REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024 -050337
1. REPORTABLE : NO
2. OF INTERE ST TO OTHER JUDGES : NO
3. REVISED: YES
DATE :28-11-25
SIGNATURE OF JUDGES :
In the matter between:
WO GRAHAM N.O.
A GRAHAM N. 0.
HA OU TOIT N.O.
[in their capacities as the trustees for the time
being of the Rodzina Carbonile Trust]
and
First Applicant
Second Applicant
Third Applicant
2
JC REYNEKE First Respondent
GAMAN 50 (PTY) LTD Second Respondent
ELEGANT ELM TRADING (PTY) LTD Third Respondent
RWWINCKLER Fourth Respondent
L CRONJE Fifth Respondent
This Judgment was handed down electronically by circulation to the parties and/or parties'
representatives by email and by being uploaded to CaseLines. The date and time for the hand
down is deemed to be on this 28 day of November 2025
JUDGMENT
T. STRYDOM AJ :
Introduction
[1] This m atter concerns disputes regarding the possession of shares in a
company called Elegant Elm Trading (Pty) Ltd (EET).
[2] The applicants' case is based on spoliation and seeks the restoration, ante
omnia, of the shares held in its name as per EET's share register and an
issued share certificate number 4, from the respondents.
(3] For purposes of convenience, I refer to the first and third respondents jointly
as "the R eyneke respondents" and the second, fourth, and fifth respondents
jointly as "the Gaman respondents".
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The parties:
[4] Applicants are trustees of the Namibian trust, named Rodzina Carbonile Trust.
For purposes of this application, reference is made to Rodzina Carboni le Trust
as "the trust".
[5] The first respondent is Jacobus Cornelius Reyneke, the sole director of EET.
For purposes of this application, he is referred to as "Reyneke".
[6] The second respondent is Gaman 50 (Pty) Ltd, which only became involved
with EET during approximately March 2024. For purposes of this application,
the second respondent shall be referred to as "Gaman ".
[7] EET is the third respondent, the company in respect of which the issues
relating to shareholding are in dispute.
[8] The fourth and fifth respondents are parties who became involved with EET in
approximately March 2024 and were appointed as directors on 20 March
2024. For purposes of this application, they are referred to as "Winckler" and
"Cronje", respectively.
Issues for determination
[9] The parties are ad idem that a company 's share register evidences its
shareholding.
[1 0] The main questions flowing from this are:
a. Who were the shareholders reflected in EET's share register and the
issued share certificates for the period 6 July 2020 to 8 March 2024
(the relevant period), before the issuance of the "rectified' share
register? If the trust was the sole shareholder during the relevant
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period, it follows that it was in possession of the shares and the bundle
of rights attached thereto.
b. If the trust was the sole shareholder during the relevant period,
whether the actions of Reyneke, Winckler and Gaman , by causing
the "rectification" of the existing share register and share certificates
by substituting them with replacement ones, amounted to spoliation,
susceptible to a claim based on the mandament van spolie.
c. Whether a spoliation claim can be effective in circumstances where
the sole shareholding in EET, being 100% of the issued shares in EET ,
has since been replaced by 1000 issued shares, 100 in the name of
Mr Reyneke and 900 in the name of Gaman.
Factual background
[11] The first applicant was desirous of acquiring a South African shelf company,
of which the trust would be the sole shareholder, and requested Mr.Senekal,
of the attorney firm Senekal Simmonds Inc., to assist, during May 2020.
[12} The shelf company was to be a holding company of a Namibian company ,
which was to hold certain immovable properties in a property
development/estate situated in Windhoek, Namibia, known as Am Weinberg.
[13} Senekal instructed Ms . Reynders (an employee of Wehmeyer and Associates,
Chartered Accountants) to assist in rendering company-related services in
acquiring a shelf company and raised the question of the appointment of a
suitable director for such a shelf company and the issuance of share
certificates for the shelf company.
[14}
[15}
Reynders acquired the shelf comp r y, EET , at a cost of R4 ,000.00.
In an email sent by Senekal to the first applicant, dated 18 May 2020, he
recorded:
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"Archie is dit reg so? Dit is die maatskappy wat die eenheid in Am Weinberg gaan
koop en die bunker sal sy enigste aandeelhouer wees . Ek dink nog aan 'n direkteur'
[16] The reference to "die bunker" is a reference to the trust.
[17] The first respondent, having instructed Senekal to obtain the shelf company ,
paid the costs regarding the same.
[18] In relation to these issues, Reyneke's version was that EE T was a shelf
company that was to be acquired on his instructions. He disputed that the trust
engaged the services of the attorney, Senekal, to act on behalf of the trust.
According to him, Senekal was his attorney, secured by him to establish EET.
R eyneke's version would be dealt with below.
