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[2021] ZASCA 147
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Smit v Kleinhans (917/2020) [2021] ZASCA 147 (18 October 2021)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No: 917/2020
In the matter
between:
RONEL
NOLEEN SMIT
APPELLANT
and
CALVIN
KLEINHANS
RESPONDENT
Neutral
citation:
Ronel
Noleen Smit
v
Calvin
Kleinhans
(case
no 917/2020)
[2021] ZASCA
147
(
18
October
2021)
Coram:
PETSE
AP, and MOLEMELA, MBATHA JJA and KGOELE and POTERILL AJJA
Heard:
06
September 2021
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on
18
October
2021.
Summary:
Vindication
of property by non-owner –
rei
vindicatio
not available to non-owner – bona fide possessor entitled to
reclaim possession of property by way of a possessory remedy.
ORDER
On
appeal from:
Eastern
Cape Division of the High Court, Grahamstown (Mnqandi AJ, Dawood J
concurring, sitting as court of appeal):
1
The appeal is upheld with costs.
2
The order of the high court is set aside and in its place is
substituted
the following:
‘
1
The appeal is dismissed.
2
There is no order as to costs.’
JUDGMENT
Potterill
AJA (Petse AP and Molemela, Mbatha JJA and Kgoele AJA concurring):
[1]
During June 2017 the appellant, Ms Ronel Noleen Smit (Ms Smit),
concluded a written instalment sale
agreement (the agreement) with
General Motors South Africa Financial Services (GMSA) in terms of
which she purchased from GMSA
a Chevrolet Utility 1.4 2017 model with
registration number [….] (the vehicle). In terms of clause 4.1
of the agreement
GMSA retained the ownership
[1]
of the vehicle whilst Ms Smit undertook to bear all risks of loss or
damage in and to the vehicle.
[2]
When Ms Smit concluded the agreement she was in a romantic
relationship with the respondent, Mr Calvin Kleinhans (Mr Kleinhans).
Simultaneously with the conclusion of the agreement, Ms Smit
concluded an oral agreement with Mr Kleinhans.
[2]
The undisputed terms of the oral agreement were that Mr Kleinhans
would have the exclusive use and enjoyment
of the vehicle for his
personal benefit, but subject to him paying R5 000 to Ms Smit on the
15
th
of every month which amount was equivalent to the
monthly instalment payable to GMSA by the latter. Mr Kleinhans also
undertook
to insure the vehicle and pay the yearly license costs, all
fines accrued in respect of the vehicle and the costs for servicing
the vehicle. It was further agreed between the parties that failure
by Mr Kleinhans to observe any one of these terms would constitute
a
material breach of the oral agreement, entitling Ms Smit to the
immediate restoration of possession of the vehicle.
[3]
During early to mid-2018 the relationship between these two parties
broke down irretrievably. With no
meaningful communication between
them, there was a resultant silence pertaining to the fate of the
vehicle. This was the beginning
of Ms Smit's woes. Mr Kleinhans'
payments to Ms Smit became erratic and in July 2018 only R2 500 of
the monthly amount payable
was paid. Mr Kleinhans also flatly refused
to return the vehicle to Ms Smit despite demand by the latter for him
to do so. As a
result, Ms Smit instituted legal proceedings against
Mr Kleinhans in the regional court Port Elizabeth for the return of
the vehicle.
Mr Kleinhans opposed the application, but the regional
court ordered that the vehicle be returned to Ms Smit and also
granted ancillary
relief.
[4]
In coming to the aid of Ms Smit, the regional court reasoned that by
virtue of being the registered
owner of the vehicle, she was the
lawful owner thereof. Therefore she was entitled to vindicate it by
invoking the
rei
vindicatio
.
And because Mr Kleinhans was admittedly in possession of the vehicle,
concluded the regional court, Ms Smit had therefore discharged
the
onus resting on her.
[5]
Dissatisfied with this outcome, Mr Kleinhans appealed to the Eastern
Cape Division of the High Court,
Grahamstown (the high court). The
high court upheld the appeal and, as a result, set aside the order of
the magistrate's court,
substituting it with an order dismissing the
application with each party to pay their own costs. The high court
held that contrary
to the conclusion reached by the magistrate's
court Ms Smit was not the common law owner of the vehicle. Therefore,
the
rei
vindicatio
did not avail her. The high court reasoned that Ms Smit's reliance on
the National Road Traffic Act 93 of 1996 (NRTA) was misplaced
for she
was an 'owner' purely for purposes of the NRTA and not an owner in
the conventional sense in terms of the common law. In
support of this
conclusion the high court relied on various decisions of this
Court.
[3]
The high court also
made reference to the decision of this Court in
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1993]
1 All SA 259
(A) in which the following was stated (at 259A-B):
'Since its claim is
vindicatory in its nature, ownership was an essential averment which
had to be adequately proved by it.'
Consequently, the
high court concluded that in a claim based on
rei vindicatio
it was incumbent upon a party asserting ownership to prove such
assertion.
