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THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

Case 2024-050337









In the matter between:

WILLIAM OLIVER GRAHAM N.O.

First Applicant
ANNAMEY GRAHAM N.O.

Second Applicant
HERMARNUS ALBERTUS DU TOIT N.O. Third Applicant

and

JACOBUS CORNELIUS REYNEKE

First Respondent
GAMAN 50 (PTY) LTD

Second Respondent
ELEGANT ELM TRADING (PTY) LTD

Third Respondent
RUDOLF WOLDEMAR WINCKLER

Fourth Respondent
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes



Date: 13 March 2025

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LIEZL CRONJE Fifth Respondent


JUDGMENT


DU PLESSIS J

Introduction
[1] The applicants, acting as trustees of the Rodzina Carbonile Trust ("the Trust"),
seek leave to file a further affidavit under Rule 6(5)(e) of the Uniform Rules of Court.
This application arises in the context of a pending spoliation application, in which the
Trust seeks the restoration of its alleged sole shareholding in the third respondent,
Elegant Elm Trading (Pty) Ltd ("Elegant Elm").

[2] After the founding, answering and replying affidavits were delivered, the Trust
delivered a "further affidavit" without the court 's permission. This prompted the first
and third respondents to deliver a notice of an irregular step under Rule 30. The Trust
did not remove the irregular step within the time provided for in the notice. The first
and third respondents then launched an interlocutory application under Rule 30 to
have the irregular step set aside. With the delivery of the Rule 30 application, the Trust
withdrew its further affidavit. The Trust then launched this Rule 6(5)(e) application.

[3] The respondents oppose the application on the basis that the Trust had ample
opportunity to include the additional evidence in its founding affidavit. They submit that
the proposed affidavit introduces new issues rather than merely responding to
unexpected allegations raised in the answering affidavit.

[4] The spoliation application concerns the removal of the Trust 's name as the
registered 100% shareholder of Elegant Elm. The Trust alleges that the respondents
unlawfully altered the company 's share register on 20 March 2024, replacing the
previous share certificate issued on 6 July 2020. The respondents contend that this
alteration merely corrected a fraudulent misrepresentation of ownership allegedly
orchestrated by Ms Reynolds, the custodian of the original share register.

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[5] The Trust refers to an answering affidavit filed by Mr Reyneke on behalf of the
respondents in another matter instituted in terms of section 61(3) of the Companies
Act,1 in which he explained how he altered the company records of Elegant Elm
because they , allegedly, did not reflect the true state of affairs. He did so without
informing the Trust. The Trust asserts that this was an act of self -help since it
happened without forewarning the Trust and bypassed the court.

[6] The respondents allege fraudulent and criminal conduct on the part of Ms
Reynolds (the custodian of the original share register of Elegant Elm until 8 March
2024), whom they claim colluded with the Trust to commit fraud and forgery. The
respondents raised this issue to address the question of ownership. However, the
Trust submits that ownership is irrelevant in a spoliation application.

[7] The respondents' allegations of fraud and forgery prompted the Trust to file
another affidavit, stating that it would have adverse consequences in this and other
litigation if they did not address these accusations. The Trust contends that leaving
these allegations uncontested would prejudice them in multiple proceedings.

[8] The Trust asserts that its application is not aimed at "relieving the pinch of the
shoe" but rather at addressing the allegations made in the answering affidavit,
particularly considering other ongoing litigation in which the ownership of the shares
is in dispute. The Trust states that they did not have the benefit of Ms Reynolds '
affidavit at the time of filing the initial affidavits because she was unwilling to discuss
the matter. Ms Reynolds finally agreed to depose an affidavit on 4 June 2024..

[9] The respondents submit that a Rule 6(5)(e) application is ordinarily brought by
a respondent and typically succeeds only in exceptional circumstances, such as when
something unexpected emerges from the replying affidavit. The respondents oppose

something unexpected emerges from the replying affidavit. The respondents oppose
the application on the basis that the Trust is attempting to introduce new evidence that
it failed to include in its founding affidavit despite already filing a lengthy replying
affidavit.


1 Act 71 of 2008.

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[10] The respondents further contend that the Trust's new evidence pertains to the
issue of ownership, which the Trust itself has maintained is irrelevant to a spoliation
application. The respondents submit that the Trust is, in effect, attempting to introduce
a new round of affidavits, thereby amounting to a second application.

The law on Rule 6(5)(e)
[11] Rule 6(5)(e) provides that the court has discretion to permit the filing of
additional affidavits beyond the usual three sets (founding, answering, and replying
affidavits). This discretion, however, is exercised sparingly and only in exceptional
circumstances where the interests of justice demand it.

[12] M otion proceedings are intended to be final and efficient. The admission of
additional affidavits must not be allowed to introduce an unnecessary fourth round of
pleadings. As established in Transvaal Racing Club v Jockey Club of SA ,
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applicant must show that the new evidence could not have been introduced earlier ,
that there is a full and satisfactory explanation for the delay , t hat the evidence is
material and relevant to the dispute and t hat allowing the affidavit will not unfairly
prejudice the opposing party. The overriding consideration remains fairness and
justice, not only to the applicant but also to the respondents. A court must be satisfied
that any prejudice caused by allowing additional affidavits cannot be cured through a
cost order.

