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It's wrong to take the law into your own hands

By Nyaradzo Mupfuti

Have you ever been removed from premises you are lawfully renting for failure to pay rent or have you ever been dispossessed of goods lawfully in your possession? Well if the answer is in the affirmative, our law requires you to approach the courts in order to grant you the relief you seek.

The law discourages owners of property from resorting to self-help. It prohibits them from employing the law of the jungle when they proceed to assert their right of ownership of property which is in the hands of the possessor. It encourages them to do so through legally recognised means and, where they adopt such a course, their conduct remains without fault.

It is therefore wrong for example for a landlord to evict a tenant in arrear rentals from the rented premises without a court order. Any eviction will be done after a court grants an order that authorises the eviction. The courts do not allow a situation of self-help by the disputants.

The evicted tenant may institute proceedings that will restore him back onto the premises through a civil court procedure known as mandament van spolie oftentimes referred to as spoliation.

The fundamental purpose of the remedy is to restore possession following unlawful deprivation of the same. Possession includes both physical control(corpus) and mental attitude(animus). In other words, a person need not be physically living inside a house or be inside that house at the material time to be said to be in possession.

The remedy exists in order to prevent members of the public from taking the law into their own hands. Consequently, a court considering an application for a spoliation order will not concern itself with the ownership of the property in issue. That is an irrelevant consideration. It will simply confine itself to the issues of possession and the deprivation thereof.

Therefore, the remedy, is not available to a possessor who is lawfully deprived of a right which he enjoys. It is granted ONLY to a possessor who is unlawfully dispossessed of such right or the thing which he is in possession of. No spoliatory relief can, therefore, be granted to a possessor who has been lawfully deprived of a thing he possesses by its owner.

Spoliation proceedings are by nature urgent are brought before the court by way of application and not by issuing summons. Urgency is basically asking the court to disrupt its normal schedule and hear a matter within the shortest period of time from the date of filing the application, that is to allow jumping the queue and have the matter given priority over all others.

Urgency must be made of facts which by themselves render a matter urgent on the basis of an objective assessment of all the facts availed before the court for example in situations where an evicted person is rendered homeless and deprived access to his property and amenities or where business premises are locked for reasons of none or delayed payment of rent and suffer from loss of business or where a car bought on hire purchase is removed from the possession of the applicant to name but a few.

The applicant must satisfy the court that their matter is urgent in their affidavit otherwise should they fail to do so, their case will not be heard by way of urgency and will follow the normal or regular manner all other applications are heard and disposed of. Furthermore, if one fails to bring the matter within a reasonable time, spoliation may be refused. It pays to act with speed.

If it is alleged that the respondent took possession of property forcefully or wrongfully, a spoliatory action, is concerned with restoration of possession and it is by that very reason that the matter has to be dealt with on the basis of urgency, so long as the applicant would have acted with speed immediately preceding the wrongful dispossession. The applicant in an application for mandament van spolie must satisfy two requirements that:

  • they were in peaceful and undisturbed possession of the property and
  • that the they were deprived of possession forcefully or wrongfully.

In spoliation proceedings, the court is not concerned with ownership rights of the parties, but rather whether or not the applicant was in peaceful and undisturbed possession of the property until he or she was unlawfully dispossessed of same by the other party.

The immediate and only object of this principle is the reversal of the consequences of interference with an existing state of affairs otherwise than under authority of the law, that is to restore the status quo ante. Thereafter other remedies can be used to enforce entitlements according to law such as suing for damages or eviction.