Yitbarek Yemanu Tekie AND Gathering Investments (Pvt) LTD V ALEX Kirkman AND JOHN Taylor AND Chipo N Mubaiwa AND Patrick Macmanus AND GTS Security (Pvt) LTD AND Feedmix LTD

### Preamble
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HH 129-21
HC 151/21
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YITBAREK YEMANU TEKIE

and

GATHERING INVESTMENTS (PVT) LTD

versus

ALEX KIRKMAN

and

JOHN TAYLOR

and

CHIPO N MUBAIWA

and

PATRICK MACMANUS

and

GTS SECURITY (PVT) LTD

and

FEEDMIX LTD

HIGH COURT OF ZIMBABWE

CHINAMORA J

HARARE, 10 March 2021 and 25 March 2021

Urgent chamber application

Mr A Moyo with Mr G Sithole and Mr N Chidembo, for the applicant

Adv F Girach, for the 1st and 2nd respondents

Adv L Uriri, for the 3rd and 4th respondents

Adv T Zhuwarara, for the 6th respondent

No appearance for 5th respondent

CHINAMORA J:

Introduction

On 27 February 2021, the applicants lodged an urgent chamber application, whose provisional order reads:

“INTERIM RELIEF GRANTED

That pending the confirmation or discharge of this provisional order, the applicants are granted the following relief:

The 1st, 2nd, 3rd, 4th and 5th respondents be and are hereby ordered, upon service of this order, to immediately restore to the 1st applicant access, possession and/or occupation of the 6th respondent’s business premises, namely, Stand 524 Cleveland, Mutare Road, Msasa, Harare, and 1st applicant’s offices located therein, failing which, the Sheriff of the High Court be and is hereby authorised to assist the 1st applicant to recover access, possession and/or occupation thereof.

The 1st, 2nd, 3rd and 4th respondents be and are hereby ordered, upon service of this order, to immediately restore to the applicant full access to the 6th respondent’s email servers and related electronic systems thereof.

Pending finalisation of the proceedings under Case No. HC 91/21 and the present, the 1st, 2nd, 3rd and 4th respondents, either personally or through their employees, assignees, agents and contractors, including but not limited to the 5th respondent, be and are hereby interdicted from:

summarily disturbing and/or barring the 1st applicant’s peaceful enjoyment, possession and/or occupation of the 6th respondent’s business premises, namely, Stand 524 Cleveland, Mutare Road, Msasa, Harare, and 1st applicant’s offices located therein, unless on the strength of an order of a competent court; and/or

summarily disturbing and/or revoking the 1st applicant’s access to the 6th respondent’s email services and related electronic systems unless on the strength of an order of a competent court.

The 1st, 2nd, 3rd and 4th respondents shall jointly and severally pay costs of suit on a legal practitioner and client scale”.

By way of final relief on the return date, the provisional order is couched thus:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made on the following terms:

It is ordered that the 1st, 2nd, 3rd and 4th respondents’ conduct of barring the 1st applicant from accessing the 6th respondent’s business premises at Stand 524 Cleveland, Mutare Road, Msasa, Harare, and/or possession and/or occupation of the 1st applicant’s office located therein, with the aid of the 5th respondent, in the absence of any valid court order amounts to unlawful self-help and is therefore invalid and is hereby set aside.

The 1st, 2nd, 3rd and 4th respondents be and are hereby interdicted from barring, either personally or through their employees, assignees, agents and contractors, including but not limited to the 5th respondent, the 1st applicant from accessing, possessing and/or occupying the 6th respondent’s business premises Stand 524 Cleveland, Mutare Road, Msasa, Harare without a valid order of court.

The 1st, 2nd, 3rd and 4th respondents be and are hereby interdicted from revoking, either personally or through their employees, assignees, agents and contractors, the 1st applicant’s access to the 6th respondent’s email servers and related electronic systems without a valid order of court.

The 1st, 2nd, 3rd and 4th respondents shall jointly and severally pay costs of suit on a legal practitioner and client scale”.

The matter was placed before me on 3 March 2021 and, with the agreement of the parties, I postponed the hearing to 10 March 2021, with directions that the applicants file an Answering Affidavit. I further directed that all parties should file heads of argument before the hearing date. On 10 March 2021, I heard argument from the parties and reserved judgment. I now deliver my judgment with reasons.

