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[2014] ZAGPPHC 402
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Comscience (Pty) Ltd and Others v Stanbury and Another (41186/14) [2014] ZAGPPHC 402 (19 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 41186/14
DATE: 19 JUNE
2014
NOT
REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
COMSCIENCE
(PTY)
LIMITED
.............................................................................................
First
Applicant
LINDA
JOSEPH
NYEMBE
...................................................................................................
Second
Applicant
GERHARD
BOOYSE
...............................................................................................................
Third
Applicant
WARWICK
SPENCER
LAMB
..............................................................................................
Fourth
Applicant
PETER
ROSS
..............................................................................................................................
Fifth
Applicant
and
JOHN
STANBURY
..................................................................................................................
First
Respondent
PAUL
INGLESBY
...............................................................................................................
Second
Respondent
JUDGMENT
Tuchten
J
:
1 This is an urgent
application for spoliatory relief (“the spoliation
application”). The second to fifth applicants
(“the
natural person applicants”) claim that they were denied access
to the principal place of business (“the
premises") of the
first applicant. All the natural person applicants are employees of
the first applicant (“Comscience”).
The second applicant
(“Nyembe”) claims to be a director and shareholder of
Comscience and it is common cause that he
is its chief executive
officer. The fourth applicant (“Lamb”) claims to be a
director of Comscience.
2 All the natural
person applicants had offices or otherwise worked in the premises. On
6 June 2014 they were all either told or
found out that the first
respondent (“Stanbury”) had written them each a letter of
that date in which Stanbury claimed
to be the sole director of
Comscience and, in his capacity as such, was suspending each of them,
pending what the letters described
as an investigation into alleged
acts of wrongdoing broadly identified in the letters, and that the
respondents were denying them
access to the premises. The second
respondent is the chief operating officer of Comscience.
3 The applicants
claim that the board of Comscience consists of three directors,
Nyembe, Lamb and a Mr Grech. The case for Comscience
is that by
denying the natural person applicants (all of them employees or
directors of Comscience) access to the premises, the
respondents had
spoliated Comscience which was, through the natural person
applicants, were in possession, together with Comscience’s
other employees, of the premises. In addition, the natural person
applicants claim to have been spoliated in their personal capacities.
4
The requisite for a mandament van spolie at issue in this case is
proof that the applicants possessed the spoliated thing. Our
law
distinguishes in this context between
detentio,
the
act of exercising physical control over a thing,
1
and possession, ie
detentio
where
the detentor holds with the intention of doing so for himself.
2
Possession need not be possession in the strict legal sense. It
suffices if the applicant factually held (
detentio
)
the thing with the intention (
animus)
of
securing some benefit for himself. The
causa
of
the possession is irrelevant. The mandament is available, in
principle and provided the possession was peaceful and undisturbed,
to a thief, a robber, an illegal occupant, a trustee, a pledgee, a
precarist, a lessee, a depositary, a hire-purchaser, a borrower,
a
building contractor and an agent. Possession need not be physical or
personal, provided it is effective. It need not be exclusive
since
there will be a claim at the suit of a person who holds jointly with
others. It need not be continuous, nor need it be the
whole of the
property.
5
The respondents’ case is that Comscience remains in possession
of its premises and was not deprived of its possession and
that the
natural person applicants did not occupy the premises in their own
rights but only as detentors of Comscience. The occupation
by the
natural person applicants, it was submitted on behalf of the
respondents, was mere
detentio
and
not possession.
Detentio
is,
so it was submitted, not sufficient to ground a mandament van spolie.
Only a possessor can claim the mandament.
6 I must first
identify the material legitimately before me. The spoliation
application is something of a preliminary skirmish,
preparatory to
the resolution of a wider dispute relating to the identity of
Comscience’s shareholders and directors, the
contractual
instruments that bind Comscience and others, including but not
limited to the participants in the present dispute,
and the validity
of certain instruments and actions allegedly effected in relation to
or in the name of Comscience.
7 The spoliation
application was launched by notice of motion dated and served on the
respondents’ attorney on 6 June 2014,
the day of the
withholding of access I have described above. The respondents and a
Mr Johan Booysen were on that date preparing
another application to
this court (which I shall call, for want of a better term, the main
application), apparently under the same
case number, in the name of
Booysen as trustee of a trust, citing the present applicants,
together with Grech and Absa Bank, as
respondents for relief arising
from the allegation that certain of these respondents have tried to
take over Comscience (as a “cabal”).
The present
respondents delivered an answering affidavit in the spoliation
application but also delivered the notice of motion
and founding
affidavit in the founding affidavit, deposed to by Booysen, in the
main application as “part of the answering
affidavit” in
the spoliation application. Nothing in the answering affidavit
properly so called identified the passages in
Booysen’s
affidavit upon which the respondents would seek to rely in the
spoliation application.
8
This decision to use the founding affidavit in other proceedings,
which runs to 70 pages without its annexures, unfortunately
caused
difficulties in the adjudication of the spoliation application.
Counsel for the applicants submit that this procedure, objectively
viewed is abusive. In
Lipschitz
v Markowitz
,
3
the court held:
Mr.
Peart
ultimately
took refuge in the last paragraph of the founding affidavit which I
have quoted, for saying that that allegation is sufficient
to
negative the point
in
limine.
This
is the blanket allegation that perusal of the record of evidence will
reveal some
prima
facie
case
of misfeasance. I am not prepared to accept this proposition. A
litigant cannot, as it were, throw a mass of material contained
in
the record of an enquiry at the Court and his opponent, and merely
invite them to read it so as to discover for themselves some
cause of
action which might lurk therein, without identifying it. If this were
permissible, the essence of our established practice
which is
designed and which still evolves as a means of accurately identifying
issues and conflicts so that the Court and the litigants
should be
properly apprised of the relevant conflicts, would be destroyed.