[19] It is common cause that Reyneke was nominated to become the first
shareholder and director of EET , and that various corporate activities occurred
on 6 July 2020. In particular:
a. Reyneke signed a document, inter alia, consenting to his appointment
as director of EET.
b. He was issued with 1 ordinary no-par-value share in EET under
certificate number 2.
c. In his capacity as sole director of EET , he signed and adopted a
resolution for the allotment of 99 ordinarily no-par-value shares to
himself under certificate number 3.
d. This resolution is confirmed by Reynders in her affidavit, in support of
the trust's application.
[20] Reyneke, as the sole director of EET , thereafter signed and adopted a
resolution on 6 July 2020, resolving to transfer the total of 100 ordinary no
par-value shares held by him under certificates numbered 2 and 3,
respectively, to the trust.
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[21] This resolution is confirmed by Reynders in her affidavit, in support of the
trust's application.
[22] It is common cause that Reyneke then signed two separate security transfer
forms, indicating the transfer of the 1 share, held under certificate number 2,
and 99 shares, held under certificate number 3, to the trust. Share certificate
number 4 was issued to the trust, and certificate numbers 2 and 3 were
cancelled, which evidenced the trust as the beneficial owner of 100 ordinary
shares in EET.
[23] The two separate security transfer forms and the share certificate number 4
are confirmed by Reynders in her affidavit in support of the trust's application.
[24] On 20 July'2020, all the documents pertaining to the appointment of Reyneke
as director, the transfer of shares from a shelf company holder to Reyneke,
the initial share certificates issued to Reyneke, as well as the subsequent
transfer documents to the trust and share certificate in the name of the trust
were sent by Senekal to Reynders. All such documents were duly signed by
Reyneke.
[25] According to Reyneke , a few months after the "conclusion of the proceedings",
van Straaten (the first applicant's assistant) contacted him and requested the
originals of share certificate number 4, and the CM 42 documents. He stated
further that he initially signed these documents on his iPad device but acceded
to the request and handed the original signed documents to van Straaten. The
contents of the documents were the same as those earlier signed by Reyneke.
[26] According to Reyneke , van Straaten requested the documents to be able to
exercise the "pledge". However, the allegations regarding the "pledge" are
vehemently disputed by the trust, which dispute is confirmed by an affidavit by
van Straaten. The "pledge" will be dealt with below.
[27] These transactions were borne out by the entries made and captured by
Reynders in the electronic share register of EET.
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[28] Reyneke's response to the electronic share register maintained by Reynders
is that it was "dishonestly manipulated' by Reynders, and that she never had
a mandate to do so. These allegations will be dealt with below.
The Companies Act, 71 of 2008 (The Act)
[29] Section 50 of the Act regulates the securities register and numbering. It
provides that a company must maintain a securities register, indicating the
authorized securities, the number of securities issued, the name of the person,
the address of the person, and the number of securities held.
[30] Under section 50(4) of the Act, a securities register maintained in accordance
with the Act is sufficient proof of the facts recorded in it.._ in the absence of
evidence to the contrary. This means that the register is prima facie proof,
which, in the absence of evidence to the contrary.
[31] In case Reynolds updated the security register on or before 1 September 2020
(the first available printed version bears that date), which occurred after
Reyneke signed the two securities transfer forms, evidencing transfer of 100
shares to the trust.
[32] In the block in the security transfer forms, for the signature of the transferor,
Reyneke, it is specifically stated that:
"i!We the undersigned hereby transfer the above securities from the name(s)
aforesaid to the person(s) below or to the several persons named in part B of the
Broker Transfer Forms (CM41) relating to the above security"
[33] Reyneke also signed a share certificate, of 6 July 2020, certifying that the trust
is "the registered proprietor' of the fully paid-up shares, being 100 shares as
per certificate number 4.
[34] In terms of section 51(4) of the Act, a certificate evidencing any certificated
securities of the company serves as proof that the person named therein is
8
the holder of those securities, in the absence of evidence to the contrary. If no
evidence to the contrary is produced, the certificate becomes conclusive proof
of ownership.
[35] Put differently, it means that a share certificate constitutes a prima facie proof
that the named securities holder owns the securities, in the absence of
evidence to the contrary. If there is no evidence to rebut that position, it
becomes conclusive proof.
[36] R eyneke also signed a resolution in his capacity as director of EET , on 6 July
2020, which reads as follows:
"IT WAS RESOLVED THAT
The following shares are herewith transferred
Transferor Transferee Qty
Jacobus Cornelius Reyneke RODZINA CARBON/LE TRUST 100
Confirmation of shareholding after the transfer
Shareholder Quantity Shares
RODZINA CARBON/LE TRUST 100
Signed a correct record
(SIGNATURE Mr Reyneke)
JACOBUS CORNELIUS REYNEKE"
[37] Despite all the documentation having been signed by Reyneke, his signature
not being in dispute, Reyneke alleges that the shares in issue were never
transferred to the trust.
[38) Insofar as he alleges that the above-mentioned documentation does not
correctly reflect the transfer of the securities to the trust, the documentation
constitutes prima facie evidence of the transfer, and the question is whether
Reyneke has produced evidence to the contrary.
