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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 9452/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 7 November 2024
SIGNATURE:
In the matter between:
ARTHUR JOHN DA COSTA 1ST APPLICANT
SIMCHA DA COSTA 2ND APPLICANT
-and-
SUNSET GAME LODGE CC RESPONDENT
JUDGMENT
BRESLER AJ:
Introduction:
[1] The First Applicant seeks an order for the return of two vehicles to wit:
1.1 The Kruger Safari Vehicle (Nissan Hardbody with registration number:
F[…])
1.2 Land Rover Open Game Vehicle (Land Rover Defender with
registration number: B[…])
[2] The Second Applicant is joined by virtue of her marriage to the First App licant
in community of property.
[3] The Applicant’s cause is premised on the rei vindicatio.
Factual Synopsis:
[4] On or about the 21 st of April 2023, the First Applicant and the Respondent
entered into a written lease agreement (hereinafter the ‘L ease agreement’). Two
further agreements were concluded on the same day being:
4.1 Addendum A, being the sale agreement in respect of the two vehicles
(hereinafter the ‘Sale agreement’) and
4.2 Addendum B, being in respect of the Applicants’ rights to continue
occupying a house situated at the rental premises.
[5] The terms of the Sale Agreement are common cause between the parties and
include:
5.1 The purchase price for the vehicles is R240,000.00;
5.2 The Respondent is obliged to make payment in the amount of
R10,000.00 per month to the First Applicant until the vehicle has been paid in
full.
[6] The Respondent defaulted on the Sale agreem ent and only two payments
were received being an amount of R10,000.00 during June 2023 and a further
amount of R10,000.00 during August 2023.
[7] It is apparent from the papers before court that a dispute arose between the
First Applicant and the Respond ent pertaining to the Lease agreement. As the
circumstances that gave rise to the Sale agreement and the Lease agreement are
more or less the same, the dispute regarding the Lease agreement resulted in the
Respondent informing the Applicant on the 24 th of August 2023 that it cancels the
Lease agreement.
[8] This court is not called upon to determine the basis and validity of the
cancellation of the Lease agreement. Suffice to state that the Respondent informed
the First Applicant that it intends to seize all payments ‘except for the vehicles’.
[9] It is the First Applicant’s version that, on or about the 13 th of September 2023,
the First Applicant consequently cancelled the Sale agreement and demanded return
of the vehicles. The Respondent in return di sputes the cancellation in as far as the
Respondent alleges inter alia that the vehicles were paid in full.
[10] In argument, the Respondent further submitted that the Sale agreement
constitutes a common law credit agreement. No reservation of ownership was
accordingly agreed upon and ownership transferred to the Respondent upon delivery.
The Sale Agreement furthermore do not contain a rouwkoop clause entitling the First
Applicant to retain the payments made. According to the Respondent restitution is
claimed contractually without a reciprocal tender to return performance already made
in terms of the agreement. This renders the relief claimed by the First Applicant
objectionable and the First Applicant therefore cannot succeed.
[11] Surprisingly and contrary to the argument advanced in respect of the transfer
of the ownership, the Respondent also submits that the First Applicant is not the
owner of the vehicle and therefore does not have the required locus standi to
institute proceedings in terms of the rei vindicatio.
[12] In its Counterclaim, the Respondent submits that it was an implied term of the
Sale agreement that the Kruger permit would be transferred to the Respondent
simultaneously with the sale of the vehicle. This is denied by the First Appli cant in as
far as the Kruger permit was issued and belongs to Ntsele Safari (Pty) Ltd and that it
is a non -transferable permit that cannot be sold. The Respondent also claims
specific performance in terms of the Sale Agreement (again contrary to its
submission that the First Applicant does not have the required locus standi to
institute the proceedings.
Legal framework:
[13] The law pertaining to the rei vindicatio is well-known. In Chetty v Naidoo 1 it
was held:
‘The owner, in instituting a rei vindicatio, need, therefore, do no more than
allege and prove that he is the owner and that the defendant is holding the res
- the onus being on the defendant to allege and establish any right to continue
to hold against the owner.’
[14] The maxim, ubi rem meam inv enio, ibi vindico captures the gist of the rei
vindicatio: where my property is found, there I vindicate it.
