant avers that Sande has no right or title to the mine, therefore she could not have sold it to the applicant. It is further contended that the applicant could not have been given vacant peaceful possession of the mine because she and her workers were present at the mine before January 2023 to date. It is disputed that the applicant was in peaceful possession of the mine. It was argued that the taking of samples does not establish possession or show the intention to take possession. It was argued further that there was neither takeover nor force of any form employed as the first respondent was already in lawful possession of the mine at the time when she encountered the applicant. Trust Shambawate deposed to a supporting affidavit. His evidence is that he is a brother to the first respondent and a son to Sande. He was present when applicant’s brother visited the mine in January 2024 and there was no violence. He avers further that he has always told Sande that he objected to the sale of the mine as it belonged to the Shambawate family. He maintains that Sande sold the mine without the approval of the family. He asserts further that the first respondent, her husband and himself have been running the mine since 2023 to date. They have been purchasing machinery, paying salaries for the employees and other operational costs. He disputes that the applicant has ever been in occupation of the mine. Vharani Bonface also deposed to a supporting affidavit. His evidence is that he is currently employed at the mine by Trust Shambawate and the first respondent. He has been employed since the beginning of 2023 and his employers have been the ones in charge of operations. He maintains that the applicant attempted to visit the mine a few times to which there was an objection, the last day being sometime in January 2025. Freddy Shambawate also deposed to a supporting affidavit. He is a brother to the deceased. He asserts that Sande sold the mine to the applicant without permission. She had no right to sell the mine as she was not married to the late Tellmore Shambawate. The first respondent sought that the application be dismissed with costs. POINTS IN LIMINE Other than resisting the relief sought on the merits, the first respondent took a point in limine attacking the urgency of the matter. At the commencement of the hearing, I informed counsel that I shall adopt a holistic approach, which entails hearing both the preliminary objection and the merits of the matter, with a rider that when the court retires to consider the matter, it may dispose of the matter solely on preliminary objection despite the fact that it was argued together with the merits. But if the court dismisses the preliminary objection, it then proceeds to deal with the merits. I now turn to consider whether the matter passes the test of urgency. URGENCY The applicant in an urgent application must satisfy the requirements of urgency set out in the jurisprudence developed by the superior courts. Urgent applications are not for the asking as they interfere with the normal orderly arrangement of court rolls and get prioritized over already scheduled matters. They enjoy an unfair advantage over other matters on the roll, which is the reason a closer scrutiny by the court is required to determine whether indeed the matter passes the test of urgency. See Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H); Documents Support Centre P/L v Mapuvire 2006 (2) ZLR 240 at 244 C; Gwarada v Johnson 2009 (2) ZLR 159. The first respondent argued that this matter does not pass the test of urgency. Mr Langeveldt submitted that the applicant first encountered the first respondent and her agents in January 2024 a period of twelve months to the date of filing this application. Counsel argued that this indicates that the applicant did not act when the need to act arose. Counsel urged this court to uphold the preliminary objection and strike the application off the roll of urgent matters. Per contra, Mr Ndlovu counsel for the applicant submitted that there was no delay in filing this application. Further, counsel submitted that a spoliation matter, is by its nature urgent, and this application must be treated as urgent by this court. In the certificate of urgency it was contended that on 23 January 2025 the applicant visited the mine with intention to commence mining operations and found individuals working on the mine. The individuals were working on the mine on the back of a blessings and instructions of the first respondent. It was contended further that the applicant was chased away and denied access to the mine. According to the certificate of urgency the cause of action arose on 23 January 2025, and this application in turn was filed on 1 February 2025. I take the view that the certificate of urgency indicates that the matter is urgent. In addition, in Karori (Private) Limited & Anor v Mujaji HH 23/2007 the court said: “I also find that an application for spoliation is urgent by its very nature. It exists to preserve law and order and to stop and reverse self- help in the resolution of disputes between parties. Its primary aim is to restore the status quo ante. See Chisveto v Minister of Local Government & Town Planning 1984 (1) ZLR 248 9H) at 250C.” On the facts of this case, and this being an application for a spoliation order, I find that it is urgent and deserves a hearing on the roll of urgent matters. See Chiwenga v Mubaiwa 2020 (1) ZLR 1360 (S) at 1365 E-F. In any event, a finding that the matter is urgent has no bearing on the merits of the application. All it does is to allow a litigant to jump the queue and have his or her matter heard ahead of other matters on the roll. See Chiwenga v Mubaiwa 2020 (1) ZLR 1360 (S) at 1365 F-G. It is for these reasons that the point in limine attacking the urgency