"Whether the electronic share register of EET was dishonestly manipulated by
Reynders, as alleged by Reyneke? "
9
[39) On 15 September 2020, Reyneke sent an email to Mr Basch, a chartered
accountant, regarding his appointment as the new auditor. In that email, he
stated the following:
"Please see the FAS of Elegant Elm Trading attached.
The idea is to move this new Shelf Company to you.
It will hold some of the companies in Namibia that will be purchasing some of Archie's
properties in Namibia.
Can you please complete the FAS part for you as the auditor then I will sign so that
they can submit, and then you can take over from there.
I will also send you all the company docs and we could also arrange a quick con call
with Archie to discuss the shareholding and workings etc. The shares was initially in
mv name and then moved to Rodzina Carbonile Trust. (this last part remains under
wraps for now to the outside world where possible)"
[Emphasis added].
[40) The said letter was copied to the First Applicant.
[41) In a follow-up email, dated 15 September 2020, Reyneke sent an email to
Basch, enclosing detailed documentation. Included as part of such
documentation, the CM 42 documents and issued share certificates
confirming that the trust was the sole shareholder of EET.
[42) Reyneke does not dispute the e-mails dated 15 September 2022 sent to
Basch.
[43) Reyneke responded that the aforesaid was simply an explanation provided to
Basch as to the existence of the share certificate in the name of the trust. He
explained further that this certificate was issued to acknowledge "a pledge".
However, no such explanation or reference to "a pledge" is made in the e-mail
communications.
10
[44] On 24 May 2022, Reynolds responded by way of an email to an oral request
from Mr. Vilonel, employed by Senekal Simmonds Inc. The documentation
referred to in the next paragraph was provided by her to Vilonel.
[45] On 24 May 2022, Vilonel forwarded the documentation to the first applicant
and his assistant, van Straaten. Annexed to the email were the following
documents:
a. Printout of a share register, in all respects the same as the previous
version printed on 1 September 2020, but this printed version showed
the date of 24 May 2022, which correlates with the date on which the
request was responded to.
b. Printouts of an unsigned share certificate dated 6 July 2020 and two
unsigned security transfer forms, and a company resolution.
[46] On 23 October 2023 , Reyneke addressed a letter to Reynolds, referring to
documents "received from her", and stating that "the share register requires
correction to accurately reflect the ownership structure." According to the
letter, the share register of EET should only include him as the sole
shareholder, and the share certificate issued for the trust was a "security
arrangement in the event of any unforeseen circumstances affecting him".
According to Reyneke, "the transfer of shares agreement should not have
been recorded in the share register unless a trigger event has happened ."
Immediate attention of Reynolds was required for the "rectification" of the
share register accordingly.
[47] The letter confirmed that the documents received by Reyneke included a
share register, indicating the trust as the sole shareholder, and Reynolds was
requested to "rectify'' the share register. Her authority to do so was not
questioned.
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[48] Despite this request, there is no evidence of any action being taken, let alone
seeking the rectification of the share register, by Reynecke for the period 23
October 2023 until 8 Ma rch 2024.
(49] Accordingly, for the relevant period of approximately four years, between 6
July 2020 and 8 March 2024 , the position relating to the shareholding by the
trust, as sole shareholder of EET, remained unaltered as depicted in the share
register of EET.
(50] On 8 March 2024, Reyneke addressed a letter to Reynolds terminating her
mandate as the appointed company secretarial/public officer, with immediate
effect.
(51] The termination of Reynolds' mandate, per se, indicated an acknowledgment
of the previous existence of her mandate.
(52] Already at that stage, there was communication and cooperation between
Reyneke and Winckler, a director of Garman , who was sent by Reyneke to
collect the share register and company documentation from Reynolds.
Winckler was to pay all outstanding fees owing to Reynolds' auditors' firm.
(53] On 8 March 2024, Winckler attended the offices of Reynolds and was provided
with copies of the documents, inclusive of the share register of EET ,
ma intained by her.
[54] On 27 March 2024, the trust, as the 100% shareholder in EET, delivered a
letter in terms of section 61 (3) of the Act, demanding a shareholders' meeting
to be convened.
(55] On 3 April 2024, Reyneke addressed a letter to the trust, denying that the trust
is the sole shareholder of EET , stating that the security register of EET does
not reflect the trust as a shareholder. No mention was made about the register
having been maintained by Reynolds, or any "rectification" thereof.
[56] During April 2024, the trust launched an application in terms of section 61 (12)
of the Act, requesting the court to order that a shareholders meeting be held.
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The Trust was blissfully unaware that there was tampering with its
shareholding in EET.
