Apart
from a bald allegation that it was in possession, the respondent did not,
before the magistrate or the High Court, establish proof of its occupation of
the disputed premises. The affidavit from Dr Vivek Solanki suggests that he
occupied No.15 Lanark Rd in his personal capacity, which, given the documents
in the record, is ...
Apart
from a bald allegation that it was in possession, the respondent did not,
before the magistrate or the High Court, establish proof of its occupation of
the disputed premises. The affidavit from Dr Vivek Solanki suggests that he
occupied No.15 Lanark Rd in his personal capacity, which, given the documents
in the record, is an obvious lie. He was not in occupation, but was on the
premises pursuant to the Management Agreement that got terminated, which
termination he accepted.
According
to the documents on the record, Dr Vivek Solanki was employed by African
Medical Investments Plc and was one of the Directors of the company. When the Management
Agreement was concluded with Autoband Investments (Pvt) Ltd, he, Marco
Cerunschi and Wessel Roets constituted the management team on behalf of African
Medical Investments Plc.
On
9 July 2010, Sallans LLP, the Legal Practitioners for African Medical
Investments Plc addressed a letter to Dr Vivek Solanki, who, at the relevant
time, was in Mozambique, in the following terms:
“Following
upon the management discussion on 30 June 2010, and the subsequent engagement
of independent auditors to conduct investigations into the group's operations
in Harare and Johannesburg, as lawyers for the Company we are instructed by the
Board of the Company to write to confirm that, as of the date of this letter,
you are suspended from work until further notice pending investigation into an
allegation of gross misconduct in relation to potential financial and
administrative irregularities at the Company's Harare and Johannesburg medical
facilities. The Company reserves the right to change or add to this allegation
as appropriate in the light of its investigation….,.
During
your suspension, the Company shall continue to pay your salary in the normal
way. You are also entitled to your normal contractual benefits.
You
will continue to be employed by the Company throughout your suspension and you
remain bound by your terms and conditions of employment, including but not
limited to your duty of fidelity. You are required to co-operate in the
Company's investigation and you may be required to attend, remotely or in
person, investigative interviews or disciplinary hearings. However, you are not
otherwise required to carry out any of your duties and you should not attend
any of the group's operational locations unless authorised by Phil Edmonds to
do so. Your e-mail account will be suspended. You must not communicate with any
of the group's employees, contractors, suppliers or customers unless authorised
by Phil Edmonds or Brett Winstone in writing. However, you are required to be
available to answer any work related queries….,.
If
you require access to the group's premises or computer network during the
period of suspension please let Brett Winstone know as the Company may agree to
arrange this under supervision.
If
you have any questions about this matter or the terms of your suspension please
feel free to contact Philip Enoch.”
The
response from Dr Vivek Solanki was as follows:
“This
letter is formal notice that I hereby resign as Chief Executive Officer of
African Medical Investments Plc (“AMI”), to which I was appointed pursuant to
the Directors' Service Agreement (“the agreement”) made on or about 3rd
October 2008.
AMI
is in repudiatory breach of the Agreement and by resigning I hereby accept such
repudiation and give AMI notice of such acceptance. It follows that I have been
wrongfully constructively dismissed by AMI. A detailed letter setting out
particulars of AMI's repudiation of the Agreement, is in the course of
preparation, and will be sent once it has been concluded.
I
also give notice that I hereby resign my Directorship in AMI.
I
intend to claim compensation and/or damages for having been wrongfully
constructively dismissed, including representing twelve (12) months loss of salary.
In
the event that you dispute my entitlement to resign as mentioned above, then I
give you notice that a difference dispute will have arisen within the meaning
of clause 20.3 of the Agreement.”
When
these two letters are examined against the averments in the affidavits attested
to by Dr Vivek Solanki, the only conclusion that one can reach is that there is
a grand scheme at fraud on his part.
Firstly, it is claimed by Dr Vivek Solanki that he is the founder and Director
of Autoband Investments (Pvt) Ltd. He then claims that he was approached by African
Medical Investments Plc in 2009 with a proposal to go into a joint venture
which would involve the exchange of shares. He claims, further, that the
negotiations fell through but that they executed a Management Agreement in
respect of the Harare operations. Yet in the letter quoted above, he admits to
being an employee of African Medical Investments Plc. In none of the
applications did he submit proof of ownership of shares in Autoband Investments
(Pvt) Ltd nor did he file a Form CR 14 from the Registrar of Companies
establishing that he was indeed a Director of the respondent….,.
According
to Dr Vivek Solanki, he had been in occupation of the premises as a tenant for
a period in excess of fifteen (15) years. The letter from Kantor & Immerman,
of 19 August 2008, identifies the tenant to the premises as VBL Medical
Networks (Pvt) Ltd which clearly discounts the version by Dr Vivek Solanki that
he was the tenant to the premises.
Further
to this, the Management contract, in terms of which the respondent occupied the
hospital was terminated. On 30 August 2010, the interim Chief Executive Officer
for African Medical Investments Plc addressed a letter to the respondent which
reads as follows in relevant part:
“On
behalf of our wholly owned subsidiary, VIP Healthcare Solutions Limited
(formerly known as CA Meifco Limited “VIP”), as a result of numerous alleged
transgressions, relating to fraud, mismanagement and misappropriation of funds
at the Trauma Centre, Harare, we hereby give you notice, pursuant to clause 9.1
of the Management Agreement entered into between yourself and VIP that, if such
breaches are not remedied within 5 days of the date of this letter, the
Management Agreement shall be formally terminated….,.
If
you fail to remedy the breaches referred to above in the specified time limit
and the Management Agreement is terminated you shall immediately cease to hold
yourself out as having any connection with African Medical Investments Plc or
any of its Group companies. We will reserve our rights against you in the event
that you fail to take such actions as and when required.”
The
respondent has not adverted to this letter nor sought to explain how it
remained in possession of the premises given the relationship between itself
and African Medical Investments Plc. If the respondent or Dr Vivek Solanki
assumed occupation after the date of the letter it has not been stated on the
papers. The respondent is a corporate entity, and in the light of its claim
that it was running a hospital, it was incumbent that it established before the
magistrate proof of its occupation. Although it alleged a lease, no lease
agreement was produced. Given the fact that the appellant was the registered
owner, there was no evidence adduced as to who the premises were being leased
from. In addition, a hospital has licences and permissions from various
authorities which enable it to operate as such. There was no attempt by the
respondent to produce any document in its name to establish its occupation of
the premises….,.
An
order for the eviction of African Medical Investments Plc would not disturb the
appellant and a spoliation order can only be issued against the party that
caused the spoliation. The respondent has never alleged that it was deprived of
possession by the appellant and has always stated that it was African Medical
Investments Plc that caused its unlawful ejectment. By the time it sought
redress, African Medical Investments Plc was not in possession. Instead, as the
documents would show, it was the appellant that was in occupation of No.15
Lanark Rd. It is for these reasons that the High Court should have granted the
declaratur being sought by the appellant.
The
draft order sought by the appellant in the High Court had the effect of
nullifying the eviction order granted by the magistrate. It is apparent from
the papers that the appellant did not hold the premises through African Medical
Investments Plc, and, consequently, the order issued by the Magistrates Court
was of no force and effect upon the appellant.
