Vavika High School v Saunyama and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: B Hartle J
• Judgment Date: 30 June 2022
• Docket Number: EL 166/2022
• Hearing Date: 10 February 2022
• Court: East London Circuit Local Division
• Citation: 2022 JDR 2058 (ECGEL)

Hartle J:

[1]

The first applicant is a registered independent school ("the school"). It is a private company, bearing the registration number cited on the face of the notice of motion and other pleadings filed in the matter. The second applicant (not indicated on the face of the notice of motion but mentioned in the founding affidavit) is alleged to have been the founder of the first applicant. He also claims to be its senior operations employee and a current director of the first applicant.

[2]

It is both the company and his interests that the second applicant seeks to protect in an urgent application to interdict the first to fifth respondents from appropriating registration and other fees collected from parents of learners due to the school, and basically from running the school or entering its premises to control it, or interfering with "any member of the applicant", pending the determination of Part B of the application in which the applicants seek to set aside a sale agreement concluded between the "school" (sic) and the first to fifth respondents pursuant to which the school's business was sold to them. The primary premise for the interdict is that the sale is null and void ab initio because the sale was supposedly actuated by duress, acts of violence and coercion, and for this reason, so the second applicant asserts, the conduct described above must in protection of their interests essentially be restrained pending the determination of the applicants' claim to have the agreement set aside. [1]

2022 JDR 2058 p3

Hartle J

[3]

The sixth respondent is cited by reason of the fact that funds which are the property of the first applicant have been redirected to a new account held with the bank at the behest of the first to fifth respondents, the gains of which the applicants want this court to freeze pending the determination of Part B.

[4]

The CIPC is cited as the seventh respondent for its interest in the proceedings, although for what reason it is not quite clear.

[5]

No resolution of the first applicant was put up to show that its "directors" (the first to fifth respondents claim to have been substituted as directors since the sale) authorized the institution of the proceedings or that the second applicant is supposedly authorized to represent its interests. He however claims to have been authorized in a "due and proper manner" to depose to the founding affidavit in support of the relief sought in the application.

[6]

Not surprisingly the first to fifth respondents filed a notice in terms of rule 7 (1), together with their notice to oppose, calling on the second applicant to account for his authority to represent the first applicant, which is not borne out in any formal documentation provided by him.

[7]

The pretext of the application, according to the second applicant, is that the first to fifth respondents forced him to sell "the company" to them because they had not been able to personally redeem from him their "investments" in a separate money lending business called Vavika Trading Academy (of which he was also the founding director) after that company began to take financial strain due to the economic ravages of the COVID pandemic. (The first to fifth respondents deny lending to Vavika Trading Academy, asserting instead that their loans were made to the second applicant in his personal capacity.)

2022 JDR 2058 p4

Hartle J

[8]

This culminated, so he claims, in him having been ambushed and held against his will by the first to fifth respondents [2] in a dark shady room at a venue at Falcon College in East London on 13 January 2022. Purportedly the first respondent lured him there under the false pretence of taking a drive with him which he says he acceded to because he thought the first respondent had a business proposal for him (this despite the claimed animosity between them as a result of it having supposedly become clear to the perpetrators that his lending company could not reimburse their "investments" in the company.) He alleges that after the first respondent snatched his cell phone from him, the first to fifth respondents demanded their investment shares from him personally. His explanation that Vavika Trading Academy was unable to pay them was not well received and the situation got heated. The first respondent suddenly assaulted him on his face with a closed fist, and repeatedly thereafter. Thereupon the first respondent prevailed upon him to sign the sale agreement, explaining that this would entail him signing over "ownership" of the first applicant to them. They insisted, against his pleas that this was not possible and against the interests of various stakeholders, that this was the only way to recover the debt(s) owed to them, on his version, by Vavika Trading Company.

[9]

They locked him up in a dark closed room after he at first refused to sign the document, whereupon he was held captive until they showed up again. This weakened his resistance and fearing what "more" might come, he "decided to comply with their directives". He did so but had no intention nor desire however to sign over his "ownership" of the school to the first to fifth respondents.

2022 JDR 2058 p5

Hartle J

[10]

His further experience of the situation was explained in his own words as follows:

"I could not endure the assault and being kept captive in a closed a dark room and awaiting for what I do not know. [3] I thought of the worst that could happen to my life. [4] My logic dictated that I should succumb to the illegal order to ease myself from the beatings. I then signed over the ownership of the first applicant to the first to the fifth respondents under those conditions. I have been informed by those I instructed that such a contract is therefore concluded under duress. I was only let go after signing that illegal contract." (Sic)

[11]

This resulted in him signing the impugned sale agreement which he envisages being ultimately set aside by this court under Part B of his claim.

[12]

The purportedly "illegal" sale agreement put up by him on the face of it appears to be an authentic regular agreement, typed, reflecting proper names with ID references, significant dates and figures and details comprising the necessary elements of a sale and acknowledgment of a substantial debt owing which is being set off in lieu of the sale price of the school as a going concern. It bears the second applicant's signature as seller authorized by a resolution which was not attached to the second applicant's annexure "VHS 2", although the sale agreement imports it by reference as forming part of the deed of sale. The first to third and fifth respondents have signed the copy put up by the second applicant, which the first respondent in his answering affidavit concedes he furnished the second applicant with on 8 January 2022 after its signing. [5]

2022 JDR 2058 p6

Hartle J

[13]

The second applicant avers that "immediately thereafter" he reported the claimed incident to the Fleet Street Police Station and that a charge of robbery and assault common was laid against the first to fifth...