Still reeling from a humiliating defeat at the hands of Percy Raditladi at the Francistown High Court last week, Grow Mine Africa trading as Dineo Tsa Pula suffered yet another debilitating blow when its lawyers of record withdrew their legal representation mandate. Through its notice filed with the Francistown High Court on 17th December 2020, the law firm, S Thapelo Attorneys informed the court that they had withdrawn their mandate from representing the company.
Last week, Judge Justice Bashi Moesi discharged an interim order he issued on November 9th, 2020 calling upon Raditladi to show cause why the order sought by Grow Mine Africa should not be made final. Discharging the interim order last Friday, Justice Moesi opened his ruling with the wise words of Lord Wilberforce in the seminal case of Ebrahimi versus Westbourne Galleries Ltd & Another: “My Lords, …a limited company is more than a mere legal entity, with a personality in law of its own… there is room in company law for recognition of the fact that behind it, or amongst it, there are individuals, with rights, expectations and obligations inter se which are not necessarily submerged in the company structure”.
In its urgent court application launched on 7th November 2020, Grow Mine Africa had made at least twelve demands in which it sought Raditladi to return immediately, among others, its computer and accessories in his possession and the password to the computer as well as the virtual data room. Grow Mine Africa also wanted Raditladi to return all documents including, but not limited to invoices paid, contracts, bank statements, deposit books, cheque books, both old and new, and all other documents belonging to the applicant in addition to the Gambling terminal as well as its modem sent to him by IGT for on-wards transmission to the applicant.
Grow Mine Africa also wanted Raditladi to return to its possession all correspondence files and communication between the applicant and third parties including all copies of the submission bid to the Gambling Authority but not limited to the hard drives. It also sought that in the event he refuses and or neglects to hand over the items to the applicant, a Deputy Sheriff of the Court be directed and authorized to confiscate the said items and hand them over to the applicant. The applicant also wanted that in the event the respondent refused to hand over the password for the computer and the virtual data room, the applicant be authorized to engage an IT specialist to facilitate access to the computer and virtual data room with the costs being borne by the respondent.
Opposing the application, Raditladi contested the urgency of the application and that the resolution filed by Grow Mine Africa purporting to authorize the company’s board chairman Chandra Chauhan to launch the application and the appointment of Law Firm S Thapelo Attorney were invalid for lack of board quorum and that the said Chauhan had neither board nor shareholder authority to fire him. The parties agreed that the court determine both applications on the basis of the filed papers and the court had to determine whether a real and genuine dispute of facts existed and the question to be grappled with was whether there is a real issue of fact which cannot be determined without the aid of a trial.
“In the instant case the court is not satisfied that Chandra Chauhan has in his founding affidavit seriously and unambiguously addressed the key facts said to be disputed, namely the justification for Raditladi to retain possession of the documentary and electronic equipment and so on in his possession”, ruled Justice Moesi discharging the interim order.
The judge said in his well considered opinion what was said in the Ebrahimi case aptly sums up what is happening in Grow Mine Africa – namely “that there are individuals, with rights, expectations and obligations inter se which are not necessarily submerged in the in the company structure”.
According to the judge, Grow Mine Africa ought to have foreseen this dispute of fact arising because behind this matter and the respondent (a company in which Raditladi and other individuals played a crucial part in founding) lies a tale about various individuals who, though they have seemingly common high commercial aspirations, apparently have inharmonious agendas and expectations.
“Not unusual business-related differences between key role players in Grow Mine Africa have resulted in this acrimonious litigation – involving an urgent application brought by Grow Mine Africa and an urgent counter-application brought by Raditladi – in my assessment spawning a real, genuine and bona fide dispute of fact”, said Judge Moesi in closing.
Justice Moesi therefore ordered that the real issues of fact in the case which cannot be determined without the aid of oral evidence are referred to trial, with the papers so far filed by the parties standing as pleadings, the result being that before the court is both a claim in convention and a claim in re-convention in addition to discharging the interim order. The matter is scheduled for initial case management on 9th March 2021.