of the matter has no merit and is refused. MERITS This is an application for mandament van spolie. The applicant must prove on a balance of probabilities that the first respondent committed an act of spoliation against him. In Karori (Private) Limited & Anor v Mujaji HH 23/2007 the court said spoliation in both form and substance, is final. It is not temporary in nature and the despoiled must discharge the onus on it on a balance of probabilities. In Nienaber v Stuckey 1946 AD 1049 at 1053-4 the court observed that: “Although a spoliation order does not decide what, apart from possession, the rights of the parties to the property spoliated were before the act of spoliation and merely orders the status quo be restored, it is to that extend a final order and the same amount of proof is required as for the granting of a final interdict, and not a temporary interdict;……………At this stage it is sufficient to say that the appellant 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 his application.” In order for the applicant to obtain spoliatory remedy it was stated in Kramer v Trustees Christian Coloured Vigilance council, Grassy Park 1948(1) SA 748 (C), at 753 that: “… two allegations must be made and proved, namely, (a) that applicant was in peaceful and undisturbed possession of the property, (b) that the respondent deprived him of the possession forcibly or wrongfully against his consent.” In Bennett Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230(E), at 233 the court observed that: “….. it is not necessary that the possession be continuous, either by the claimant or his servants, if the nature of the operations which he conducts on the premises do not require his continuous presence.” See Davis v Davis 1990 (2) ZLR 136 (HC); Botha & Anor v Barret 1996 (2) ZLR 73 (S). The first question for determination is whether the applicant was in peaceful and undisturbed possession of the mine? In his founding affidavit the applicant asserts that after payment of the full purchase price, he was given vacant possession of the mine. It is imperative therefore, to determine when the purchase price was paid and when, if correct, he was given the vacant possession of the mine. According to the applicant, the purchase price was paid on 3 January 2024, which according to his version must be the date he was given vacant possession of the mine. In her supporting affidavit, Sande confirms that the purchase price was paid on 3 January 2024, and it was the date she alleges she gave the applicant vacant possession of the mine. The applicant attached to his application an affidavit in long-hand deposed to by Sande, and she confirms in her supporting affidavit that indeed she deposed to the long-hand affidavit. In the long-hand affidavit Sande avers that on 27 December 2023 she sold the mine to the applicant for USD$18 000.00, and the purchase price was paid in full. This affidavit has two dates, i.e., it appears to have been signed by the deponent on 3 January 2023, and date stamped by the Commissioner of Oaths on 3 January 2024. A closer scrutiny of the long-hand affidavit suggests that payment must have been made on 27 December 2023. This is at variance with applicant’s case that payment was made on 3 January 2024. In addition, Sande could not have signed the long-hand affidavit on 3 January 2023 speaking to the events of 27 December 2023. It is important that litigants pay attention to detail, and most important a party that bears the onus must ensure that it adduces evidence that is clear and supports it version. This does not appear to me to be the case with regards to the date of payment, which obviously has a bearing on the date applicant is alleged to have taken possession of the mine. In paragraphs 10 and 11 of the founding affidavit the applicant avers that he took occupation of the mine on 3 January 2024. Thereafter he made periodic visits to the mine conducting exploration and taking samples to determine how to proceed with mining operations. He alleges that he never encountered anyone claiming occupation of the mine. In contrast, in paragraph 13 of the same founding affidavit, he contends that on 23 January 2023 he visited the mine with the intention to commerce mining operations and found illegal gold miners working at the mine. The applicant’s version is incongruent, in that on one hand, he alleges that he took occupation of the mine on 3 January 2024, and on the hand, he alleges that on 23 January 2023 he visited the mine with the intention of commence mining operations and found illegal gold miners working at the mine. In paragraph 4 and 5 of the certificate of urgency, he insists that this incident occurred on 23 January 2025. The date he is supposed to have taken occupation of the mine is unclear. These variations cast doubt in the applicant’s version. In addition, what is conspicuous about the applicant’s version is that he merely asserts that he made period visits to the mine conducting exploration and taking samples, apart from his ipse dixit there is no supporting affidavit from the companies or individuals tasked with the exploration and the taking of samples. Not even some documents to shed light on what the exploration and taking of samples entailed and the outcome of that process. A party bearing an onus must adduce sufficient evidence to persuade the court that its version is plausible. Not just to take a lackadaisical approach to the matter. The applicant’s version must be juxtaposed with that of the first respondent. The first respondent disputes that the applicant ever took occupation of the mine. Her version is that sometime in January 2024 Sande came to the mine in the company of four male persons and one female person. There was a discussion which appears not to have ended well, and Sande and her group got into their