Ewan Ronald Simmonds N O v Granville Essafrau and Others

The deceased, John Owen Brankin, instituted motion proceedings seeking to vindicate class 'A' shares in Burchells Bush Lodge Shareblock Ltd that were registered in the names of the respondents, who were directors of the company. He alleged that he was the lawful owner of 5 500 shares and that he had transferred them to the respondents in 2005 for no value. He contended that the transfers were invalid, primarily because they contravened Article 9 of the company’s articles of association, which required all shares in a share block to be transferred simultaneously to one transferee. The respondents opposed the application, disputing that the deceased had ever acquired ownership of the shares. The High Court dismissed the application. After the deceased’s death, his executor, Ewan Ronald Simmonds N O, was substituted as appellant in the appeal to the Supreme Court of Appeal.

The appellant was formally substituted for the deceased, and the appeal was dismissed with costs, including the costs of two counsel.

The case reaffirms the strict application of the Plascon-Evans rule in motion proceedings and underscores that vindicatory relief requires clear proof of ownership on common cause facts. It illustrates the difficulties of establishing ownership of incorporeal property such as shares on affidavit evidence where the factual matrix is inconsistent or unclear.