Preliminary points

Five points in limine were raised by the 1st to 4th respondents, namely:

(a) that the matter was not urgent;

(b) that the 2nd applicant was not properly before the court;

(c) that there had been a misjoinder of the 1st to 4th respondents;

(d) that the court should not interfere with the internal affairs of a company;

(e) that paragraph 9.3.4.5 and Annexure “Q” of the Answering Affidavit should be struck off as that paragraph and the annexure introduced new matter which should have been in the Founding Affidavit.

On its part, the 6th respondent raised two preliminary points, viz, that the matter is not urgent and that the form of application used by the applicant is wrong, rendering the application fatally defective. I will add the last point as (f) to the 1st to 4th respondents’ points in limine [listed from (a) to (e) above]. The parties elected to argue the preliminary points and the merits at the same time. They first addressed the objection to paragraph 9.3.4.5 and Annexure “Q” of the Answering Affidavit. After intense argument, the parties agreed to have Annexure “Q” expunged from the record and paragraph 9.3.4.5 amended by the deletion of the following phrase: “especially in circumstances where I had advised him of this breach as early as 3 June 2020 as can be gleaned from my letter annexed hereto marked “Q”. This objection need not detain me in light of the alteration of paragraph 9.3.4.5 and expungement of Annexure “Q” from the record by consent of the parties.

In respect of urgency, the 1st to 4th respondents argued that the 1st applicant and the 6th respondent’s board have been at loggerheads since December 2020. They argued that a motion to remove the 1st applicant was moved in January 2021 in terms of the Companies and Other Entities Act [Chapter 24:31] as read with the 6th respondent’s articles of association. The contention continued that the motion to remove 1st applicant was passed on 18 February 2021, the 1st applicant was aware that he had been removed as a director of the 6th respondent, and that his right of access had been terminated. The 1st to 4th respondents, therefore, asserted that the 1st applicant should at this juncture have approached the courts to suspend the enforcement of the resolution to remove him as director. As a result, they submitted that the matter was not urgent.

In response, the 1st applicant answered that the urgency was not self-created. He submitted that he was forcibly barricaded and locked out from accessing the business premises of the 6th respondent, including his office. In addition, the 1st applicant argued that, given the pending disputes between the parties, he did not anticipate that the 1st to 4th respondents would remove him from the premises and his office through self-help. Further to that, the 1st applicant submitted that the minutes of the meeting of 18 February 2021 were only communicated to him on 23 February 2021. He added that the resolutions that were passed were challenged on 25 February 2021. Consequently, the 1st applicant submitted that the matter is urgent since he had treated the matter urgently by filing the urgent chamber application on 27 February 2021. He therefore moved for this point in limine to be dismissed.

The next argument they made was that the 2nd applicant was not properly before the court, because the 1st applicant was neither a shareholder nor director of the 2nd applicant and could not sign a resolution in that capacity. That resolution, it was submitted, was a nullity and should be struck out. It was further argued that, as the 1st to 4th respondents are board members of the 6th respondents, they made decisions which resulted in this application in that capacity. Contrary to these submissions, the 1st applicant contended that he was the “beneficial owner” of the 2nd applicant, and he relied on a written agreement he entered into with the 2nd respondent. He argued that the 2nd respondent ceded all his rights, title and interest in the Grathing Trust, which trust wholly owns the 2nd applicant. It was argued that the 2nd respondent’s contention that the agreements were cancelled was an issue pending determination in a different forum. The said agreement is attached to the urgent chamber application marked “B2”. For these reasons the 1st applicant maintained that the 2nd applicant was properly before the court, and asked the court to dismiss this preliminary point.

It was added that the 1st to 4th respondents were wrongly joined as parties to these proceedings, because the decisions remained those of the 6th respondent. The 1st applicant’s position was that the legal basis for the 1st to 4th respondents to hold themselves as directors of the 6th respondent was being contested in another forum. He went to argue that the decisions they took as directors of the 6th respondent which have given rise to this application are not valid decisions of the 6th respondent. In addition, he submitted that no cause or matter is defeated by reason of misjoinder, and moved for the dismissal of this point in limine.

