Judgment No. SC 22/18 Civil Appeal No. SC 291/16 9. The learned court a quo erred at law in omitting to determine the question of whether due process was followed in the allocation of the land at issue to the respondent. APPELLANT’S SUBMISSIONS BEFORE THIS COURT [14] In heads of argument filed with this Court, the appellant submitted that the court a quo had misdirected itself in opining that the appellant had failed to demonstrate a clear right – a requirement one needs to establish where a final interdict is sought - when the appellant’s case was predicated on the mandament van spolie. The court a quo should not therefore have concerned itself with the rights of the parties as the live issue at the stage of confirmation of the provisional order was whether or not spoliation had been established. Since it had been established that the appellant had been in peaceful and undisturbed possession and that the first respondent had despoiled it of such possession, the court a quo should therefore have confirmed the order of spoliation and ordered the restoration of the status quo ante. Before restoration of that status, the court a quo had no jurisdictional ability to evaluate the appellant’s rights viz-a-viz the acquired land since the cause for possession is irrelevant and it is for that reason that even possession by a thief is protected. In short it was submitted that the relief sought a quo was for the confirmation of spoliatory relief that had already been granted. Further, in terms of s 74 of the Constitution of Zimbabwe, the court a quo cannot sanction the arbitrary eviction of the appellant in the absence of a court order. [15] In oral submissions Mr Zhuwarara, for the appellant, conceded that, going by the founding affidavit, no spoliation had taken place at the time of the grant of the provisional order. However, it was his submission that after the interim order had been 6