DISTRIBUTED BY VERITAS TRUST Tel: [263] [4] 794478 Fax & Messages [263] [4] 793592 E-mail: veritas@mango.zw Veritas makes every effort to ensure the provision of reliable information, but cannot take legal responsibility for information supplied. Judgment No. SC 34/18|18 Civil Appeal No. SC 165/16 application it was opposing. The first respondent was therefore entitled to rely on derivative action to sue on behalf of the second respondent. GUVAVA JA: I fully concur with UCHENA JA’s assessment of the facts leading up to the institution of the proceedings a quo and his conclusion on the first respondent’s entitlement to sue by way of derivative action on behalf of the second respondent. Once it has been found that the first respondent had locus standi to bring the application then the second issue must be determined. 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.” 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. I propose to deal with each factor in turn.