[15] What lies at the heart of this matter is therefore a determination of the
ownership of the vehicle. The First Applicant have attached two ce ssion agreements
to its Founding papers entered into respectively between the First Applicant and
Ntsele Safaris (Pty) Ltd and the First Applicant and Stephanie da Costa. These
cession agreements were concluded sometime after the Sale agreement was
concluded between the First Applicant and the Respondent.
[16] As stated herein before, the argument raised by the Respondent in respect of
the Counter application is detrimental to its own version and the relief in the Count er
application. Surely, if the First Applicant is not the owner of the vehicle, then no relief
1 1974 (3) SA 13 (A) at 20 C – D
can be claimed in the form of specific performance in terms of the very same Sale
agreement?
[17] As the Respondent’s argument is purportedly premised on the f act that the
vehicles are still ‘registered’ in the names of the erstwhile respective owners, the
Respondent’s line of argument is rejected. Ownership of a vehicle is after all not
dependent on registration thereof at the Licencing Department. Similar to t he
registration of an immovable property, it is merely prima facie proof of ownership. In
this instance, this Court is satisfied that ownership passed to the First Applicant upon
conclusion of the respective cession agreements.
[18] It is apposite to not e that the First Applicant does not claim contractual relief.
Was this the case at hand, this Court would have had to revisit the Sale agreement
to determine if the First Applicant had the required authority to conclude the Sale
agreement on behalf of the de facto owners at that stage.
[19] The case of the First Ap plicant is premised on the rei vindicatio . It must
therefore be determined if the First Applicant was the de facto owner of the vehicles
at the time possession was reclaimed from the Respondent and thus at the
institution of the application.
[20] Even if I am wrong, I am of the view that a finding that the First Applicant was
not authorised to conclude the initial sale agreement, will achieve the same result. If
the Sale Agreement is rendered void, it follows that the Respondent’s possession of
the vehicles is unlawful, and it must be returned to the lawful owner. In terms of the
respective cessions, the vehicles therefore stand to be returned to the First Applicant
being the current de facto owner of the said vehicles.
[21] This brings me to the second argument raised by the Respondent, to wit the
allegation that the Sale agreement constitutes a common law credit agreement. I
agree with the contentions by the Respondent in respect of the legal position
pertaining to common law sale agreements. In essence , the rule is that if the sale is
for cash, then ownership transfers upon payment with delivery, the real agreement
being valid. If the sale is for credit, in other words later payment or payment in
instalments are permitted, then ownership transfers upon delivery alone. In each
instance a valid real agreement remains a necessary element.2
[22] The Sale Agreement contains the following terms:
‘It was further agreed that should the Tenant decide not to purchase the
Property as per the Agreement after the rental period has lapsed, the
ownership of both vehicles has become the property of the Tenant, provided
that the agreed purchase price of R240,000 (two hundred and forty thousand
rand) has been paid in full.’
(own underlining)
[23] It is common cause between the parties that the ‘Tenant’ (Respondent)
elected not the purchase the Property. It follows that the parties specifically agreed
that ownership of the vehicles will pass upon payment of the purchase price.
Ownership was therefore pertinently reserved in favour of the First Applicant.
[24] This court is fortified in its understanding by the judgment in Natal Joint
Municipal Pension Fund v Endumeni Municipality 3 that expounds on the
approach generally to be adopted when interpreting a contract as thus:
‘Interpretation is the process of attributing meaning to words used in a
document be it legislation, some statutory instrument, or contract, having
regard to the context provided by reading the particular provision or provisions
in the light of the document as a whole and the circumsta nces attendant upon
its coming into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to those responsible for
its production. Where more than one meaning is possible each possibility
must be weighed in the light of all these factors. The process is objective, not
2 Mosterd et al, The Principles of the Law of Property in South Africa, Oxford University Press on page
194
3 2012 (4) SA 593 (SCA) 12 paragraph 18
subjective. A sensible me aning is to be preferred to one that leads to
insensible or unbusiness like results or undermines the apparent purpose of
the document. Judges must be alert to, and guard against, the temptation to
substitute what they regard as reasonable, sensible or business like for the
words actually used. To do so in regard to a statute or statutory instrument is
to cross the divide between interpretation and legislation; in a contractual
context it is to make a contract for the parties other than the one they in fact
made. The “inevitable point of departure is the language of the provision
itself”, read in context and having regard to the purpose of the provision and
the background in the preparation and production of the document”.