9 I think counsels’
submission is good. I shall only look at evidence conveyed through
the founding affidavit in the main
application where I am sure that
no prejudice is caused to the applicants in the spoliation
application in the sense that the applicants
were adequately
forewarned of the issue in the spoliation application said to arise
from that evidence.
10 I intend to begin
with the position of Comscience. A company performs juristic acts,
including the act of exercising rights and
powers of possession,
through its organs, most notably its board of directors. The
applicant’s case is that the members of
the board on 6 June
2014, were Nyembe, Lamb and Grech. The respondent’s case is
that these three men were previously directors
of Comscience but that
they had been replaced by Stanbury.
11 I agree with
counsel for the applicants that the respondents’ case in this
regard is mere assertion. There is nothing put
up by the respondents
which demonstrates that any of these three men ceased to be a
director of Comscience in circumstances contemplated
by
s 70
of the
Companies Act, 71 of 2008
, or was removed as contemplated in
s 71
of
the same Act. Nor is there any acceptable evidence before me that
Stanbury was appointed a director of Comscience.
12
It follows that the contention of the respondents that Comscience is
not before the court because those who the applicants claim
are its
directors are in fact not its directors and that Comscience thus did
not resolve to institute the present urgent application
cannot be
upheld in these proceedings. I come to that conclusion because it is
the respondents’ case in the answering affidavit
that Nyembe,
Lamb and Grech
were
previously
Comscience’s
directors but that they have been displaced. The issue sought to be
raised by the respondents in the spoliation
application is thus not
whether the three men were properly
appointed,
but
whether they were properly
removed
as
directors. I hold further that the allegations made by the
respondents in relation to those alleged removals are inadequate to
raise a genuine dispute of fact on the papers.
13
Counsel for the respondents submitted that a person who holds a thing
merely as employee of another does not exercise possession
but merely
detentio.
I
was referred particularly in this regard to
Mpunga
v Malaba
1959
1 SA 853
W,
Engeling
and Another v Bosielo andAnother[
1994]
All SA 351
BG,
Du
Randt en ‘n Anderv Du Randt
1995
1 SA 401
0,
Greaves
and Others v Barnard
2007
2 SA 593
C,
De
Beer v Zimbali Estate Management Association (Pty) Ltd and Another
2007
3 SA 254
N and
Fisher
v Body Corporate Misty Bay
2012
SA 215
GNP.
14
The other side of that coin, however, is that where the
detenfor/employee is deprived of his
detentio,
the
employer on whose behalf
detentio
is
held is the possessor, through the employee in question, and is, by
the act of depriving its employee of
detentio,
spoliated.
Thus it was held in
Mpunga
,
supra
,
at 861E-G:
It seems to me that
the authorities have established that a servant or a person who holds
no rights on his own behalf, except insofar
as such rights derive
from an authority given to him by the master, is not entitled to
bring proceedings for a spoliation order,
but that only the employer
can do so.
15
In the present case, Comscience possessed its premises through (with
others) the three men who were claiming to be its directors
and whose
power to do so has not been successfully challenged in these
proceedings. In my view, by denying Comscience’s detentors
access to the premises, the respondents deprived Comscience, on whose
behalf its detentors were holding the premises, of possession
of the
premises. It matters not, in my view, that other representatives and
organs of Comscience were holding the premises for
Comscience equally
with the natural person applicants. Comscience was in possession
through
all
its
relevant employees and organs. By denying any one of them access to
the premises, the respondents have deprived Comscience,
pro
tanto,
of
possession.
16
As to the natural person applicants: in my view Nyembe and Lamb held
some part or parts of the premises notably their offices,
in their
own rights as directors as well as on behalf of Comscience as
employees. It follows that Nyembe and Lamb have been spoliated
in
their own rights. The third and fifth respondents, Booyse and Ross,
have not been spoliated in their own rights because they
held the
premises on behalf of Comscience only but an order must issue, at the
instance of Comscience, restoring the possession
of the premises as a
whole to Comscience and the
detentio
of
the premises as a whole to all the natural person applicants because
that
detentio,
exercised
by the natural person applicants in their capacities as employees of
Comscience, is an element of Comscience’s possession
through
each of them of the premises as a whole.
17 It was accepted
on both sides that costs should include the fees of both senior and
junior counsel and the costs which were reserved
on two previous
occasions. It was also accepted that an order should issue releasing
to the third applicant the things removed
and held in secure storage
by the sheriff pursuant to paragraph 1 of an order made by Fourie J
on 6 June 2014.
18 I make the
following order:
1 It is directed
that the first, second, third fourth and fifth applicants must be
restored to and forthwith given access to the
premises of the first
applicant at 14 Kastaiing Nook, Highveld Techno Park, Centurion;
2 The sheriff is
hereby authorised and directed to release to the third applicant the
things removed and held in secure storage
by the sheriff pursuant to
paragraph 1 of the order under the above case number made by Fourie J
on 6 June 2014.
3 The respondents,
jointly and severally, must pay the costs of this application,
including the costs which were reserved on 6 and
12 June 2014, which
in all such cases will include the costs incurred consequent upon the
employment of both senior and junior
counsel.
NB Tuchten Judge of
the High Court
19 June 2014
1
Beck
v
Mills
en
'n
Ander
1990
1 SA 751
A 757D
2
S
v R
1971
(3) SA 798
T 801B
3
1976
3 SA 772
W 775H-776A