Additionally, the 1st to 4th respondents contended that the position of the law is that courts should not interfere in the internal affairs of a company. It was submitted that the present application was an effort by the 1st applicant to get this court to meddle in 6th respondent’s internal affairs. This argument was premised on the suggestion that the 1st applicant had been properly removed by the company and had no right to be on the 6th respondent’s premises. On this basis, they prayed for the dismissal of the application. In response, the applicants submitted that the rule against interference in internal affairs of a company had exceptions, and that this dispute presented exceptional circumstances. It was submitted that the 1st to 4th respondents had discarded due process and taken the law into their hands, despite the existence of disputes between the parties. The argument proceeded that, where there was a legitimate complaint that the respondents have ignored the dictates of the law, there is a justified basis for the courts to intervene. Since the relief sought was meant to restore the status quo ante until the determination of the disputes between the parties, the court could justifiably interfere with 6th respondent’s affairs. Again, the 1st applicant asked the court to dismiss this point in limine.

The 6th respondent raised the objection to the form of application used by the applicants, and argued that the application was fatally defective for that reason. Regarding this argument, the applicants submitted that this court should not prefer form over substance. In addition, they contended that the respondents have not indicated the prejudice they have suffered as a result of the use of the wrong form. It was argued that the objection was feeble not dispositive of the matter, and should be dismissed.

Submissions on merits of application

The 1st applicant argued that he had peaceful and undisturbed access, possession and occupation of and to the 6th respondent’s business premises and to his office located on those premises. He submitted that by virtue of the letter dated 24 February 2021 from the 1st to 4th respondents, the 1st applicant was barred from attending the said business premises and getting into his office, which instruction is being enforced by the 5th respondent. The 1st applicant submitted that the letter of 24 February 2021 confirms that he had peaceful and undisturbed access, possession and occupation, since from the date of the letter he was not allowed access onto the 6th respondent’s business premises “with immediate effect”. He continued that the denial of access, possession and occupation was forcibly without due process, and with the 5th respondent’s assistance. The 1st applicant submitted, in this respect, that there was no valid order of court prohibiting him from accessing or occupying the premises in question. He further submitted that the shareholder disputes between the parties were pending resolution in other forums and nothing justified the action taken by the 1st to 4th respondents. The 1st applicant contended that he had been despoiled by the 1st to 4th respondents and was entitled to the relief he was seeking. He argued that he was the beneficial owner of 50% of the 6th respondent, and that the pending arbitration proceedings would confirm this shareholding. The 1st applicant submitted that the meeting of 18 February 2021 where he was removed as a director was flawed thereby making its resolutions null and void. Thus, he contended, his access, possession and occupation of the 6th respondent’s business premises and his office could not be impeded by illegal resolutions and flawed processes. Additionally, the 1st applicant submitted that, even assuming that the resolutions on 18 February 2021 were validly passed, the 1st to 4th respondents had no right to act outside the law.

The response of the 1st to 4th respondents on the merits of the application is that there is no basis to the relief sought, because the decision of the 6th respondent was properly exercised. They emphasised that the 1st applicant was removed as a director of the 6th respondent at its extraordinary general meeting on 18 February 2021. It was their contention that as a result of that decision (which has not been set aside), the 1st applicant’s entitlement to the use of the 6th respondent’s property, its amenities and email facilities ceased. They submitted that the 1st applicant was a former director and could not insist on coming to his office, and had not sought an order to suspend the operation of the resolution made on 18 February 2021. The 1st to 4th respondent submitted that the 1st applicant had not been forcibly barricaded or locked out, while admitting that he had been denied access to the 6th respondent’s business premises as “he was no longer entitled to have such access” from 18 February 2021.

Analysis

I will start by dealing with the points in limine. In terms of the Rules, this court enjoys a discretion in urgent applications to authorise a departure from prescribed procedures if a party demonstrates that the matter is urgent. (See Kuvarega v Registrar General and Another 1998 (1) ZLR 188). In casu, the 1st applicant testified in his affidavit that he sought the assistance of the court when he was prevented from accessing the 6th respondent’s premises by letter dated 24 February 2024 and by the enforcement of this instruction through the 5th respondent. The 1st applicant also testified that he did not expect the 1st to 4th respondent to resort to self-help, even assuming that the resolution passed on 18 February 2021 was valid. His complaint is that due process ought to have been followed and a court order obtained. It was argued, in any event, that the resolution passed removing the 1st applicant as a director of the 6th respondent was not properly passed, and that his removal could not be based on an invalid resolution. I have looked at the circumstances of this case, particularly, the issue of when the need to act arose, and am satisfied that the matter is urgent and justifies consideration as such. It is also pertinent to note that a spoliation application is by its very nature urgent, given that peaceful and undisturbed possession has been disturbed without due process. The position of the law was aptly put by KUDYA J (as he then was) in Gifford v Muzire & Ors 2007 (2) ZLR 131 (H) in the following words:

“It seems to me that the preservation of law and order and the prevention of self-help in the resolution of disputes place an application for spoliation in this unique position. To wait for the ordinary time limits and procedures to apply would undermine these salutary aims and encourage the usurpation of the due process by the strong and well connected at the expense of the weak and disadvantaged. In determining whether a matter involving spoliation is urgent, the court will in the exercise of its discretion obviously be guided by the specific averments of fact that are made in the particular case before it.” [My own emphasis].

