Kinnear and Others v Travico (Pty) Ltd (A567/2007) [2008] ZAGPHC 389 (4 December 2008)

Kinnear and Others v Travico (Pty) Ltd (A567/2007) [2008] ZAGPHC 389 (4 December 2008)

The court found that the respondent was never in possession or control of Coachcor or its business, as the share sale agreement did not transfer shares or management, and the respondent failed to pay the purchase price. Marais was not acting as the respondent's representative but as a functionary of Coachcor. There was no evidence of unlawful dispossession by the appellants. The mandament van spolie was not an appropriate remedy, and the relief granted by the court below conflicted with basic company law principles. The appeal was upheld and the application dismissed with costs.

Citation
[2008] ZAGPHC 389
Parties
Appellant: Fred George Kinnear; Appellant: Protours Isle of Man Ltd; Appellant: Eagle Creek Investments (Pty) Ltd; Appellant: Timothy Mpopoli Mathebula; Appellant: Patricia Nora Zenani Fakude-Nkuna N.O.; Appellant: Coachcor (Pty) Ltd; Respondent: Travico (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
4 December 2008
Case Number
A567/2007
Procedural Posture
Civil Appeal / Appeal Against Order of Court a Quo Granting Mandament Van Spolie
Outcome
Appeal upheld; application dismissed with costs.
Judges
B.R. Southwood, W.R.C. Prinsloo, N.M. Mavundla
Legal Topics
Mandament Van Spolie, Company Share Sale, Possession and Control, Directors Powers, Unlawful Dispossession
Civil Procedure Commercial and Corporate Mandament Van Spolie Company Share Sale Possession and Control Directors Powers Unlawful Dispossession

Case Brief

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Parties

Fred George Kinnear

Appellant

Protours Isle of Man Ltd

Appellant

Eagle Creek Investments (Pty) Ltd

Appellant

Timothy Mpopoli Mathebula

Appellant

Patricia Nora Zenani Fakude-Nkuna N.O.

Appellant

Coachcor (Pty) Ltd

Appellant

Travico (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Order of Court a Quo Granting Mandament Van Spolie

Legal Issues

  1. 1 Whether the respondent was in peaceful and undisturbed possession of Coachcor and its business.
  2. 2 Whether the respondent was unlawfully dispossessed by the appellants' actions on 8 February 2007.
  3. 3 Whether the mandament van spolie was an appropriate remedy in the circumstances.

Ratio Decidendi

The court found that the respondent was never in possession or control of Coachcor or its business, as the share sale agreement did not transfer shares or management, and the respondent failed to pay the purchase price. Marais was not acting as the respondent's representative but as a functionary of Coachcor. There was no evidence of unlawful dispossession by the appellants. The mandament van spolie was not an appropriate remedy, and the relief granted by the court below conflicted with basic company law principles. The appeal was upheld and the application dismissed with costs.

Court Disposition

Appeal upheld; application dismissed with costs.

Orders

  • The appeal is upheld with costs.
  • The orders granted on 13 April 2007 are set aside.