[6]
As already mentioned, the high court upheld the appeal with no order
as to costs. This appeal, with
special leave granted by this Court,
is against that order.
Issues to be
decided
[7]
At the core of this appeal is the question whether Ms Smit, as a bona
fide possessor, can rightfully
invoke the
rei vindicatio
to
claim the return of the vehicle. And if the
rei vindicatio
can
not avail her, whether Ms Smit had, on the facts alleged by her,
established that she had a stronger right to possess the vehicle
and
therefore entitled to its return as a consequence of the breach of
the oral agreement between the parties.
Rei vindicatio
[8]
The objective of the
rei
vindicatio
is to restore physical control of the property to the owner, with
ownership forming the basis for such a claim. Three requirements
must
be met for the
rei
vindicatio
to be successfully invoked.
[4]
In this case it is common cause that the vehicle existed and that it
was in the possession of Mr Kleinhans, thus leaving Ms Smit
to prove
ownership. In addition, it is incumbent upon her to prove that Mr
Kleinhans’ right to be in possession of the vehicle
was
lawfully terminated.
[5]
[9]
One of the incidents of ownership, said Jansen JA in
Chetty
v Naidoo
1974 (3) SA 13
(A), 'is the right of exclusive possession of the
res,
with the necessary corollary that the owner may claim his property
wherever found, from whomsoever is holding it. It is inherent
in the
nature of ownership that possession of the
res
should be normally with the owner, and it follows that no other
person may withhold it from the owner unless he is vested with
some
right enforceable against the owner.'
[6]
[10] In
terms of the written agreement between GMSA and Ms Smit the latter is
not the owner of the vehicle; GMSA retained
ownership of the vehicle
until all the amounts owed in terms of the agreement have been paid
in full. Although Ms Smit is the bona
fide possessor of the vehicle,
and bears all the risk of loss and damage in respect of the vehicle
in terms of the agreement, her
possessory right did not entitle her
to re-claim the vehicle through the
rei vindicatio
as she
was not vested with full ownership of the vehicle
.
[11]
Accordingly, Ms Smit's reliance on the motor vehicle licence issued
in her name to prove that she is the owner
of the vehicle is
misplaced. Her assertion that she was the owner as defined in s 1 of
the NRTA
[7]
does not assist her.
Ownership in terms of the NRTA is confined only to the purposes of
the NRTA and whatever else is regulated
by the NRTA. It therefore
follows that the various judgments upon which Ms Smit relied in
support of her contentions that she was
the owner of the vehicle and
could therefore rightfully invoke the
rei
vindicatio
are clearly wrong. However, the conclusion that the
rei
vindicatio
does
not avail Ms Smit is not necessarily the end of the matter. Rather,
it raises the question as to whether Ms Smit had established
under
the rubric of her prayer for further or alternative relief that she
is entitled to have the vehicle's possession restored
to her.
[12]
Undoubtedly, Ms Smit is the bona fide possessor of the vehicle.
However, she relinquished physical possession to
Mr Kleinhans
pursuant to the parties' oral agreement. Ms Smit is, in terms of the
agreement with GMSA, entitled to be in possession
of the vehicle; but
Mr Kleinhans was, in turn, entitled to be in possession of the
vehicle in terms of the oral agreement. For
Ms Smit to be successful
in her claim for the return of the vehicle she must prove that she is
entitled to possession (ie
ius
possidendi
)
and that her right to possession is stronger than that of Mr
Kleinhans.
[8]
Although Ms Smit
did not have the physical possession of the vehicle (detention), she
did have the
ius
possidendi
derived from the agreement with GMSA. To succeed in her claim, Ms
Smit bore the onus to prove that Mr Kleinhans had breached the
parties' oral agreement.
[13] It
was submitted in the heads of argument filed on behalf of Mr
Kleinhans that there was a genuine dispute of fact
on the papers
pertaining to whether there was a breach of the oral agreement.
Consequently, it was contended that the matter could
not be decided
on the papers without referral to oral evidence to resolve the
dispute. The approach to determining whether there
is a factual
dispute was explained in
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A);
1984 (3) SA 623
(AD) at
634H-I as follows:
‘
.
. . It is correct that, where in proceedings on notice of motion
disputes of fact have arisen on the affidavits, a final order,
whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant’s affidavits
which have been admitted by the respondent, together with the facts
alleged by the respondent, justify such an order. The power
of the
Court to give such final relief on the papers before it is, however,
not confined to such a situation.’