[13] In the present case, the spoliation application concerns the unlawful deprivation
of possession of shares, not their ownership. It is, therefore, critical to ensure that the
matter is adjudicated on the relevant facts and legal principles without deviation into
collateral issues.

[14] The Trust 's founding affidavit pleads that it was unlawfully deprived of
possession of its shares through self -help measures. The respondents, in turn, seek
to justify their actions by submitting that the Trust's alleged ownership was fraudulent.

to justify their actions by submitting that the Trust's alleged ownership was fraudulent.

2 1958 (3) SA 599 (W) at 604A-G.

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However, as the Trust correctly points out, ownership is irrelevant in a spoliation
application.

[15] Despite this, the supplementary affidavit focuses almost exclusively on refuting
the respondents' allegations of fraud and proving ownership. This shifts the focus away
from the core issue of spoliation. The respondents themselves confirm this in their
answering affidavit when they state:

"The allegations [in Ms Reynolds ' affidavit] are intended as expressed in the further
affidavit and that of Mrs Reynolds to meet the incredible allegations of criminality and
untruthfulness on the part of the Respondents in respect of their 'defence' of
ownership."

[16] This acknowledge ment demonstrates that the additional affidavit does not
advance the central issue in dispute. Instead, it introduces collateral and extraneous
matters. The principle of trial by ambush cannot be permitted and applies equally to
unnecessary expansions of the pleadings that do not serve to assist the court in
resolving the actual dispute.
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[17] The legal question before the court is not whether the Trust is the lawful owner
of the shares but rather whether it was unlawfully deprived of possession. The
Constitutional Court in Ngqukumba v Minister of Safety and Security
4 reaffirmed that:

"The essence of the mandament van spolie is the restoration before all else of
unlawfully deprived possession to the possessor . . . The spoliation order is meant to
prevent the taking of possession otherwise than in accordance with the law."

[18] The possession required in spoliation applications is factual possession, not
ownership. In the context of shares, Tigon Ltd v Bestyet Investment (Pty) Ltd 5
establishes that possession entail s being registered in the share register , exercising

3 Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA).
4 2014 (5) SA 112 (CC) para 10.
5 2001 (4) SA 634 (A) at 645.

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rights such as voting and receiving dividends , and the ability to negotiate, pledge or
otherwise deal in the shares.

[19] A spoliation claim is thus concerned solely with whether these incidents of
possession were unlawfully interfered with or not. Courts have consistently held that
even an unlawful possessor is entitled to protection under the mandament van spolie.
The fact that the Trust may or may not have obtained its shareholding lawfully does
not alter the fact that it was in possession of the shares prior to the alleged spoliation.

[20] The affidavit of Ms Reynolds' does not contribute to resolving the core legal
issue. The allegations of fraud, criminality, and ownership disputes are irrelevant to
the issue of spoliation. Accordingly, the supplementary affidavit does not meet the
requirements for admission under Rule 6(5)(e).

[21] If the Trust takes issue with the respondents ' allegations of fraud, the proper
course is to apply to strike out any scandalous or irrelevant matters rather than filing
a further affidavit that derails the focus of the litigation.

[22] The principle, that courts should decide cases on all relevant facts , does not
entitle a party to expand the case beyond its original scope. Allowing an additional
affidavit in this instance would invite procedural chaos, encouraging litigants to
supplement their case beyond the structured three- tier affidavit system continuously.
The legal representatives in this matter have already been notably expansive in their
submissions, at times straying into unnecessary detail. While thorough argument is
always welcome, the risk of overcomplicating proceedings with prolix pleadings must
be carefully managed to ensure that the real issues remain in focus.

[23] T he applicants have failed to demonstrate any exceptional circumstances
justifying the admission of the further affidavit. The evidence sought to be introduced
is not relevant to the issue of spoliation. Moreover, its admission would delay the

is not relevant to the issue of spoliation. Moreover, its admission would delay the
finalisation of what is supposed to be quick and robust proceedings.

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Order
[24] Accordingly, the following order is made:
1. The applicants' Rule 6(5)(e) application is dismissed.
2. The applicants are ordered, jointly and severally, the one to pay
the other to be absolved, to pay the first and third respondents '
costs, including the cost of two counsel , such costs to be taxed
on a scale B.


__________
WJ du Plessis
Judge of the High Court Gauteng Division,
Pretoria

Date of hearing:

24 January 2025
Supplementary heads filed:

31 January 2025 and 7 February 2025
Date of judgment:

15 March 2025

For the applicants:

N Konstantinides SC instructed by Van
Hulsteyns Attorneys

For the respondents:

APJ Els SC and JL Myburgh instructed
by Taljaard & De Oliveira