vehicle and left the mine. About two weeks later the same vehicle returned now with one male person called Samuel, the applicant’s brother-in-law and associate. Samuel is alleged to have been informed that the first respondent was working on the mine and would not stop. After a period of two weeks this Samuel organised a meeting at Glendale, the respondent who was in the company of her husband was offered a joint venture at the mine with her holding a 10% stake. The first respondent rejected the offer. The applicant is alleged to have visited the mine on three other occasions, and on each occasion, he was requested to leave the mine. On 23 January 2025 the applicant in the company of other people arrived at the mine and started roaming around with a gold detector. The first respondent approached them and requested them to leave and they left the mine. Further the first respondent contended that the applicant could not have assumed possession of the mine as she and her workers were present at the mine before January 2023 to date. The first respondent filed supporting affidavits which corroborates her version that she and her workers had always been working at the mine, and that the applicant never had possession of the mine. The two versions are mutually destructive. In such a case where the opposing affidavit provides a version that is destructive of the factual averments the applicants anchor his or her case on, the rules provide such an applicant with a window to try and resuscitate or give life to his or her version through the filing of an answering affidavit. The applicant has not taken advantage of this procedural devise to dispute and controvert the first respondent’s version. In Loveness Sengeredo v Eric Cable N.O. HH 32/08 at p 2 of the cyclostyled judgment the court said: “In my view, the purpose of an answering affidavit is akin to that of a replication in an action. It is filed not merely for the form but to specifically meet and traverse all the averments made in the opposing affidavit that have the effect of defeating the applicant’s claim. Like in any pleading filed with the Court, all issues that are not specifically denied and traversed in the answering affidavit are to be taken as if they have been admitted… It is my further view that answering affidavits, like all other affidavits, must be drafted with precision and must meet the sting of the defence being raised in the opposing affidavit” The applicant’s version is itself inconsistent. In addition, the first respondent’s version is that the applicant was never in peaceful and undisturbed occupation of the mine. This version is unchallenged and uncontroverted. In addition, in Plascon – Evans Paint Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623(A) 634-635, the rule was established that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, farfetched and so clearly untenable that the court is justified in rejecting them merely on the papers. In casu, the facts averred by the applicant are disputed by the first respondent. It cannot be said that the first respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, farfetched and so clearly untenable that the court is justified in rejecting them merely on the papers. The first respondent’s version that the applicant was never in possession of the mine has not been controverted. For completeness, I have to state that this case is distinguishable from Moyo v Blanket Mine (1983) Private Limited & Ors SC 87/22 relied on Mr Ndlovu counsel for the applicant. In Moyo the court said: “In casu, it is common cause that the first respondent had physically occupied the mine shortly before the dispute arose. Further, despite the fact that it had ceased physical occupation for the reasons already stated, it retained the intention to resume such occupation and benefit from the mine. The appellants took advantage of this temporary cessation of mining activities by the first respondent, to itself take possession of the mine in issue. Significantly the appellants have not disputed the fact that the first respondent fully intended to come back and resume operations on the mining claim once the results of the valuation were received.” In this case the applicant did not physically occupy the mine. He visited the mine on some occasions; however, those visits were met with resistance from the first respondent. The law requires that the occupation must be peaceful and undisturbed. In this case those few visits admitted by the first respondent could not be said to have been peaceful and undisturbed. In addition, those visits could not be said to show that the applicant occupied the mine. He did not. His visits to the mine faced so much resistance and he was requested to leave the mine. On the facts of this case, it cannot be said he was ever in occupation of the mine, let alone peaceful and undisturbed occupation. The applicant has not discharged the onus on a balance of probabilities that he was in peaceful and undisturbed possession of the mine. In other words, he has not satisfied the court that that he is entitled to succeed on his claim. See Pillay v Krishma 1946 AD 946 at 952-3. He failed to establish the necessary requirement for a spoliation order; that he was in peaceful and undisturbed possession of the mine. In the circumstances, this application is ill-conceived and must fail. There remains to be considered the question of costs. No good grounds exist for a departure from the general rule that costs follow the event. The first respondent is clearly entitled to her costs. In the circumstances, this application is ill-conceived and has no merit. It is accordingly dismissed with costs. Dube Banda J: ……………………………………………… Chitsa & Masvaya Law Chambers, applicant's legal practitioners Gumbo and Associates, 1st respondent’s legal practitioners