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[2018] ZAFSHC 25
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BLC Plant Company (Pty) Ltd v Maluti-A-Phofung Local Municipality and Others (6054/2017) [2018] ZAFSHC 25 (8 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No
.
:
6054/2017
In the matter between:
BLC
PLANT COMPANY (PTY) LTD
APPLICANT
and
MALUTI-A-PHOFUNG LOCAL
MUNICIPALITY
1
st
RESPONDENT
KWANE
CAPITAL(PTY)
LTD
2
ND
RESPONDENT
KWANE
BLC EQUIPMENT (PTY) LTD
3
RD
RESPONDENT
CORAM:
MATHEBULA, J
JUDGMENT
BY:
MATHEBULA, J
HEARD
ON:
22 FEBRUARY 2018
DELIVERED
ON:
8 MARCH 2018
[1]
These
are motion proceedings. The applicant
is
seeking
an order against the first respondent for the return of three (3)
earthmoving equipment.
[1]
The
respondent is resisting the application
.
[2]
The
factual matrix is not complex. The applicant is the owner of the
aforementioned equipment which was handed over to the second
respondent.
[2]
The latter was a
joint venture company between the director of the applicant namely
Guiseppe Stravino and one Mcebisi Mlonzi through
his Mlongo Family
Trust 2. The main purpose why the equipment was handed to the second
respondent was that the latter will ultimately
rent the equipment to
the first respondent. The applicant retained and reserved full
ownership of the equipment at all times.
[3]
The
respondent is denying being
in
unlawful
or illegal possession of the equipment. The basis of his stance is
that he concluded an agreement with the second respondent
for the use
of the equipment for specific purposes for example earth removal,
construction etc
.
An
amount of R6 000 000
.
00
was paid to the second respondent for the right to use it. As a
result the first respondent is under no obligation whatsoever
to
return the equipment.
[4]
The right of ownership is comprehensive and protected but it is not
absolute
[3]
In
Gien
v Gien
the
right of ownership was described as the most comprehensive right a
person can have in respect of a thing.
[4]
This right is enshrined in section 25(1) of the Constitution
•
of the Republic of South Africa Act 108 of 1996
[5]
.
In matters of this nature for an owner to succeed in his action, he
must prove on a
balance
of probabilities the following viz
:
-
ownership, the property is still in existence and clearly
identifiable and lastly that the defendant has possession or
detention
of it. This right is carefully protected by the courts.
However the owner may be estopped from exercising such rights to his
property.
The legal principles emphasizing the importance of this
right and estoppel by conduct were set out clearly in
OAKLAND
NOMINEES (PTY) LTD vGELRIA MINING & INVESTMENT CO (PTY) LTD
[6]
as follows:-
"Our
law jealously protects the right of ownership and the correlative
right of the owner in regard to his property, unless,
of course, the
possessor has some enforceable right A against the owner. Consistent
with this, it has been authoritatively laid
down by this Court that
an owner is estopped from asserting his rights to his property only -
-
(a)
where the person who acquired his
property did so because, by the
culpa
of the owner, he was misled
into the belief that the person, from whom he acquired it, was the
owner or was entitled to dispose
of it; or
B
(b)
(possibly) where, despite the absence of
culpa,
the
owner is precluded from asserting his rights by compelling
considerations of fairness within the broad concept of the
exceptio
doli.
See
Grosvenor Motors (Potchefstroom) Ltd.
v.
Douglas,
1956
(3) SA 420
(AD);
Johaadien
v.
Stanley Porter (Paarl) (Pty.)
C
Ltd.,
1970 (1) SA 394
(AD) at p. 409.
These
two cases relate to estoppel in respect of ownership of movables.
There seems no reason for not applying these principles
to a case
such as the present one where the plaintiff seeks a declaration that
it is the 'owner' of shares.
As
to the formulation in
(b),
supra, the occasion has not yet D
arisen for its further development by this Court. Certainly it does
not arise in the present appeal,
having regard to the pleadings, the
evidence, and the arguments in this Court.
As
to
(a),
supra, it may be stated that the owner will be
frustrated by estoppel upon proof of the following requirements •
E
(i) There must be a representation by the owner, by conduct or
otherwise, that the person who disposed of his property was the owner
of it or was entitled to dispose of it. A helpful decision
in this
regard is
Electrolux (Pty.)
Ltd.
v.
Khota
and Another,
1961 (4) SA 244
(W), with its reference at p. 247 to the F entrusting of possession
of property with the
indicia
of
dominiumor
jus disponendi.
(ii)
The
representation must have been made negligently in the circumstances.
(iii)
The
representation must have been relied upon by the person raising the
estoppel.
(iv)
Such
person's reliance upon the representation must
be
G the cause of his acting to his detriment
.
As to (iii) and (iv), see
Standard Bank of SA Ltd.
v.
Stama (Pty.) Ltd.
,
1975 (1) SA 730
(AD)."
[5]
In this matter the applicant has satisfied the court that he is
indeed the owner of
the three Caterpillars in the custody of the
first respondent. The first respondent is relying on estoppel by
conduct. In order
to succeed the first respondent must satisfy the
court that he relied on the representation of the owner by conduct or
connivance.
Such representation must have been made negligently which
led the respondent to act to his detriment.
[6]
Clearly in this matter there was no connection whatsoever between the
applicant and
the first respondent. The agreement (if any) was
negotiated and concluded between the first respondent and the second
respondent.
It appears that even the payment (if made) was transacted
between the said parties. The basis upon which the applicant must be
dragged
i
n
this matter remain unexplained
.
Therefore
,
there is no basis that the 1st
respondent can be availed this remedy
.
The defence of estoppel was not
adequately established. The application ought to be dismissed with
costs
.
[7]
Accordingly the order is the following
:
-
7.1.
The
application is granted.
7.2.
The
first respondent is ordered to forthwith return the following to the
applicant namely:-
7.2.1.
1
x CAT 329D Caterpillar Excavator (with serial number DJF01293);
7.2.2.
1
x CAT 329D Caterpillar Excavator (with serial number DJF01217); and
7.2.3.
1
x CAT CP533E Caterpillar Padfoot Roller (with serial number
TLH00279);
7.3
That,
in the event of the second respondent failing and/or refusing to
return to the applicant the aforesaid property, the sheriff
be and is
hereby authorized and requested to enter into and upon first
respondent's premises or wherever same may be found, to
attach and
return the aforesaid property to the applicant.
7.4
The first respondent is ordered to pay
the costs of this application
M ATHEBULA, J
On behalf of the
appellants: Adv.
S Tsangarakis
Instructed
by: AZAR
& HAVENGA INCORPORATED
BLOEMFONTEIN
On
behalf of the respondent: Adv.
K Nhlapo
Instructed
by: NIEMANN
GROBBELAAR ATTORNEYS
BLOEMFONTEIN
[1]
Page 2 paragraph 1 of the Notice of Motion
[2]
Annexures "NW 3" to "NW 11" on pages 22 to 32 of
the Founding Affidavit.
[3]
Gien v Gien
1979 (2) SA 1113
at 1120 C
[4]
Van der Merwe and another v Taylor NO and others
2008 (1) SA 1
(CC)
[5]
Section 25(1) provides that "No one may be deprived of property
except in terms of law of general application and no law
may permit
arbitrary deprivation of property"
[6]
1976 (1) SA 441
(A) at 452 A· G