(own underlining)
[25] The trite wording of the agreement simply does not lead itself to an
interpretation that that parties intended ownership to transfer immediately upon
delivery of the vehicle and the Respondent’s argument in this regard can thus not be
accepted.
[26] The Respondent states at the conclusion of paragraph 4.32 of the Answering
affidavit the following:
‘Having regard to the aforementioned it is clear that the Responde nt is not
indebted to the Applicants in any amount and has in fact paid for the vehicles’.
[27] In considering the alleged ‘payments’ made towards the vehicles, this Court is
not convinced that the vehicles were paid in full at the time when the agreemen t was
cancelled as alleged by the Respondent. The Respondent’s submission is premised
on the basis that the set -off must be applied in respect of several expenses incurred
by the Respondent as more fully set out in Annexure ‘VVR 1’ to the Answering
affidavit.
[28] This Court has the following difficulties with the alleged calculation:
28.1 In paragraph 4.32.1 the Respondent states that a certain payment was
made to Eskom before the Respondent took occupation of the property. This
amount was deducted in terms of paragraph 4 of the Lease Agreement. The
payment was therefore pertinently earmarked as a ‘rental payment’ and
cannot be allocated retrospectively to the outstanding balance on the vehicles.
28.2 Several of the further alleged amounts are similarly earmarked as a
deduction in the rental amount agreed upon.
28.3 In paragraph 4.32.16, the Respondent alludes to an amount of
R4,950.00 that was forfeited to a contractor because further maintenanc e was
prohibited by the First Applicant. In order to ascertain if this amount is due,
surely the Court needs to ascertain if the maintenance was indeed necessary.
It also stands to be noted that this expense is in any event disputed by the
First Applicant.
[29] As correctly concluded by the First Applicant, even if all the alleged set -off
amounts were entertained, the Respondent was still in arrears and the full
outstanding balance was not paid in full.
[30] Ownership of the vehicles did not pass to the Respondent upon delivery, and
the Respondent is in unlawful possession thereof. It follows that the Applicant must
be successful in its claim for the return of the vehicle premised on the rei vindicatio.
[31] As stated before, the Respondent has also instituted a Counterclaim that must
be decided upon by this court.
[32] Counsel for the Respondent has provided the Court with a proposed concept
order providing for inter alia the following relief:
32.1 Declaring the Sale Agreement entered into between the parties to be in
force and effect; and
32.2 Referring the determination of the aforesaid relief to trial.
[33] As a starting point, the Respondent submits that the agreement was not
properly cancelled as the letter demanding performance did not pe rtinently refer to
performance of the Sale agreement. The Respondent articulately states in its Heads
of Argument at paragraph 49 that:
‘... the Applicant makes the fundamental error using the alleged arrear rental,
due in terms of the Lease Agreement, t o the question whether the Sale of
Vehicle Agreement was being breached. As such, the Applicants must proof
that there was a valid agreement, that the Respondent was in breach of the
material term, that the Respondent was placed in mora (an accrued right to
cancel)4 and that the subsequent valid cancellation occurred. The Applicants
have simply not made out that case.’
[34] In this Court’s view, the reliance on the case of Singh v McCarthy Retail Ltd
t/a McIntosh Motors supra is misplaced. This case essentially turns on the question
if a contract may be cancelled as a result of a material breach, or because of an
implied lex commissoria. The learned Olivier JA states at [14]:
[14] As long ago as 1949 it was said by this Court in Aucamp v M orton 1949
(3) SA 611 (A) at 619 with regard to the relevant question that it was not
possible to find a simple general principle which can be applied as a test in all
cases because contracts and breaches of contract take so many forms. In
deciding, in tha t case, whether the respondent was entitled to cancel the
contract, the Court said (at 620)
'. . . nor were the obligations which were broken so vital or material to
the performance of the whole contract that respondent could say that
the foundation of the contract was destroyed'.
[35] It is evident that this case does not support the contention of the Respondent
that the First Applicant failed to place the Respondent in mora , and therefore the
cancellation was invalid.
4 With reference to the cas e of Singh v McCarthy Retail Ltd t/a McIntosh Motors 2002 (4) SA 795
(SCA).
[36] What then is required from the First Applicant to constitute a valid cancellation?
Applying the principles enunciated in Singh v McCarthy Retail Ltd t/a McIntosh
Motors supra it is undeniable that the breach, in as far as the Respondent’s failure
to pay is concerned, is material.