[57] In the answering affidavit to the section 61 (12) application, dated 30 April
2024, deposed to by Reyneke, the following information appeared for the first
time:
a. On or about 8 March 2024, Reynolds was removed as EET's
secretary, on which date Winckler attended the office of Ms Reynolds
and took possession of all the company records of EET , including the
records reflecting the trust as the 100% shareholder of EET.
b. On 13 March 2024, EET concluded a share subscription agreement
with Garman, represented by Winckler.
c. On 20 March 2024, Garman was issued with the 900 no-par-value
shares in EET, being 90% of the issued share capital.
d. Share certificate number 4, the same certificate number which was
previously issued to the trust for 100% shares, was now cancelled and
issued to Garman under certificate number 4, now for 900 shares.
e. The previous share certificate number 4, which was held by the trust,
was simply deleted from existence.
f. The previous share certificate numbers 2 and 3, which were
previously replaced by share certificate number 4 issued to the trust,
were now revived (although the previous numbers of shares, per
certificate, inverted) in the name of Reyneke.
g. Reyneke now caused himself to be reflected as the holder of the
remaining 100 shares, 10% of the total shares issued of 1000.
h. On 10 April 2024, Winkler and Cronje were appointed as additional
directors of EET, now nominated by Garman .
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[58] The existing share register of EET , was unilaterally rectified by Reyneke, with
the cooperation of Winckler and Garman, resulting in the same reflecting
Garman holding 900 shares under share certificate number 4, and Reyneke
holding 100 shares under share certificates 2 and 3 in EET. This was done
without even communicating with the trust, in a clandestine manner behind
the trust's back.
[59] The trust share certificate number 4 was deleted from existence and
substituted with the new share certificate number 4 in the name of Garman.
Share certificates number 2 and 3 were revived (although the previous
numbers of shares, per certificate, inverted) in the name of Reyneke.
[60] On the respondents' version, 900 shares were issued to Garman following his
payment of the amount of R500,000.00, on 13 March 2024, to EET in terms
of the subscription agreement. The money was paid into Reyneke's attorney's
account. Reyneke's case is that this was consequent upon a dire need of EET
for immediate cash for legal fees and that the second respondent, Garman ,
was the only short-term investor who was willing to invest the amount of
R500,000.00.
[61] It is noted that at the time of the entering of the subscription agreement with
Garman, for purpose of financing EET's legal fees, there was no litigation or
threat thereof, as the section 61 (3) of the Act demands only came thereafter.
[62] The suggestion by the Gaman respondents that R 500,000.00 was a sufficient
value for the acquisition of 900 shares, in circumstances where the value of
the assets held by the Namibian company, of which EET held all shares,
equated to tens of millions of Namibian dollars, highlights the extent of the
unlawful actions.
[63] Mr Reyneke, Winckler and Garman , by their unlawful actions, foiled the trust's
ability to execute and proceed with its rights as a shareholder, to convene the
meeting which it called for on 27 March 2024, under section 61 (3) of the Act,
meeting which it called for on 27 March 2024, under section 61 (3) of the Act,
and/or to get relief in terms of section 61 (12) of the Act.
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[64] Having been surprised by the aforesaid, it resulted in the trust not proceeding
with the application in terms of section 61 (12) of the Act, as it obviously could
not call for a meeting in the light of the dispute created by "the rectified' share
register.
[65] Accordingly, the trust brought an urgent application, on 21 May 2024, seeking
relief in terms of part A of the application that the share certificate be corrected
forthwith by EET , thus restoring the status quo ante.
[66] The matter was found not to be urgent, and thus the present applications
served before this court on the merits.
[67] Reyneke's case is that share certificate number 4, which was issued in the
name of the trust in respect of 100 shares, during 2020, was based on an
agreement in principle, between him and the trust. He contends that the share
certificate which was issued in favour of the trust, would only serve as security
to the trust. The security is also referred to intermittently as "a pledge".
[68] The version presented by Reyneke, in his letter dated 23 October 2023
addressed to Reynolds, was that only he was to be included in the share
register, as the share certificate number 4 issued to the trust is "a security
arrangement" in the event of unforeseen circumstances affecting him. The
transfer of shares agreement should not have been recorded in the share
register unless a trigger event happened.
[69] It is noted that Reyneke's request for "the rectification" of the share register
was not addressed to the trust, but only to Reynolds, who was expected to
make the rectification without the involvement of the trust.
Conclusions with reference to the share register
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[70] I find Reyneke's explanations relating to the non-existence of the share
register, informing that the trust was the sole shareholder during the relevant
period, unconvincing, untenable, and palpably implausible.1
[71] In this respect, I have no qualm in applying the robust approach in rejecting
the version of Reyneke, contrary to the facts dealt with above. It follows that:
a. The statements made by Mr Reyneke, that he was the one that
required the shelf company, instructed the attorneys and/or Reynolds
to do the necessary, is contrary to the content of the correspondence,
which clearly shows that it was the first applicant who wanted to
establish the trust as a "bunker", who dealt with Senekal regarding
same and who paid the initial account of Reynolds for a shelf
company.
b. Reynecke, in support of his contentions, referred to statements
reflecting invoices issued to EET, annexed to his answering affidavit.
