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[2006] ZAWCHC 33
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Greaves and Others v Barnard (A894/06) [2006] ZAWCHC 33; 2007 (2) SA 593 (C) (3 August 2006)

IN THE HIGH COURT OF SOUTH AFRICA
CAPE OF GOOD HOPE PROVINCIAL DIVISION
Case no A 894/05
In the matter between
CAREL EDWARD GREAVES
First appellant
DIRK CYRIL KNAPP
Second appellant
CARL GREAVES BROKERS (PTY) LTD
Third appellant
ELIZABETH ANNE GREAVES
Fourth appellant
MUSTAPHA MURUDKER
Fifth appellant
and
JUAN BARNARD
Respondent
JUDGMENT DELIVERED ON 3 AUGUST 2006
_____________________________________________________
BLIGNAULT J
:
[1] Respondent, Mr Juan Barnard, was the successful applicant in
spoliation proceedings in the court below. Appellants were ordered
to restore possession to him of certain office premises situated at
29 Douglas Carr Drive, Bellville, Western Cape. They now appeal
against that order.
[2] At the time of the events giving rise to the application
respondent was the marketing director of third appellant, a company
named Carl Greaves Brokers (Proprietary) Limited, which has its
principal place of business at 29 Douglas Carr Drive, Bellville.

First appellant, Mr Carel Edward Greaves, is the managing director of
third appellant. Second appellant, Mr Dirk Cyril Knapp, is
third
appellant’s human resources director. Fourth appellant, Ms
Elzabeth Anne Greaves, and fifth appellant, Mr Mustapha Murudker,
are
also directors of third appellant.
[3] Respondent said that he and first and second appellants were the
shareholders in and executive directors of third appellant in
terms
of a shareholders’ agreement signed on 12 March 1998. The
shareholders’ agreement provided that respondent would hold
25 of
the 97 issued shares in third appellant, first appellant would hold
49 shares and second appellant 23 shares. The agreement
provided that
the three of them would be the executive directors of third
appellant. In terms of clause 10 of the agreement all benefits
accruing to the company would be divided equally between the three
shareholders. Clause 18 of the shareholders’ agreement reads
as
follows:
“
Shareholders shall owe to
each other a duty of good faith at all times. Their relationship
shall be construed as that of quasi partners.”
[4] Third appellant carries on the business of insurance and property
brokers, financial and estate planners, medical aid consultants,
bookkeepers and drafters of wills. The immovable property where its
offices are situated, is owned by a subsidiary, Insurance Broking
Shop (Proprietary) Limited. It consists of a double story building
which was previously used as a residential home and an office.
It
has a reception area, consultation room, eight offices, a bar and
entertainment area and a courtyard with a swimming pool and
a safe.
[5] In para 36 of his founding affidavit respondent described his
possession of his office as follows:
“
My possession entailed the
use of my office, access to all the other offices, entertainment and
other areas, as well as interaction
with the staff to assist me in
the peformance of my duties. I further had access to all the files
with client and company information.
I had access to the office safe
through the office manager.”
[6] The spoliation, respondent said, took place on 8 April 2005. It
was preceded by negotiations between him and first and second
appellants to sell his shares to them. On 4 April 2005 first
appellant addressed a letter to him in which he was asked to respond
to certain allegations that he was acting in breach of his duty of
good faith to the company and his fellow directors. He responded
to
that letter but on 6 April 2005 he was informed in writing by third
appellant’s attorneys that procedures to remove him as director
were about to be instituted and that pending the resolution of that
issue he was suspended as a director. He was informed that in
terms
of the suspension he was not allowed to enter the company’s
premises without first appellant’s express written permission,
nor
to contact any of the company’s staff, suppliers, business contacts
or clients. The letter was hand delivered to him at 19:35
on 6 April
2005. He responded to that letter on 8 April 2005.
[7] Respondent said that the interference with his peaceful use and
possession of his office began after lunch on 8 April 2005.
He
received a telephone call from third appellant’s attorney informing
him that he would be removed from the building by the police
or
security guards. Two security guards and two policemen entered his
office and told him that they had instructions to remove him
from the
premises. When he asked them to provide him with a court order
authorising their conduct, they left. He tried to telephone
one of
the company’s employees to discuss certain matters with him. Four
security guards again entered his office unannounced
and told him to
leave the premises immediately. He again asked whether they had a
court order and they left. Another person, ostensibly
from third
appellant’s attorneys, also entered his office and told him to
leave his office. This person appeared very intimidating.