I therefore hold that this matter is urgent and dismiss the point in limine based on lack of urgency.

I have considered whether or not the 2nd applicant is properly before this court. The papers before me show that the 2nd respondent resigned from the 1st applicant and the explanation by the 2nd respondent that the cession agreement was cancelled is not convincing.

The next point in limine that I have to consider is whether there has been a misjoinder of the 1st to 4th respondents. The 1st to 4th respondents submitted that they acted as directors of the 6th respondent and, as such the decisions they made were those of the 6th respondent. On the other hand, the applicants contended that the status of the 1st to 4th respondents as directors of the 6th respondent was subject of challenge in arbitration proceedings. In my view, Rule 87 of the High Court Rules 1971 resolves this preliminary point. Rule 87 (1) makes it clear that no cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party, the court being enjoined in its  discretion to determine the issues or questions in dispute in so far as they affect rights and interests of persons who are parties to the matter. In addition, Rule 87 (2) (a) provides that at any stage of the proceedings the court may on such terms as it thinks just and either or its own motion or on application allow a person who has been improperly or unnecessarily joined to cease to be a party. I therefore find no merit in the argument that a misjoinder of the 1st to 4th respondents ipso facto renders the application fatally defective. I dismiss this point in limine.

I turn to consider the contention that this application amounts to inviting this court to interfere in the internal affairs of a company, which the law proscribes. The rule, in my view, is not an absolute rule but allows for exceptions.  The general rule was stated by DOWLING J in Yende v Orlando Coal Distributors (Pty) Ltd 1961 (3) SA 314 (W) as follows:

“In general, the policy of the courts has been not to interfere in the internal domestic affairs of a company, where then company ought to be able to adjust its affairs itself by appropriate resolutions of a majority shareholders.”

The policy has been followed in a number of cases in this jurisdiction. For example, see Matanda and Others v CMC Packaging (Pvt) Ltd and Others 2003 (2) ZLR 221 (H) at 224 A-B and Zvandasara v Saungweme & Ors HH 108-18. I find nothing in this general rule that precludes a member of a company from approaching the court for redress where the law has been violated or disregarded to the prejudice of his or her rights. In the context of this case, it was argued for the 1st applicant that this case calls for the intervention of this court because the 1st to 4th respondents denied him access to the business premises where he was operating from without following due process. In such a case, it was submitted, the interference by the court in the internal affairs of the company was justified. I am persuaded by this argument. In coming to this conclusion, I am conscious that the general rule has largely been applied in cases where a member of a company complained to the court, in terms of section 196 of the old Companies Act [Chapter 24:03], that the affairs of a company were being conducted in a manner oppressive of the minority including himself. In my view, that is the context in which this case ought to be considered. I do not believe that the general policy against interference with the internal affairs of a company was meant to exclude courts from determining cases where a person has been despoiled without due process being followed. I must observe that, I am concerned about a litigant taking a point in limine based on the general rule, because evidence would be required to preclude the application of exceptions. In my view, it is not a point that should not be taken in limine. Let me now consider whether or not an act of spoliation occurred.

Spoliation

The application before me is principally one for a spoliation order. It was argued for the 1st applicant that he was despoiled by the actions of the 1st to 4th respondents of barring him from accessing or occupying the 6th respondent’s premises and his office which is housed on those premises. In addition it was submitted that the denial of access to the 6th respondent’s email facilities and electronic systems constituted an act of spoliation. It was further contended that prior to the 1st to 4th respondents’ letter of 24 March 2120, the 1st applicant had peaceful and undisturbed access, possession and/or occupation of the said premises and his office.

The contrary argument of the 1st to 4th and 6th respondents was that no act of spoliation took place since the 1st applicant was prevented from entering the 6th respondent’s premises and his office following a resolution passed on 18 February 2021 removing him as a director of the 6th respondent. The said respondents while denying that the 1st applicant is entitled to the relief of spoliation, accept that he was “barred from accessing the premises by the 6th respondent”. [See para 101 of the Opposing Affidavit, page 32 of the record]. It is the contention of the respondents that by virtue of the decision to remove him as a director, the 1st applicant could be barred from accessing or occupying the 6th respondent’s premises without the need for a court order.

