Nyashadzashe Ndoro
The High Court has partially overturned a spoliation order granted by the Magistrates’ Court in a land dispute case involving Bergus Investments (Pvt) Limited and Pasi Chitsiko, Shadreck Zimba and Alois Zimba.
The Magistrates’ Court had ruled in favour of Bergus Investments (Pvt) Limited, granting them a spoliation order and an interdict against the Zimbas. The Zimbas, who were represented by lawyers from Mtetwa & Nyambirai, appealed the decision, arguing that the Magistrates’ Court erred in its judgment.
In her ruling, Justice Fatima Chakapamambo Maxwell noted that the Magistrates’ Court should not have proceeded to determine the matter on papers as there were material disputes of fact that needed to be resolved through a trial. The most critical dispute centred on who was in peaceful and undisturbed possession of the property before the alleged spoliation.
The Zimbas, through their lawyers, argued that they had been in peaceful possession of the property since 2009, while Bergus Investments claimed they were spoliated from the land in July 2022.
Justice Maxwell further criticised the Magistrates’ Court’s conclusion that the Zimbas were not truthful and sincere in their arguments, stating that this finding was made “without affording them an opportunity to be heard and explain”.
“Appellants (the Zimbas) argued that they are not decision makers at the company and therefore any perceived delay in taking remedial action cannot be attributed to them. Whether or not investigations would still be in progress in a matter reported in February 2022 is a matter for police to explain. I find it irrational that the lower court concluded that the Appellants were not truthful and sincere in the absence of evidence to the contrary.
“The fourth ground of appeal has merit and therefore succeeds.
“Appellants fault the lower court for finding that Respondent had proved on a balance of probabilities that it was in possession of the property in question and was despoiled by them. They argued that the finding was grossly irrational considering the disputed facts before it. I agree. As stated above, it was not established who was in peaceful and undisturbed possession,” the judge ruled.
The High Court, however, did not find merit in the Zimbas’ argument regarding the best interests of their minor children, which they argued should have been a deciding factor. Justice Maxwell pointed out that while the Constitution protects the right to shelter for children, “the best interest of the child does not necessarily override or trump other rights and interests.”
“Appellants argued that the lower court completely ignored and failed to take into account the best interests and rights of their minor children. They referred to s 81 (1) (f) of the Constitution of Zimbabwe which provides that every child has a right to shelter. They also referred to the case of Zimbabwe Homeless People’s Federation and 7 Others v Minister of Local Government and National Housing and 3 Others SC 94/20 in which the Supreme Court confirmed that s 81 (1) (f) of the Constitution of Zimbabwe creates an enforceable and justiciable right to shelter for all children.
“Appellants’ reference to the above case does not help their case,” the judge ruled.
Ultimately, the High Court ruled that the Magistrates’ Court had misdirected itself in its judgement and remitted the case back for trial. The order for costs was adjusted such that each party bears their own legal fees.
Jiti Law Chambers represented Bergus Investments (Pvt) Limited.
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