MBABANE – The High Court has ordered the immediate return of Eswatini Mobile shares in a company called Stage 1 Connections to Cherrybite (Pty) Ltd.
The situation began when lawyer Derrick Ndo Jele, acting as the executor of the estate of the late businessman Victor Gamedze, registered himself as a shareholder and director of Stage 1 Connections.
However, these shares, linked to Eswatini Mobile, had already been transferred to Cherrybite (Pty) Ltd through an earlier agreement.
For years, Cherrybite, through its Director, Michelo Shakantu, had been officially recorded as the owner.
When Cherrybite discovered these changes, they promptly approached the court, arguing that their property had been unlawfully taken.
Judge John Magagula, who heard the matter, ruled that shares are a type of moveable asset that can be possessed or owned, and they cannot simply be taken from someone without their consent or a court order.
Even though Jele registered the changes with the registrar of companies, the court stated that the registrar merely recorded the information provided by Jele, rather than making an independent decision.
Therefore, the court found that Jele was the one who unlawfully took control.
The court has ordered Jele to immediately restore Cherrybite (Pty) Ltd’s name as the owner of the 1 000 shares in Stage 1 Connections.
It was also ordered that he must remove his own name from the company’s register of shareholders and directors.
If he fails to comply, the court authorised the sheriff (a court official) to take the necessary steps to enforce these orders.
Jele will also be responsible for paying Cherrybite’s legal costs in his capacity as executor.
The court proceedings were initiated by Cherrybite (Pty) Ltd, Shakantu and Stage 1 Connections (Pty) Ltd. The respondents were Jele, the registrar of companies, the master of the High Court and the attorney general.
The applicants were seeking orders that Jele and the registrar, forthwith and with immediate effect, restore the name of Cherrybite (Proprietary) Limited as the holder of 1 000 ordinary shares in Stage 1 Connections (Proprietary) Limited and that Jele’s name be removed from the register of members and shareholders of Stage 1 Connections, unless authorised by a valid court order empowering his name to be entered.
Other orders sought were that Jele and the registrar forthwith and with immediate effect, restore Shakantu’s possession and control over Stage 1 Connections (Proprietary) Limited and its business and assets, as well as prohibiting the executor from taking control of or interfering with the management and business activities of Stage 1 Connections or the company without a valid court order empowering him to do so.
The applicants further prayed that, should Jele and the registrar of companies fail to carry out or enact any order granted under the prayers being sought, the sheriff of the High Court must be authorised to give effect to the order.
Issues at the heart of these court proceedings included whether a share in a company is capable of ‘possession’ in a way that allows for a remedy for spoliation (the unlawful taking of possession from another without their consent).
Judge Magagula held that a share is an incorporeal movable entity capable of possession, and therefore the protection of a spoliation order extends to it.
This directly addresses and refutes the executor’s argument that the rights sought to be protected were purely personal.
Another issue was whether the removal and replacement of a shareholder and director from a company’s register, without consent or due legal process, constitutes spoliation.
The court found that such actions indeed amount to spoliation because the applicants were ousted from their peaceful and undisturbed possession of the shares and control of the company without their consent or a court order.
Another issue was the nature of the registrar of companies’ role in the alleged spoliation.
The executor argued that the changes were administrative decisions by the registrar, requiring a review.
However, the court found that the registrar merely recorded what the executor instructed, and thus the latter remained the spoliator (a person or entity who unlawfully deprives another of peaceful and undisturbed possession of property, without the latter’s consent or due process of law).
The case was about the applicants seeking immediate restoration of the situation before the reported unlawful dispossession through a spoliation order, arguing that Jele unlawfully took control of the company and its shares.
In this matter, Jele was said to have unlawfully removed Cherrybite (Pty) Ltd’s name from the company register as the holder of 1 000 shares in Stage 1 Connections (Pty) Ltd, unlawfully removing Shakantu’s name as the sole Director of Stage 1 Connections (Pty) Ltd and replacing it with his own name, and unlawfully taking possession and control over Stage 1 Connections (Pty) Ltd and its business and assets.
The applicants argued that these actions were done without their consent or due process of law, thus necessitating their approach to the court seeking the immediate restoration of the previous state of affairs. The court ultimately agreed with the applicants, finding that Jele was indeed the spoliator.
The applicants approached the court with urgency, stating that the reason they wished to have the matter heard on an urgent basis was the manner in which the executor was then conducting himself.
“He was holding himself out as a shareholder and sole director of Stage 1 Connections,” reads Judge Magagula’s judgment.
The court noted that the applicants stated that they decided to move fast upon realising their shares had been transferred to the executor.
They submitted they discovered this on March 12, 2025, and went to court on March 20, 2025. Judge Magagula said this was prompt action.
Judge Magagula concluded that there was spoliation in this matter. “It is trite that spoliation constitutes the unlawful taking of possession from another without their consent nor following the due process of law.
“The applicants were ousted of such possession without their consent or a court order. In the premises, the application succeeds and the order stated hereunder is made,” Judge Magagula stated.
The applicants were represented by Advocate Anthony Mundell, instructed by Banele Manzini of MJ Manzini and Associates. Advocate Christiaan Bester appeared for Jele while Assistant Attorney General Mbuso Simelane represented the master of the High Court and the attorney general.
Lawyer Derrick Jele was the first respondent in the matter. He was ordered to pay costs of the application in his capacity as executor. (Pic: Robinson Bertram/robinsonbertram.law.sz)