Falcon Golf Club intensify bid to regain possession, control of its land and facilities taken by force by Air Force of Zimbabwe
By Staff Reporter
Falcon Golf Club, yesterday submitted an answering affidavit to intensify bid for spoliatory relief from the military after losing possession and control of its land and facilities through use of force by the commander Air Force of Zimbabwe Jacob Nzveda (pictured).
The military claimed ownership and control of the golf club premises based on a proclamation or declaration of a cantonment.
Spoliatory relief is an urgent High Court application to get back something you were unlawfully kicked off/taken from, without the court deciding who actually owns it yet.
It’s called spoliation — from the Latin _spoliatus_ — meaning “you were despoiled / robbed of possession”.
At the heart of the application is the allegation and submission by Falcon Golf Club as the applicant that the
respondents put the law into their own hands in using force to dispossess them from the land on which Falcon Golf Club was a tenant based on lease agreement with the City of Harare since 1971.
By and large the Applicant abides with the averments stated in its founding and
answering affidavit and incorporates same.
“This is an Court Application for a spoliatory relief in terms of the Common Law as read with Rule 59 of the High Court Rules,2021 against the respondents wherein the applicant, and the generality of its membership, seek to be restored possession and occupation of the Falcon Golf Club house, the golfing premises and other amenities which the applicant, its membership and trustees were in peaceful and undisturbed possession of, prior to the period covering 5 September 2026 to 12 September 2026, which period constitutes the timeline when the unlawful spoliation acts were carried out and concluded by the 2nd Respondent,” reads the court papers.
“None of the Respondents acted according to an order of court nor were any of their actions of forcefully dispossessing Applicant of its possession of its stands legal. In June 1971 the then City or Salisbury now the City of Harare entered into a lease agreement with the Applicant wherein the City of Harare leased to the applicant several stands.
“The lease agreement is currently extant as it is due to expire on 29th June 2070. In terms of the lease agreement, the applicant undertook to inter alia, setting up a golf course and ancillary Club buildings and other amenities for a Golf Club. See attachments to founding affidavit. In pursuit of meeting its contractual obligations, the applicant did construct a golf course, and some club buildings and related amenities, which constitute improvements to the
leased land estimated to run into millions, the improvements.”
From the date on which the applicant took occupation of the said immovable property
based on the lease until recent developments that took place from the 5th of September 2026 to 12th September 2026, the applicant was in peaceful and undisturbed possession of the Golf Club buildings and other physical amenities which it constructed on the stand
in question.
Members of the applicant as well as the trustees were in peaceful and
undisturbed possession of the club infrastructure and at the same time they were enjoying the rights which came with the occupation of the stand in question.
The position regards the law on spoliatory relief has been clarified by the Supreme Court and is now trite.Chief among the cases is the judgement of Minister of Mines and Mining Development and Others v Grandwell Holdings (Private) Limited and
Others Judgment No. SC 34/18 wherein Patel JA, Guvava JA (as they were then) &
Uchena JA concurred in the Court’s ratio decidendi by stating the following:
“Whether or not the appellants despoiled the second respondent. In my view, the facts of this case disclose a classic text book case of spoliation. In the case of
Botha & Anor v Barrett 1996 (2) ZLR 73 (S) GUBBAY CJ stated as follows at p 79 D-E: “It is clear law that in order to obtain a spoliation order two allegations must be made and proved.
These are: That the applicant was in peaceful and undisturbed possession of the property; and,
That the respondent deprived him of the possession forcibly or wrongfully against his consent.”
The applicant submitted that in order to make a determination of whether or not the second respondent was despoiled it is necessary to prove the two factors stated above.
Falcon Golf Club also avered that there is no question that the physical and mental component (detentio) is very much apparent regard being given to the lease agreement and that the possession of the land was only lost via the forceful actions of the 2nd Respondent from the 5th to 12th of
September in dispossessing the Applicant and its members from the land.
Reference was made to Moyo and Another v Blanket Mine (1983) and Others Judgement number SC 87/22 and Minister of Mines and Mining Development and Others v Grandwell Holdings
(Private) Limited and Others Judgment No. SC 34/18 and allegations per the founding
affidavit.
The matter turns on the question regards whether the Respondents deprived Applicant
of its possession forcibly or wrongfully against its consent. The Applicant submits that
indeed the Respondents deprived Applicant of its possession forcibly or wrongfully
against its consent because the Applicant never consented to losing its possession of the
land, the Respondents did not have a court order allowing them to dispossess or evict the
Applicant and the fact that 1st Respondent had declared a cantonment over the land
is irrelevant because the question of lawfulness of the Applicant’s possession at the
time of dispossession (5-12 September 2026) is not a relevant factor for the Court to
consider in an application for spoliatory relief.
“The issue of lawfulness of Applicant’s possession when dispossession takes place may only be relevant in appeal or review proceedings. In any event the declaration regards the Cantonment is under challenge under Review HCH 5002/26 with this Court.”
More references were made to Fisani Moyo and Another v Blanket Mine (1983) and Others Judgement number SC 87/22 ; Minister of Mines and Mining Development and Others v Grandwell Holdings (Private) Limited and Others Judgment No. SC 34/18; Botha and Another v Bennet 1996 (2) ZLR 73 (S), Nino Bonino v De Lange 1906 TS 120 at 122 , Silo v Naude 1929 Ad 21 ; Mutsotso and Others v Commissioner of Police and Anor 1993 (2) ZLR 329 (H); Chisveto v Minister of Local
Government and Town Planning1984 (1) ZLR 248 (H); Shiriyekutanga Bus Services
P/L v Total HH 64-2008 ; Dodhill (Private) Limited and Another v Minister of Lands
and Rural Resettlement and Another HH 40-2009.
“Once it is accepted that the Respondents took the law into their own hands and
dispossessed the Applicant, the Court is left with only one option, which is restoring
possession to Applicant to allow the status quo ante prior to 5 September 2026 to prevail, leaving either party with the option to approach the Courts to seek enforcement
of Cantonment (that is Respondents if they so wish) or challenge the proclamation of the
cantonment (as Applicant has done under HCH 5002/26).For now the Applicant must be
restored its possession of the land as before.
“The idea behind spoliatory relief has been emphasized in case law, it is there to prevent
chaos in society and prevent citizens employees and organs of State from taking the law
into their own hands to enforce evictions, similar to what occurred in this case. Spoliatory
relief is therefore merited and should be granted in Applicant’s favour as its lease has
neither been cancelled,” reads the court papers.
