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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 77205/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 6/8/24
SIGNATURE
In the matter between:
MIATEX (PTY) LTD First
Applicant
LCNP MALL (PTY) LTD Second Applicant
and
PAUL LALA First Respondent
BOKANG STEEL (PTY) LTD Second Respondent
CHARMAINE NTHABISENG NEMBAMBULA Third Respondent
VUKA DARKIE CONTAINER MALL (PTY) LTD Fourth Respondent
THE SHERIFF OF THE HIGH COURT BOKSBURG Fifth Respondent
THE SOUTH AFRICAN POLICE SERVICES Sixth Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 10: 00 am on 06 August 2024.
Summary: Actio rei vindicatio . The applicants allege ownership of 31
Containers used to operate a business of running a mall. The fourth
respondent (Vuka Darkie Container Mall (Pty) Ltd) also allege ownership of the
31 Containers. The applicants were not divested of ownership of the 31
Containers and thus entitled to rei vindicatio . The applicants are entitled to
interdictory reliefs. Held: The application was upheld.
JUDGMENT
MOSHOANA, J
Introduction
[1] When relationships between business persons sours, each business
person would take back what belongs to him or her. It is often the case, as
it was the case herein that the involved business persons would be quick
to allege that if assets are brought into the business operation in order to
generate income those assets would belong to the business entity as
opposed to the business person who acquired and brought the assets into
the business operation. A business does not operate along the lines of a
marriage in community of property where the acquired assets belong to a
joint estate. The case punted for by the first respondent in this instance is
akin to a marriage in community of property.
[2] The present is an urgent application launched by two legal entities,
seeking vindicatory and interdictory relief against the first to the fourth
respondents. The application is duly opposed by Paula Lala, the first
respondent before Court. Although voluminous papers were filed in this
application, this matter turns on the question of who the true owner of the
31 containers is. The applicants stake ownership thereof on the one hand
and the first respondent on the other hand alleges that the fourth
respondent, Vuka Darkie Container Mall (Pty) Ltd (Vuka) is the lawful
owner of the aforesaid containers.
Background facts appertaining the present application
[3] Given the limited basis upon which the present application oscillates, it is
obsolete for the purposes of this judgment to punctiliously recant all the
facts as gratuitously littered by the parties in their respective affidavits. To
do so, will serve no treasurable purpose other than to elongate this
judgment unnecessarily. A brief summation of the salient facts shall suffice
in this particular instance. The first applicant is in the busin ess of acquiring
and rent to buy of containers. The onset of the relationship between the
directors of the first applicant and the first respondent commenced when
the first applicant and the first respondent concluded a rent -to-buy
agreement in respect of 9 containers.
[4] In due course, the director of the first applicant developed a business
interest in the space of what is known as “container mall ”1. A discussion
between the relevant persons ensued which culminated in the birth of
Vuka as a legal entity. Prior to the birth of Vuka, some oral agreements
were reached. Of pertinence in this matter is an agreement to make
available 31 containers for the purposes of conducting a business of letting
and hiring of premises through Vuka. The terms of the oral agreements
were reduced to writing in February 2020. There is no dispute between the
parties that in October of 2019 certain agreements were reached. The only
1 Literally it is a shopping mall created through containers.
point of difference is that, as recorded in the not properly disputed minutes,
the 31 containers were availed only for purposes of use and not acquisition
by Vuka.
[5] On the contrary, the first respondent alleges that the 31 containers were
transferred to Vuka as an “investment” as a result of which, the first
applicant relinquished and Vuka acquired ownership of the 31 containers.
Once the 31 containers were availed, they were placed on some land on
the strength of a lease of land agreement. It later emerged that the land
was not appropriately zoned and the Municipality had imposed some
administrative fines. Of particular relevance, i n terms of the said lease
agreement, by 31 July 2024, all business activities carried out of the
containers was required to cease and the lessee was afforded a period of
two months (August to September ) to rehabilitate the leased land back to
its original state prior to the conclusion of the lease agreement.
[6] Owing to the fact that the commercial operations were to cease on 31 July
2024, the first applicant in June 2024 , in order to secure his assets,
attempted to remove the 31 containers from the leased premises . This
attempt was met with acrimony and fierce resistance. Having failed to
secure possession of the 31 containers, the applicants launched the
present application. The application is duly opposed.