The law on mandament van spolie is settled in this jurisdiction and elsewhere. In Botha & Anor v Barret 1996 (2) ZLR 73 (SC) at 79, GUBBAY CJ observed:

“It is clear that in order to obtain a spoliation order two allegations must be made and proved. These are:

that the applicant was in peaceful and undisturbed possession of the property; and that,

that the respondent deprived him of the possession forcibly or wrongfully against his consent”.

The law makes it clear that once an applicant demonstrates that he was in peaceful and undisturbed possession, and that the respondent disposed him forcibly and wrongfully without his agreement, then spoliation is established. In Chisveto v Minister of Local Government 1984 (1) ZLR 248 (H) this court appositely stated:

“The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party … lawfulness or otherwise of the applicant’s possession of the property does not fall for consideration”.

I am therefore not satisfied that the passing of the resolution removing the applicant as a director of the 6th respondent was on its own sufficient without further legal processes to bar him access to the premises where he operated from. If that was to be the case, it would mean that a landlord who gives notice to a tenant to vacate the leased premises would be entitled to bar the tenant access to such premises at the expiry of the notice period. The view I take is that the passing of the resolution to remove the 1st applicant as a director is one part of the process. Should he not leave on his own volition, it is not open to the respondents to act on their own to deny him access without a court order.

The argument that the applicant has never been in peaceful and undisturbed possession seems to me to be a tenuous one. It is clear that before the letter of 24 February 2021 that the 1st applicant had unhindered access to the 6th respondent’s business premises and his office, and enjoyed undisturbed access to the email and electronic facilities at these premises. The lawfulness or otherwise of his possession or use of the available amenities and email facilities is not a matter I am required to consider in a spoliation application. My attention was drawn to the averment [in para 15.3 of the Founding Affidavit, at page 23 of the record] that he had a prima facie right to continued access. It was argued on the basis of that the 1st applicant had failed to establish a clear right within the contemplation of Blue Rangers Estates (Pvt) Ltd v Muduviri 2009 (1) ZLR 376 (SC). However, what is clear from this case is that a spoliation order should not be granted on the evidence of a prima facie case. To me, the primary determinant is the evidence, i.e. whether it shows that a clear right has been demonstrated. I do not think that a court should disentitle a litigant to the relief of spoliation if the evidence supports such an outcome, simply because he says that he has a prima facie right. I therefore am not persuaded that a case for the relief sought has not been shown.

As I have come to the conclusion that the applicants have established entitlement to a spoliation order, I do not consider it necessary to interrogate whether or not the case for an interdict has been made. The order I intend to grant is a final order. It is final in the sense that the status quo ante has to be restored, but does not prevent the 1st, 2nd, 3rd, 4th and 6th respondents from obtaining an appropriate court order before denying the 1st applicant access, possession and/or occupation of the 6th respondent’s premises and his office. Once the two requirements for the grant of mandament van spolie are established I am enjoined to grant relief.

Disposition

Given my conclusion that the relief of spoliation is merited, costs should follow the result. The applicants have sought a special award of costs on an attorney and client scale. However, I am not believe that the 1st to 4th and 6th respondents litigated in bad faith. As a result, costs will be awarded on a party and party scale.

In the result, I grant the following final order:

The 1st, 2nd, 3rd, 4th and 5th respondents be and are hereby interdicted from barring, either personally or through their employees, assignees, agents and contractors, including but not limited to the 5th respondent, the 1st applicant from accessing, possessing and/or occupying the 6th respondent’s business premises Stand 524 Cleveland, Mutare Road, Msasa, Harare without a valid order of court.

The 1st, 2nd, 3rd and 4th respondents be and are hereby interdicted from revoking, either personally or through their employees, assignees, agents and contractors, the 1st applicant’s access to the 6th respondent’s email servers and related electronic systems without a valid order of court.

The 1st, 2nd, 3rd and 4th respondents shall jointly and severally pay costs of suit.

Kantor & Immerman, applicants’ legal practitioners

Wintertons, 1st, 2nd, 3rd and 4th respondents’ legal practitioners

Gill Godlonton & Gerrans, 6th respondent’s legal practitioners