SWIMMING POOL & UNDERWATER REPAIR (PVT) LTD & ORS v RUSHWAYA & ANOR 2012 (2) ZLR 151 (S)

Flynote

Appeal — hearing — application for hearing on urgent basis — appeal against refusal to grant spoliation order — applicant must show reasonable prospects of success

Company — legal proceedings — action by majority shareholders against minority shareholders — need to obtain company resolution to initiate proceedings

Practice and procedure — application — urgent — urgent application for spoliation — application dismissed — appeal against such dismissal — whether should be heard on urgent basis — depends of prospects of success

Property and real rights — spoliation — order — refusal to grant — appeal against — when should be heard on an urgent basis

Headnote

An application for a spoliation order in a court of first instance is heard on an urgent basis because of the need to stop unlawful conduct and self-help urgently and to restore the status quo ante until the law has taken its course. Where, however, the applicant for a spoliation order has been unsuccessful in the court of first instance and wishes to appeal against that decision, the appeal will not necessarily be heard on an urgent basis. Different considerations apply, in that a court of competent jurisdiction will have determined whether or not there was spoliation. Whether or not the appeal should be heard on an urgent basis should depend on the prospects of success of the appeal. Where there are good prospects of success on appeal, the appeal should be heard on an urgent basis so as to bring the unlawful conduct to an end. However, where the appeal has no prospects of success, the appeal should not jump the queue.

For a majority shareholder to succeed in an action to evict a minority shareholder, it is necessary to allege and prove that the company resolved to evict the minority shareholder and that the majority shareholder has locus standi to initiate legal proceedings to enforce the company's resolution. It is not enough for the majority shareholder to simply say that as the majority shareholder it wants to evict and exclude from the administration of the company the minority shareholder without a company resolution to that effect.