However, a reading of these statements shows that they relate to
secretarial work done by Reynolds during the period 1 September
2020 to 31 October 2020, after the shelf company had already been
established, for which EET would be liable.
c. It cannot be disputed that on 6 July 2020, several corporate actions
were taken, which included a resolution, the signing of transfer forms,
the issuance of share certificates, all signed by no other person than
Reyneke.
d. The content and meaning of the documents cannot be ignored,
especially by the person who confirmed it by attaching his own
signature. All such actions were taken as part of a clear intention to
transfer the shareholding. Nothing in the documents indicates a
pledge or security.
1 See National Director of Public Prosecutions v Zuma 2009 (2) SA 277 SCA at para [26]; National
Scrap Metal v Murray and Roberts (2012] ZASCA (29 March 2012) para [ 21].
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e. Reyneke's attempt to discredit Reynolds, who is merely an employee
of Wehmeyer and Associates, doing secretarial and administrative
functions for companies, is rejected. She has no personal interest in
the trust or EET. The suggestion that the trust persuaded her to
"fabricate" evidence, as part of "dishonest tactics", and that she
unlawfully "manipulated" the electronic copy of the share ledger, is not
borne out by any of the facts, and is unsubstantiated, unwarranted,
and unnecessary. The traverse is rather true, as she correctly
reflected the shareholding of EET, in the name of the trust, after the
transfer forms and share certificates that were issued and signed by
Reyneke. This position remained the same for a period of
approximately four years, until Reyneke decided that the register
should be "rectified', which he unilaterally did after terminating
Reynolds' mandate.
f. The content of the letter, dated 23 October 2023, evidences the fact
that it was acknowledged by Reyneke that Reynolds was in control of
the share register, and that it reflected the trust as sole shareholder,
as he required her to "rectify" the same in the manner dictated to her
by Reyneke. The content of the letter confirms Reynolds' authority, at
that point in time, to have dealt with the administrative function of
maintaining the company's share register. When the share register
was obtained from Reynolds by Winckler on 8 March 2024, it reflected
the trust as a sole shareholder.
g. According to Reyneke, the reason why Mr. Graham (the first applicant)
wanted to ensure that the share certificate was to be issued to the
trust was that Graham wanted to ensure that any new assets which
he may require would be out of reach of his liquidated entities'
creditors. The trust was created for the benefit of the Graham family.
This stated motivation ties in with the earlier correspondence and the
conclusion that the trust never intended to simply give away the
shares to another party.
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h. If one closely analyses the "pledge "version, it simply does not make
any sense. A pledge, in general terms, is when goods, property or
rights are given to another to hold as security, pending the fulfillment
of an obligation. There is no known causa for any pledge pleaded by
Reyneke, such as a loan or the like. The attempt to refer to a causa is
an unconvincing, vague reference to an "arrangemenf' of some sort
(also described by Reyneke's legal representatives as an inchoate
agreement), between the trust and Reyneke, that the shares would be
transferable if a triggering event happened, such as if Reyneke "be hit
by a bus".
i. In general, when shares are pledged, they are not transferred by the
pledgor to the pledgee. They are retained in the name of the pledgor.
j. The version of the share certificates in favour of the trust, having been
issued as "security", which concept is something different than a
pledge, also does not make sense. It is not explained what security is
for what right or obligation, or why the trust needs security of some
sort.
k. Reyneke does not explain why , if there is a no legal causa, would the
Trust be entitled to the shares if he be "hit by a bus", as metaphorically
explained by him. If the shares are in the name of M r Reyneke , and
he was entitled to them, the consequence of Reyneke passing w ill be
that his executor will claim the shares for Reyneke's estate.
I. Furthermore, if this was a "pledge" arrangement, as suggested, why
does Reyneke , after he unlawfully took full control of EET , go and defy
the very arrangement upon which he relies, and issue 900 shares to
Garman , diminishing his own stake in EET to a simple 10% of the
company? This means the shares in "pledge" were discarded, or at
best, that the trust will receive only a diluted 10% of the company in
the event of the triggering event.
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m. The Reyneke respondents argued that the fact that Reyneke was to
be the sole shareholder of the 100% shares, until the triggering event
might have arisen, is on probabilities, supported by the facts that he
signed surety in favour of the Namibian property owning company
(Rainy Day) and also supported by the facts that he addressed various
letters to entities such as banking institutions, informing them that he
is the sole shareholder of EET.
n. Whilst probabilities are not relevant, even if considered, the signing of
the surety for a different entity was, according to the trust at no risk
considering the value of the assets in that company , and Reyneke's
outward representations cannot trump the undisputable facts as per
the share register and share certificates.
o. Fact is that the share register, held and maintained by Reynolds,
correctly reflected the sole shareholding of 100% shares of the trust
until the unilateral "rectification" thereof.
p. The mere attempt to say that the share register was 'rectified"
acknowledges the fact that there was an existing share register,
showing the trust as sole holder of the shares, which was not
acceptable to Reyneke , as he changed it unilaterally, ignoring the fact
that without the consent of the trust or the intervention of the Court,
same could not occur. Reyneke took the law into his own hands in
doing the "rectification" action.