[14]
In her founding affidavit Ms Smit stated that: ‘. . . I
concluded the deal in question and the motor vehicle
was subsequently
delivered in my absence to the Respondent’. In his answering
affidavit, Mr Kleinhans said: ‘The Respondent
collected and/or
took possession of the vehicle from GMSA, Williams Hunt Moffet, on or
about 21 June 2017, after the Applicant
signed the instalment sale
agreement with GMSA Financial Service’. Yet, in the replying
affidavit Ms Smit then contradicts
herself saying: ‘I deny that
the vehicle was never delivered to me or that I never took possession
of the vehicle. I maintain
that the vehicle was delivered to me when
I purchased it and I accepted delivery thereof in person’. Ms
Smit alleged that
the monthly instalment that should have been paid
over in July was R5 227.58 and in the reply she does not answer to
the averment
by Mr Kleinhans that the monthly instalment was R4
831.16 per month. Ms Smit baldly denied the further term of the oral
agreement
as alleged by Mr Kleinhans that once the vehicle has
been paid for in full, it would become his sole property. In support
of this averment Mr Kleinhans alleged that he had modified the
vehicle because it was ultimately going to become his property once
it was fully paid for.
[15]
In
Fakie N O v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
this Court stated the following regarding disputes of facts in motion
proceedings (para 55):
‘
That
conflicting affidavits are not a suitable means for determining
disputes of fact has been doctrine in this court for more than
80
years. Yet motion proceedings are quicker and cheaper than trial
proceedings, and in the interests of justice courts have been
at
pains not to permit unvirtuous respondents to shelter behind patently
implausible affidavit versions or bald denials. . . .’
Despite
the shortcomings and what appears at face value to be contradictions
in the affidavits, I am satisfied that final relief
can be granted
without recourse to oral evidence on the basis of the facts averred
in the founding affidavit that have been admitted
by Mr Kleinhans
together with the facts alleged in the latter's answering
affidavit.
[9]
Thus, referral to
oral evidence would be inappropriate because
‘
[a]
real, genuine and
bona
fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed. .
.’
.
[10]
Mr
Kleinhans did not meaningfully address the short payment of the
instalment for July 2018 so as to raise a real and genuine
dispute of fact on the papers.
[11]
[16]
It remains to express our gratitude to Mr S Grobler SC who, together
with Ms R Mofokeng, argued the appeal at the
request of this Court
because Mr Kleinhans had run out of funds. Consequently, his
attorneys were constrained to withdraw and indicated
that there would
be no appearance on behalf of Mr Kleinhans at the hearing of the
appeal. We are grateful to counsel for coming
to the assistance of
the Court in keeping with the best traditions of the Bar and for
their concise and lucid heads of argument.
[17]
Accordingly, the following order is made:
1
The appeal is upheld with costs.
2
The order of the high court is set aside and in its place is
substituted the following:
'1
The appeal is dismissed.
2
There is no order as to costs.’
S POTTERILL
ACTING JUDGE OF
APPEAL
Appearances:
For
a
ppellant:
V Madokwe (heads of
argument prepared by A Beyleveld SC with him V Madokwe)
Instructed
by:
Mandy
Miller Attorneys, Port Elizabeth
Honey Attorneys,
Bloemfontein
For
respondent:
No appearance
For
amicus:
S Grobler SC (with him R Mofokeng)
[1]
Clause 4.1 of
the agreement states: ‘We will remain owner of the Goods until
you have paid all the amounts due under this
Agreement’.
[2]
Clause 2.5
states: ‘All risk in and to the Goods will pass to you and
remain with you when you take delivery of the Goods
or when the risk
leaves the Supplier of the Goods, whichever is the earlier'.
[3]
Estate Shaw v Young
1936 AD at 239;
Dreyer
and Another NNO v AXZS Industries (Pty) Ltd
2006
(5) SA 548
SCA at 550 I-J;
S
v Levitt
1976 (3) SA
476
A.
[4]
See G Muller et al
The
Law of Property:
Silberberg
and Schoeman’s
6 ed (2019) at 269-270 state that the three requirements that the
owner has to prove are: (a) he/she is the owner of the thing;
(b)
the thing was in the possession of the defendant at the commencement
of the action; and (c) the thing which is vindicated
is still in
existence and clearly identifiable.
[5]
Chetty v
Naidoo
[1974]
3 All SA 304
(A);
1974 (3) SA 13
(A) at 15E-F.
[6]
At 20B-C.
[7]
Section 1 of the National Road
Transport Act 93 of 1996 defines 'owner' insofar as is relevant to
this case as:
'(a)
the person who has the right to the use and enjoyment of a vehicle
in terms of . . . a contractual agreement with the title
holder of
such vehicle.'
[8]
27
Lawsa
Second Ed para 118; Also see H Mostert et al
The
principles of the Law of Property in South Africa
(2010) para 4.4.2.3.
[9]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
[1984]
2 All SA 366
(A);
1984 (3) SA 623
;
1984 (3) SA 620
and the cases
therein cited.
[10]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008]
ZASCA 6
;
[2008] 2 All SA 512
(SCA);
2008 (3) SA 371
(SCA) para 13.
[11]
See in this regard
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
TPD at 1163-1165;
Da
Mata v Otto NO
1972
(3) SA 585
(A) at 882D-H.