With all
the activity in his office he found it impossible to continue with
his normal work. When he left the building that afternoon
he noticed
that the lock to the front gate had been replaced. When he visited
the premises the next day he found that he could not
open the front
gate as the lock had been replaced.
[8] First, second and third appellants opposed the application.
They did not seriously dispute that the conduct complained of
amounted
to interference with respondent’s occupation of his
office. Their defence to the application was that respondent’s
former occupation
of his office was derived from his position as
employee of third appellant and that in such capacity he was not
entitled to the remedy
of spoliation.
[9] The court below (Motala J) rejected appellants’ defence and
granted the relief sought by respondent. Appellants (according
to
the notice of appeal, all five the original respondents) now appeal,
with leave of the court below, to this court (a Full Bench
of this
Division), against the whole of the judgment including the order as
to costs. They contend that the court below should have
upheld the
defence to the application.
[10] The learned judge in the court below referred to a number of
cases in which it was decided that a person who was in possession
of
property as an employee or as an agent, is not entitled to obtain a
spoliation order, namely
Mpunga v Malaba
1959 (1) SA 853
(W)
,
Mbuku v Mdinwa
1982 (1) SA 219
(TkS)
and
Dlamini and
Another v Mavi and Others
1982 (2) SA 490
(W)
.
He pointed
out, however, that the general rule only applied to an agent or
employee who had no interest in the property over and above
the right
which he held as agent or employee. Thus in
Mpunga's
case,
supra,
Steyn AJ said, at 861F:
“
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. In other words it seems to me that before a person can bring
spoliation proceedings, he must
show that the right of which he has
been spoliated is something in which he has an interest over and
above that interest which he
has as a servant or as a person who is
in the position of a servant or a quasi-servant.”
In
Mbuku v Mdinwa, supra,
Hefer CJ said, at 222F-H:
“
In any event, I am of the
view that an agent who has no interest in the property which he holds
for his principal, or who derives
no benefit from holding it, is not
entitled to claim the relief of a mandament van spolie. One should
not forget that it is a remedy
which is available to a possessor; it
has never, to my knowledge, been extended, except perhaps
inadvertently, to a mere detentor.
But the animus possidendi which is
required to transform detentio into possession is not the intention
required of old for so-called
civil possession; it is no more than
the intention to hold the thing in question for one's own benefit and
not for another. And a
detentor who does not have that intention is
indeed merely a detentor. I am in full agreement with the view
expressed in Wille Principles
of SA Law 7th ed at 196 - 7 that
'... if the person who has detentio of a thing has
the intention of holding it not for himself but for another person,
he does not
have possession, he is a custodian merely and the
possessor is the person on whose behalf he is holding.'”
And in
Dlamini and Another v Mavi and Others, supra,
at
492E-F, reference was made to
Yeko v Qana
1973 (4) SA 735
(A)
where van Blerk JA (at 739D – H) said the following:
“
The very essence of the
remedy against spoliation is that the possession enjoyed by the party
who asks for the spoliation order must
be established. As has so
often been said by our Courts the possession which must be proved is
not possession in the juridical sense;
it may be enough if the
holding by the applicant was with the intention of securing some
benefit for himself.”
[11] In the present case, the learned judge held, respondent was in
occupation of his office as a director of third appellant. As
such
his position could not be equated with that of a servant or agent of
the company. Directors are creatures of statute and occupy
a
fiduciary position peculiar to themselves. Respondent was moreover a
shareholder in third appellant and the shareholders’ agreement
provided that the relationship between shareholders is to be regarded
as that of quasi-partners. It is well established, he said,
that
partners are joint possessors of partnership property and a partner
can obtain a spoliation order in respect of partnership
property. By
virtue of his shareholding in and directorship of third appellant, he
said, respondent had an interest over and above
that of a mere
employee. He derived a benefit from being on the premises and he was
under a duty to be there.
[12] Mr A C Oosthuizen SC appeared on behalf of appellants. He
submitted first that the present case falls within the general rule
that an employee is not entitled to bring spoliation proceedings.
The case made out by respondent in para 36 of his founding affidavit,
he submitted, was that he required access to his office and his files
and his staff. This was access in his capacity as employee
of third
appellant. In his replying affidavit, Mr Oosthuizen submitted,
respondent sought to make out a different case, namely
that he was an
occupant of the premises by virtue of his position as shareholder and
director of third appellant and as a quasi-partner
of first and
second appellants.
[13] Mr Oosthuizen submitted in any event that respondent’s rights
as shareholder did not confer upon him any rights of occupation
of
the property. The rights of a shareholder in a company, he argued,
are to attend shareholders’ meetings and receive dividends.