[37] In the case of Scoin Trading (Pty) Ltd v Bernstein NO 5 the Supreme Court
of Appeal expressly dealt with the meaning of ‘mora’. The following is stated:
‘[11] The starting point is therefore an examination of the meaning of mora.
The term mora simply means delay or default. This concept is employed when
the consequences of a failure to perform a contractual obligation within the
agreed time ar e determined. The date may be stipulated either expressly or
tacitly and there must be certainty as to when it will arrive. Thus, when the
contract fixes the time for performance, mora (mora ex re) arises from the
contract itself and no demand (interpellat io) is necessary to place the debtor
in mora. The fixed time, figuratively, makes the demand that would otherwise
have had to be made by the creditor.
[12] In contrast, where the contract does not contain an express or tacit
stipulation in regard to the date when performance is due, a demand
(interpellatio) becomes necessary to put the debtor in mora. This is referred to
as mora ex persona. The debtor do es not necessarily fall into mora if he or
she does not perform immediately or within a reasonable time. In this situation
mora arises only upon failure by the debtor to comply with a valid demand by
the creditor. Mora ex persona is so referred to since it requires an act of a
person (the creditor) to bring it into existence.’
[38] Having regard to the trite terms of the Sale Agreement, no demand was
therefore required or necessitated as mora ex re arises in terms of the agreement
itself. This renders the cancellation valid even in the absence of any demand to
5 2011 (2) SA 118 (SCA) at [11] – [12]
rectify performance. The First Applicant was under no obligation to place the
Respondent in mora.
[39] The remaining issue pertains to the Kruger permit. T his court do not need to
make a finding on the question if the permit was included in the merx or not. Having
found that the cancellation is valid, that the Respondent is in unlawful possession of
the vehicles and that same stands to be returned, the issue of the Kruger permit is
moot. The Respondent has conceded in its Heads of Argument that the vehicle and
the permit is essential and that the permit was ‘transferred, as part of the sale’. As
there was not ‘transfer’ subsequent to the sale, it follows that the permit could not
have, and in fact was not transferred at all.
[40] On this basis, there is no need to refer the determination of the Counter
Application to trial. It would serve no purpose as the Counter Application is fatally
flawed in law. The Counter Application therefore stands to fail with costs.
[41] It is in any event questionable if the permit, by its very nature, could have
been transferred. Contractual rights of this nature are normally personal to the
individual involved ( delectus personae). If indeed this is the case, these contractual
rights would not have been susceptible to cession or transfer.6
Costs:
[42] There is no reason why the costs should not follow the outcome of the
proceedings, and the Applicant is thus entitled to its costs in respect of both the Main
Application as well as the Counter Application. The Court is however not convinced
that a case has been made out for a punitive cost order.
[43] Having regard to the nature of the proceedings, the duration thereof, the
extent of the pleadings and the importance to the parties, it will be just if the costs of
counsel are allowed on Scale C.
6 University of Johannesburg v Auckland Pa rk Theological Seminary and Another 2021 (6) SA 1 (CC)
at [58] to [59]
Order:
[44] In the result the following order is made:
44.1 The Respondent is ordered to forthwith return the following
vehicles to the Applicants more fully described as:
44.1.1 The Kruger Safari Vehicle
Make and model: Nissan Hardbody Reg No: F[…]
Vin No: A[…]
44.1.2 The Land Rover Open Game Vehicle
Make and model: Land Rover Defender
Reg No: B[…]
Vin No: S[…]
(the ‘Vehicles’)
44.2 Should the Respondent fail to return the Vehicles to the
Applicants, the Sheriff of the High Court, Limpopo Division shall be
directed and authorised to attach and remove the vehicles and to deliver
same to the Applicants.
44.3 The Counterclaim instituted by the Respondent is dismissed.
44.3 The Respondent is ordered to pay the Applicants’ costs pertaining
to the Main Application and the Counterclaim including costs to counsel
on Scale C.
M BRESLER
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE FIRST AND SECOND : Adv. WC Carstens
APPLICANT
INSTRUCTED BY : Askingon Attorneys
Andrew@askattorneys.co.za
FOR THE RESPONDENT : Adv. RJ Groenewald
INSTRUCTED BY : Joubert & May Attorneys
aldo@joubertmay.co.za
DATE OF HEARING : 7 August 2024
DATE OF JUDGMENT : 7 November 2024