Adlecraft Investments (Private) Limited v Cassandra Myburgh and Colins Baker

Adlecraft Investments had a three-member board of directors. Two directors passed a resolution on 26 August 2021 appointing Mr Munyaradzi Gonyora as Acting Managing Director, effective 18 August 2021, following allegations that the existing Managing Director, Mr Ofer Sivan, had committed theft and abandoned his duties by going to America. When Mr Gonyora attempted to assume his duties on 18 August 2021, he was denied access by the respondents - the first respondent being Sivan's personal assistant (Cassandra Myburgh) and the second being the workshop manager (Colins Baker). Both respondents were employees of the company. On 18 August 2021, Myburgh locked the gate and offices and took company car keys. When Gonyora visited the workshop at Stand 4118 Marlborough, Baker verbally and physically assaulted him and told him he was not welcome. Gonyora made police reports on 18 August 2021. On 27 August he learned workers were being prevented from entering the workshop. The urgent application for spoliation was filed on 3 September 2021. The company rented its premises from Mr Sivan.

• Whether the application was urgent given the 7-day delay between the alleged spoliation on 27 August and filing on 3 September
• Whether the application was defective for seeking final relief without provisional relief
• Whether Mr Ofer Sivan should have been joined as a party
• Whether the applicant had been despoiled of possession of the company premises
• Whether employees could prevent the Acting Managing Director appointed by board resolution from accessing company premises
• Whether the board resolution appointing Mr Gonyora as Acting Managing Director was valid despite Mr Sivan not signing it

The court granted the spoliation order directing: (1) The respondents shall immediately restore to applicant through its authorized officials possession of Number 1 Belper Close, Mt Pleasant Harare as well as 41189 Marlborough Harare; (2) Applicant is granted leave to effect service of this order through its legal practitioners; (3) Each party to pay their own costs.

In spoliation proceedings: (1) A company has an absolute right to be in control of its business premises through its chosen representative appointed by a valid board resolution; (2) Employees cannot lawfully prevent access to company premises by a duly appointed Acting Managing Director, regardless of their belief that their suspension is invalid or that they work for a different director; (3) Spoliation concerns possession, not ownership - a company leasing premises can bring spoliation proceedings; (4) Final relief (not provisional relief) is appropriate in spoliation applications where the applicant has an absolute right to possession; (5) In determining spoliation, courts must focus on whether unlawful dispossession occurred and not on the merits of underlying disputes between shareholders or directors; (6) Physical denial of access to premises, locking of gates and offices, and taking of company keys constitute spoliation when done to prevent a lawfully appointed company representative from assuming duties.

The court observed that ultimately the company directors would have to address their internal dispute regarding management. The court also noted that while employees may have been caught in the middle of a directorial dispute and were intransigent, it would not be appropriate to award costs on a higher scale against two employees when Mr Sivan, who was driving the process behind the scenes, would remain unaffected by such a costs order. The court also observed that the fact that Mr Sivan had returned to the country did not affect the need for Mr Gonyora to continue acting, as the resolution was clear on what needed to happen.

This case reinforces fundamental principles of spoliation law in Zimbabwe, particularly that: (1) employees cannot take the law into their own hands to prevent a duly appointed company representative from accessing company premises; (2) spoliation concerns possession, not ownership or underlying rights; (3) courts hearing spoliation applications must focus strictly on whether unlawful dispossession occurred and not be drawn into determining the merits of underlying disputes; (4) final relief is appropriate in spoliation applications where the applicant has an absolute right (such as a company's right to control its premises through its appointed representative), without requiring provisional relief based on prima facie proof; and (5) the mandamus vivae vocis principle applies - he who has been despoiled must be restored to prevent self-help and restore the status quo ante until the law has taken its course.