q. Reyneke conveniently ignores the wording of the documentation that
he signed, which stated clearly under his own signature that the
shares were transferred to the trust. In the face of the documentation
constituting prima facie proof, Reyneke alleges that the transfer never
occurred and that the documentation was not what it purports to
reflect.
r. The Reyneke respondents argued that Reynolds never had a
mandate to act as the "secretary of the company". However, she
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always played the role of doing secretarial services for the company,
up to the point when her mandate was terminated by Reyneke on 8
March 2024. She did work acquiring the shelf company, captured the
initial shareholding of Reyneke in the first shareholder register (with
no protestation by Reyneke}, and did work during the period 1 August
to 30 September 2020, as borne out by statements attached and
supplied by Mr Reyneke. The copy of the Share Ledger annexed as
annexure FA9 to the founding affidavit bears the date on the bottom
left-hand corner of Tuesday, 1 September 2020, either the date of
creation or the producing (printing) of the document. The accusations
levelled at Ms Reyneke of being dishonest or fraudulently
manipulating the Share Ledger are unfounded and rejected. Why
terminate her mandate on 8 March 2024, if she or her employer had
no mandate at all?
Whether the principles of mandament van spolie applies?
[72] The trust relies on the case of Tigon Ltd v Bestyet Investments (Ply) Ltd,2
which is a precedent for the case that the expunging of shares in a share
register is a case where the mandament van spolie finds application. The
following appears from the case page 642 E To 643 C:
"If we are dealing with an incorporeal right, then what Bestyet had to prove was that
it had quasi-possession of the right in the sense that it actually or actively
(daadwerklik) exercised that right and that further exercise of the right or rights has
unlawfully been prevented by Tigon's resort to self-help. It did not have to prove the
physical existence of the right, only the factual position.
To determine whether Bestyet proved that it had quasi-possession of the rights or
rights, a closer look needs to be taken at the rights or rights enjoyed as a holder of
shares. In Standard Bank of South Africa and another v Ocean Commodities Inc and
others 1983 (1) SA 276 (A) at 288H Corbett JA (as he then was) said the following:
2 2001 (4) SA 624 (N)
and
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'A share in a company consists of a bundle, or conglomerate, of personal
rights entitling the holder thereof to a certain interest in the company, its
assets and dividends ... Normally, the person in whom the share vests is the
registered shareholder in the books of the company and has issued to him
a share certificate specifying the share or shares held by him'.
'It seems to me that a distinction (not always recognized) may be drawn
between the share itself, which is an incorporeal movable entity, and the
bundle of personal rights to which it gives rise. The argument that we are
here dealing with purely personal rights to which the protection of the
mandament van spolie does not extend is, therefore, not correct. The
incorporeals, consisting of the shares, are, by statute, movable property, and
possession is exercised by the holder negotiating, pledging, bequeathing, or
otherwise dealing with the shares. The holder also exercises possession by
bein re istered in the re ister of members and thereb bein able to vote
and receive dividends. Mr Brett's s bmission that the removal of a
shareholder's name from the register /~aves the rights of such shareholder
intact and unaffected cannot be correct. The holder has been denied all the
benefits of registration as a member. Tigon went a step further, however, and
cancelled or expunged the very issue of the shares, effectively depriving the
holder of all the rights of beneficial use"'.
[Emphasis added].
[73] It was argued by both the Reyneke respondents and the Gaman respondents
that if the court should find that the trust was the shareholder of the 100%
shares as per the share register on 8 March 2024, the trust did not show that
it was in quasi-possession as it did not exercise its rights in terms of the
shareholding.
[74] I do not agree with this submission, as upon a reading of the Tigon case
above, the mere fact that the trust appeared in the share register is sufficient
above, the mere fact that the trust appeared in the share register is sufficient
to show quasi-possession. However, even if this conclusion is incorrect, the
undisputed evidence is that the trust exercised its rights on 26 March 2024 by
requesting a meeting of shareholders in terms of section 62(3) of the Act.
21
Spoliation
(75] Being an application based on the mandament of spolie, I need only concern
myself with the question of possession (inclusive of quasi possession).
[76] The trust was in peaceful and undisturbed possession of the shares and the
bundle of rights associated with the same , as confirmed by share certificate
number 4 and the content of the then-existing share register.
[77] The trust was in sole possession of the entire issued share capital of EET ,
comprising 100% ordinary shares.
(78] The trust enjoyed all the entitlements which the bundle of rights of
shareholding conferred upon a holder of shares registered in the share
register of EET.
(79] During the period 8 March 2024 to 20 March2024, the trust's possession was
interfered with unlawfully by the Reyneke respondents and the Garman
respondents, and the effect of the interference was that:
a. The trust was deprived of its peaceful and undisturbed sole
possession of the entire issued share capital of EET.
b. The trust was denied its legal entitlements and rights as holder of the
shareholding.
c. The trust was removed from the share register after the unlawful
alteration of the company records, as the trust's shareholding was
eradicated from the records.