He
does not require possession of the company’s property for those
purposes. Mr Oosthuizen referred in this regard to
Engling and
Another v Bosielo and Others
1994 (2) SA 388
(BG) in which a
spoliation application by a director and shareholder of a company was
refused.
[14] Mr Oosthuizen’s third submission was that respondent’s
reliance on a quasi-partnership was flawed. A quasi-partnership
is
not the same as a partnership and respondent, he submitted, did not
allege any facts in his affidavits to show that he was entitled
to
possession of the office in his capacity as a quasi-partner.
[15] Mr R Patrick appeared on behalf of respondent. He submitted
first that respondent relied in his founding affidavit upon his
possession of the premises in his capacity as an employee and
director of, and a shareholder in, third appellant, with the rights
and interests set forth in the shareholders’ agreement. He pointed
out that the shareholders’ agreement was placed before the
court as
an annexure to the respondent’s founding affidavit and its terms
were not disputed by appellants.
[16] I agree with Mr Patrick’s submission that by relying on the
shareholders’ agreement, respondent was not trying to make out
a
new case in reply. Reading para 36 of the founding affidavit in
proper context it is clear that respondent was not confining himself
to his occupation as an employee. Earlier in the same affidavit
respondent said the following:
“
9. This matter is urgent
as I am being severely prejudiced on a daily basis by being prevented
from:
a. Protecting the interests
of clients effectively;
b. Protecting the interests
of the Third Respondent (of who I am a shareholder and director);
c. Protecting my interests as
surety for the debts of the Third Respondent;
d. Protecting my shareholding
interests therein;
e. Fulfilling my functions as
director of the Third Respondent;
f. Peacefully occupying my
place of employment;
g. Entering the office
premises after hours.”
[17] On my reading of the founding affidavit as a whole, respondent’s
case is that in occupying his office he was carrying out
his
functions as employee and director and at the same time advancing his
own interests as shareholder. As an allegation of fact
appellants
did not dispute this statement. It appears to me indeed to be
unanswerable. By carrying out his functions as marketing
director
respondent would have increased the benefits accruing to the company.
As one of the three shareholders he was entitled
to one third
thereof.
[18] As to respondent’s rights and interests as shareholder it is
in my view not helpful to refer to the theoretical position in
other
companies. One must have regard to respondent’s position in this
particular company, namely third appellant. I may add
that the
judgment in
Engling and Another v Bosielo and Others, supra,
does
not assist appellants. Although the applicant in that matter was a
director and a two-thirds shareholder of the company that
owned the
property concerned, a bottle store, the application was refused on
the ground that he did not have any physical possession
(detentio)
of the bottle store. It was accordingly not necessary for the
court to decide whether, if he had had
detentio,
he was
holding in order to secure some benefit for himself.
[19] More pertinent, in my view, is the earlier case of
Meyer v
Glendinning
1939 CPD 84
(referred to at 395G/H-396A in
Engling
).
A racehorse trainer had been handed three horses by the owner for
training and stabling, for which services a monthly fee was
payable.
The owner, without notice to and without the consent of the trainer,
entered the latter's stables and removed the horses.
A Full Court
held that the trainer was entitled to a spoliation order against the
owner. Davis J said, at 94:
“
It is obvious that a
trainer, such as the applicant, himself gains many advantages, both
direct and indirect, from the presence of
horses in his stables.”
[20] There may be some merit in Mr Oosthuizen’s submission that
the reference to a quasi-partnership in clause 18 of the
shareholders’
agreement does not mean that respondent must for all
intents and purposes be regarded as a partner. In my view, however,
nothing
turns on this point. Even if the reference to a
quasi-partnership in clause 18 is ignored it is quite clear that
respondent’s
position can not be equated with that of a person
whose only interest in the property is that of an agent or employee.
[21] I am accordingly of the view that the learned judge in the court
below came to the correct conclusion. Respondent occupied
the
property in question in his capacity as an executive director of and
shareholder in third appellant with the rights and interests
described in the shareholders’ agreement. The respondent’s
interests in his possession of the property materially transcended
those of a mere agent or employee. He clearly performed his work and
occupied his office
“with the intention of securing some benefit
for himself.”
Respondent was accordingly entitled to ask for a
spoliation order.
[22] I would therefore dismiss the appeal with costs.
---------------------------
A P BLIGNAULT
DESAI J:
I agree. It is so ordered.
---------------------------
S DESAI
VELDHUIZEN J:
I agree.
---------------------------
A H VELDHUIZEN