Judgment No. SC 22/18 Civil Appeal No. SC 291/16 [48] The appellant’s argument is that the issue that fell for determination on the return day was whether or not spoliation had occurred. The inevitable corollary of that argument is that an interim order of spoliation was granted in terms of the provisional order issued by TAKUVA J and that before MUSAKWA J the issue that fell for determination was its confirmation. Clearly this does not accord with the law. In any event Mr Zhuwarara did concede, before this Court, that at the time the founding papers were drawn and commissioned, the act of spoliation had not taken place. ALLEGATION OF SPOLIATION AROSE AFTER GRANT OF PROVISIONAL ORDER [48] The allegation that spoliation had taken place only arose after the grant of the provisional order. It is common cause that the first respondent in his opposing papers disputed having taken occupation and that the alleged act of spoliation formed the subject of separate proceedings for contempt of court which remain pending before this Court. I agree with Mr Mpofu that the course open to the appellant after the alleged spoliation had taken place was to launch a new application for spoliation and not seek to substitute spoliation in place of the interim interdict that had been granted on the faulty basis that the offer letter issued to the first respondent was not a legally binding document. SECTION 74 OF THE CONSTITUTION [49] The appellant argued, for the first time in heads of argument, that in terms of s 74 of the current Constitution, it had the right not to be arbitrarily evicted in the absence of a court order. It is unclear where this submission comes from. The issue is not part of the appellant’s grounds of appeal. It was not argued before the court a quo and indeed that court made no finding on it. The provision cited deals with arbitrary evictions. 19