22
[80] The "rectification "of the share register was effected unilaterally and unlawfully,
without the trust's consent or a court order, 3 in a clandestine manner behind
the trust's back.
[81] The unilateral action of persons removing the name of a shareholder from a
share register and stripping that shareholder of all rights and privileges
associated with the share or shares it held constitutes an act of spoliation.4
[82] The reason behind the practice of granting spoliation orders is that no one
should be allowed to take the law into their own hands and to dispossess
another illicitly of possession of property or rights.
[83] If a person is dispossessed of his property or rights, the court can summarily
restore the status quo ante, it will do so before any enquiry or investigation
into the merits of the dispute.
[84] In the process of "rectification", Reyneke reissued previously cancelled share
certificates numbers 2 and 3 in his own name (which were previously
cancelled and superseded by share certificate 4), expunged share certificate
4, issued previously in favour of the trust, and created 900 new substituting
shares issued to Gaman.
[85] The issuing of the new 900 shares and allocation of shares in terms of the
subscription agreement to Garman were done as a result of Reyneke having
unlawfully acquired full control of EET , thereby circumventing the requirements
of section 39(2) of the Act and article 2.1 (3) of the MOI.
[86] In terms of section 39(2) of the Act, each shareholder has a right of
preemption, that is, a company that issues new shares must offer those shares
to existing shareholders and allow them to subscribe to it.
3 See Tigon Ltd V Bestyet Investments (Pty) Ltd 2001 (4) SA 634 (N) at 645.
4 See: Rooibokoord Sitrus (Edms) Bpk v Louw Creek Sitrus kooperasie Bpk 1964 (3) SA 601 (T) at
605 B; Walt v Sea Plant Product Ltd 1999 ( 4) SA 443 (C) at 453 C -Confirmed on appeal 2000 ( 4) SA
711 (SCA); Tigon Ltd v Bestyet lnvetments (Pty) Ltd (supra) at 645;
23
[87] These rights of pre-emption were also enshrined in article 2.1 (3) of the
company MOI.
[88] Winckler, representing Garman , was aware that the share register indicated
the trust as the sole shareholder on 8 March 2024, and that Reynolds'
mandate was terminated. He assisted Reyneke in collecting the company
records on 8 March 2024, and he was the one who offered Reynolds payment
for all outstanding fees. Being aware of the changes in the shareholding by
Reynolds, the Gaman respondents considered it appropriate to seek legal
advice regarding the lawfulness of entering into the subscription agreement
on 13 March 2024, during the period of a mere 5 days after the documents
were collected and unilateral changes to the shareholding were made ,
unlawfully allowing Reyneke full control of EET.
[89] Winkler was also aware of the purpose of advancing monies to EET, to be a
type of war chest for litigation, ostensibly to protect EET. This is a clear
indication of Mr Winkler being aware of the disputes looming relating to the
shareholding in EET.
[90] The Garman respondents were so closely associated with the actions of the
spoliation by Reyneke that their actions can be regarded as part and parcel of
the wrongful deprivation of the trust's sole shareholding in EET, and all rights
attached to it. The unlawful and wrongful deprivation actions were all
concluded by the replacement of the trust's sole shareholding and
shareholders' control, with the replacement shares issued to both Reyneke
and the Garman. This allowed the Garman to have majority control of the
shareholding in EET.
[91] Even if it be argued that the aforesaid conclusion is incorrect, and that only
Reyneke committed the spoliation, the actions of Reyneke, unlawfully and
wrongfully depriving and appropriating the trust's sole shareholding and rights
attached thereto, gave rise to a further string of unlawful actions, not only
depriving the trust from its sole shareholding, but also unlawfully allowing new
depriving the trust from its sole shareholding, but also unlawfully allowing new
shares to be issued of which 900 shares were transferred to Gaman , and 100
shares were issued to Reyneke himself.
24
[92) The shares register must be reinstated to the trust as the sole shareholder of
EET , and the records of EET need to be restored to the position that they were
prior to the respondents conducting their unlawful and wrongful actions.
[93) The trust must be reflected as the sole shareholder of 100 shares in terms of
the original certificate number 4, which should be reinstated.
Whether the changing of the shareholding had the result that the status quo ante can
not be achieved?
[94) Both the Reyneke respondents and the Garman respondents argued that,
even if there was spoliation, the trust cannot be placed back in the position it
was before the unlawful conduct of spoliation. They argue that the 100%
shares, previously held by the trust as the sole shareholder, were replaced by
a new shareholder regime.
[95] Apart from the aforesaid and arising from the corporate actions of Reyneke,
the balance of power was shifted, in that Winckler and Cronje became the co
directors together with Reyneke.
[96) This was all done based on the "rectified' share register, unlawfully giving
Reyneke and Garman the right to appoint new directors.
