IN THE HIGH COURT OF SOUTH AFRICA

DATE:								24 April 2008

In the matter between:

YVONNE DOROTHY SPINKS				Applicant

And

ELMARIE SUSAN BOTHA				First Respondent

ALBE VAN DER WESTHUIZEN			Second Respondent

ESSENCE BY ELMARIE CC                    Third Respondent

JUDGMENT

2. Interdicting and restraining the respondents and any of their employees or agents from harassing, threatening and intimidating the applicant or any of the employees of the business Vanilla Body & Beauty Therapy.
3. Granting such further and alternative relief.
4. Directing the first and second respondents, jointly and severally, to pay the costs of the application".

[2] Pending the return day, the respondents were interdicted and restrained from entering the premises aforesaid and were ordered to do whatsoever is necessary to allow the applicant to enter and remain at the premises. The Sheriff was authorised to assist the applicant in entering and remaining at the premises should such assistance be necessary or requested.

[3] The respondents and any of their employees or agents were further interdicted and restrained from harassing, threatening and intimidating the applicant and any of the employees of the business Vanilla Body & Beauty Therapy.

[6] The Le Salon business employed three employees; the first respondent, Ms Lahetsa Beukes and Ms Nadine Kraus. The applicant provided the capital to set up the business as investor and concluded a written lease with the owner of the premises in her own name on 31 July 2007, which lease is, in terms of the written contract, to endure for a period of two years, from 1 August 2007 to 31 July 2009 with an option to renew. The third respondent close corporation was registered on 28 August 2007 to serve as a vehicle through which the applicant and first respondent would conduct the aforesaid business.

[7] It is common cause that the applicant and the first respondent soon fell out and that by October 2007 it was clear that their business relationship would have to be terminated. On 31 October 2007, the first respondent phoned the applicant. The contents of this conversation is in dispute, but as a result the first respondent did not attend at the premises from 1 to 13 November 2007. By a letter dated 8 November 2007 written by her attorney, the first respondent took up the position that the applicant interfered with the running of the business and in terms of the letter "the applicant is required to refrain from entering the premises to avoid a restraining order".

[8] The applicant's attorney replied on 12 November that the applicant was entitled to partake in the management of the  business and,   in  addition,   stated  that the third respondent (the close corporation) would be liquidated if the applicant's investment of R80 000 in the business was not repaid by the third respondent.

[9] On 13 November 2007, the first respondent returned to the premises for the first time since 31 October 2007. It is common cause that a "discussion" arose in regard to certain payments the first respondent alleged were due to her as commission on the sale of certain products. The exact content of this exchange between the applicant and the first respondent is in dispute.

[10] The applicant considered this encounter with the first respondent to be the "final straw" and as a result, through her attorney, the applicant as tenant of the premises, gave written notice on 13 November 2007 to the first and third respondents to vacate the premises. In the notice to the third respondent, the applicant took up the attitude that the lease for the premises was between her and the owner of the property and that as the only legal tenant of the premises, the applicant gave the close corporation notice to immediately vacate the premises with effect from close of business on 13 November 2007. It is further stated in the notice that the close corporation would be free to conduct its business from whatever other premises it deems fit to do. Notice is further given that no items may be removed from the premises as the applicant claimed that the ownership thereof vested in her.

[11]   In the notice on the same day to the first respondent, the applicant attached a copy of a letter to the corporation and informed the first respondent that in terms of the aforesaid letter,  the close corporation is required to vacate the premises. The letter then proceeds as follows: "As a member of the corporation you are hereby formally given notice to refrain from entering the premises with effect from close of business on 13 November 2007. Kindly note that no items may be removed from the premises as ownership of ah equipment, fittings and furnishings vest in our client. Any attempt by yourself to interfere with our client or her rights as a tenant shall result in immediate legal action against you".

[12] The applicant, after giving the aforesaid notices and still on 13 November 2007, changed the locks to the premises. She also commenced to conduct a new business at the premises under the name and style of Vanilla Body Beauty Therapy. The erstwhile employees of Le Salon, Ms Beukes and Ms Kraus, fell in to work for this new business.

[13] The first respondent's position is set out in the papers in this application. It is that the applicant "unilaterally elected to dissolve" the business conducted through the close corporation. In a letter by her attorney dated 14 November 2007, the stance is adopted that the business relationship has broken down and that it must be terminated. The first respondent further complained about "the unlawful" changing of the locks to the premises and tendered to continue working in the business. On the same day, 14 November 2007, the applicant's attorneys wrote making it clear that should the first respondent attempt to return to the premises, the applicant would apply for relief to this court.

[14] It is therefore clear that from 13 November 2007, the applicant's intention was to take exclusive possession of the premises and to conduct her own business there, to the exclusion of the first respondent. The first respondent was aware of this intention by the latest on 14 November 2007.

[15] This was the position until the morning of 19 November 2007 when the first respondent returned to the premises. The first respondent, with the help of the second respondent, forcibly took possession of the keys to the premises from Ms Beukes who was in the process of unlocking the front doors of the premises. In the process Ms Beukes suffered a physical injury and left the premises. The first and second respondent thereupon took possession of the premises and later that morning barred the other employee, Ms Kraus, from working at the premises. The first respondent's contention in these papers are that she on 19 November 2007 gained "lawful access" to the premises.

[16] Pursuant to these events, the applicant immediately launched the present application, which is a spoliation application, on the same day, 19 November 2007, alleging that she had been unlawfully deprived of her possession of the premises. On 4 December 2007, the order to which i referred to earlier, was granted by this Court. On 20 March 2008, in a separate application, the third respondent was finally wound up by order of this Court.

1.	The applicant has not shown that she was in peaceful and undisturbed possession of the premises on 19 November 2007.
2.	The first respondent's conduct on 19 November 2007 constituted the regaining of possession by way of lawful counter-spoliation. This is an alternative argument to the first point.
3.	

[19] In my view, it is clear that the applicant was in peaceful and undisturbed possession from 13 to 19 November 2007. The applicant was the lessee of the premises and she was throughout in factual control thereof. She had, to the knowledge of the first respondent, changed the locks on 13 November 2007 and the keys to the premises were under her control, through her employee, Beukes, at the time Beukes was dispossessed of the keys. The applicant held the premises with the intention of gaining an advantage and benefit for herself. She carried on a new business from the premises and it was made clear in the letter of her attorney on 14 November 2007 that if the first respondent should attempt to enter the premises, an application would be made for an order to bar her from entering.

[31]  ! therefore make the following order:

2.	The respondents are interdicted and restrained, together with any of their employees or agents, from harassing, threatening and intimidating the applicant, or any of the employees of the business Vanilla Body & Beauty Therapy.
3.	The first and second respondents are ordered, jointly and severally, to pay the costs of this application.