[97) The respondents referred to Tswelopele Non-Profit Organisation and others v
City of Tshwane Metropolitan Municipality and others, paragraphs [23) and
[24),5 where the court held as follows:
"[23] But the heavy, albeit not universal, preponderance of academic
commentators disfavoured the way the mandament was extended
in Fredericks, and in Rikhotso v Northcliff Ceramics (Pty) LtdH Nugent J held
that a spoliation order cannot be granted if the property at issue has ceased
to exist: the mandament has been received into our law as a possessory
5 2007(6) SA 511 (SCA).
25
remedy, and not as a general remedy against unlawfulness. He observed
that the issue of the mandament is a preliminary and provisional order, so
that the assumption that underlies it is that the property in fact exists and
may be awarded in due course to the properly entitled party. Since
possession cannot be restored by substitution, the mandament could not be
granted-1-1 Nugent J concluded:
'It was submitted that the conclusion to which I have come would encourage
the destruction of property in the course of spoliation. I do not think that is
correct. I do not suggest that the law countenances wanton destruction, nor
that it does not afford a remedy. Remedies to discourage such conduct exist
in both the civil and the criminal law. My conclusion is only that the mandament
van spolie is not that remedy. 'J§
[24] The doctrinal analysis in Rikhotso is in my view undoubtedly correct. While
the mandament clearly enjoins breaches of the rule of law and serves as a
disincentive to self-help, its object is the interim restoration of physical
control and enjoyment of specified property - not its reconstituted
equivalent. To insist that the mandament be extended to mandatory
substitution of the property in dispute would be to create a different and wider
remedy than that received into South African law, one that would lose its
possessory focus in favour of different objectives (including a peace-keeping
function)."
[98) In the Tswelopele, there was a physical destruction of the spoliated property,
and it was not a case of an incorporeal right being spoliated. In the present
circumstances, the illicit deprivation can simply be undone by reinstating the
previous shareholding and sole shareholders' control as part of the incorporeal
rights to the trust. For restoration of incorporeal rights, it inherently means
correcting the records to reflect the legal reality which was unlawfully altered.In
the present circumstances, the shareholding was not destroyed, like a
the present circumstances, the shareholding was not destroyed, like a
building, but it was unlawfully reconfigured.
[99] I am satisfied that the trust is entitled to restoration to its previous position as
the sole shareholder of the 100% shares issued in EET, and that the position
should be restored ante omnia.
26
[100] To ensure effective, enforceable, and immediately capable of enforcement, an
order should be granted that not only should the share register be rectified to
the position before collection on 8 March 2024, but all company records should
be altered to the pre-8 March 2024 position. This means that the appointment
of the fourth and fifth respondents would be of no force and effect. This is done
to fulfill the judicial function in an orderly and effective manner in the interests
of justice.
[101] This judgment does not pronounce on Garman's right, if any, to claim any
monies paid to EET or any other party, based on any cause of action that may
exist, if so advised.
Costs:
[102] The costs order should be granted in favour of the successful party.
Order
In light of the above, I make the following order:
[1] The first and third respondents are directed to forthwith and within 10 (ten)
days of the date of this order, take all such steps as are necessary to rectify
the share register of the third respondent to accord with the document
attached, marked "A ", being the share register of the third respondent as it
existed immediately before the collection thereof by the fourth respondent
from Reynolds on 8 March 2024.
[2] All entries made in the share register of the third respondent after 8 March
2024, which are inconsistent with the position as set out in annexure "A ", do
not form part of the third respondent's share register and are of no force and
effect.
27
[3] All company records of the third respondent created on or after 8 March 2024,
which altered the records of the third respondent from how they existed
immediately before the collection of the share register by the fourth
respondent from Reynolds on 8 March 2024, including in respect of the first,
second, fourth and fifth respondents, do not form part of the third respondent's
company records and are of no force and effect.
[4] The first respondent and second respondent should pay the costs of this
application, jointly and severally, the one paying the other to be absolved, on
a party and party scale, the appropriate scale being Scale C.
Appearances
STRYDOMAJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the App licants: N . Konstandinides SC
Instructed by: Van Hu lsteyns Attorneys
For the First and Third Respondents: APJ Eis SC and J Myburgh
Instructed by: Taljaard De Oliveira Attorneys
For the Second, Third and Fourth Respondents: B Swa rt SC
Instructed by:
Date of Hearing:
Date of Judgment:
DLBM Attorneys
18 and 19 November 2025
28 November 2025
28
ELEGANT ELM TRADING (PTYJ LTD
I Sharcholdor
DENNIS JACOBUS BISHOP
PO BOX ~~39. ILlOVO. JOHA NNESBURG
GAUTENG. 2115
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JACOBUS CORNELIUS REYNEKE
PO BOX 173 \/'/APADRANO. 0031
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Share Ledger
SHARES ACQUIRED SHARES TRANSFERRED
Data C.rt.No Tninsno.
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