Analysis
[7] Before this Court can deal with the limited question pertinent to this matter,
it suffices to briefly deal with the preliminary objection s raised by the
parties. The applicants contend that the answering affidavit of the first
respondent is not properly commissioned since the purported
commissioner (Admin Clerk) is not a designated commissioner of oaths.
Despite the point being pertinently raised at an opportune time , the first
respondent has failed to confirm that the named Admin Clerk is a
designated commissioner of oaths. It was at the tail end of the submissions
that Mr Mpshe, appearing for the first respondent, stated that the Admin
Clerk was a commissioner of oaths in terms of section 6 of the Justices of
the Peace and Commissioners of Oaths Act (Commissioners Act)2. Section
6 of the Commissioners Act deals specifically with ex officio commissioners
of oaths . The section provides that the Minister may, by notice in the
Gazette, designate the holder of any office as a commissioner of oaths for
any area specified in such notice, and may in like manner withdraw or
amend any such notice.
[8] Therefore, regard being had to the provisions of section 6, when
challenged, the first respondent was required to produce at the very least a
notice designating the Admin Clerk as a commissioner of oaths. The first
respondent failed at the opportune time to produce such a notice. This
Court is, und er those limited circumstances, constrained to conclude that
the named Admin Clerk is not designated as a commissioner of oaths.
However, that is not the end of the enquiry. It remains in the discretion of a
Court whether to admit or reject a non -complaint affidavit. Although the
affidavit ex facie suggests that the designated person is an Admin Clerk,
an official stamp of the office of the Clerk of Court in Boksburg was affixed.
On 10 July 1998, the Minister of Justice issued a notice 3 designating Clerk
of the Court and Assistant Clerk of the Court as commissioners of oaths in
terms of section 6 of the Commissioners Act. In this particular instance, the
official stamp o f the designated office was affixed . Impliedly, the affidavit
was commissioned before a designated commissioner of oaths, namely,
the Clerk of Court Boksburg. On application of the maxim omnia
praesumtur rite essa acta (it is generally presumed that acts or events
which occur regularly or routinely have followed a regular or routine
course), and in the exercise of my discretion I must conclude that the
affidavit is acceptable.4
2 Act 16 of 1963 as amended.
3 Designation of Commissioners of Oaths in terms of section 6 GN 903 in GG 19033 10 July 1998.
4 See Cibi and others v PSC and others (3703/2019) [2022] ZAECMKHC 44 (28 July 2022)
[9] At a broad level, there is no basis in law or otherwise for this Court to
conclude that an Admin Clerk is not a Clerk or Assistant Clerk of the Court.
The onus lies on the applicants to prove that the affidavit is defective. The
conclusion to reach is that the affidavit is acceptable and was properly
commissioned, even though the official notice designating Clerks of Courts
as ex officio commissioners was not produced upon the respondents being
challenged. Nevertheless, the notice published in a Gazette is a public
document which the applicants ought to have known of. The applicants ,
despite this objection, nevertheless replied to the alleged defective affidavit
and no prejudice was demonstrated.5
[10] With regard to the locus standi challenge of the first respondent as pleaded
by the applicants, it is by now settled law that a party does not require
authorisation to depose to an affidavit 6. Accordingly, the objection by the
applicants is not upheld. The first respondent also raised three objections;
namely (a) non -joinder of the various occupiers of the containers ; (b) the
lack of urgency; and (c) the existence of the dispute of fact. Regarding the
non-joinder, this Court takes a view that those tenants have no direct and
substantial interest in the relief sought by the applicants. It may well be so
that the occupiers may have a spoliation claim against their lessor.
However, the relief that the applicants are the owners and according them
full ownership rights have nothing to do with the occupiers. No rights of
theirs, if any , shall be affected by the relief sought. Joinder relief is not a
matter of convenience but it is a matter of substantial interest being
demonstrated. In relation to urgency, there is no dispute that the holding of
the containers against the will of the owner amounts to an unlawful act
which unless corrected by this Court will continue. Where there is
continuing unlawfulness, urgency is self -evidently inherent. The applicants
continue to suffer commercially should the Court not intervene.
Accordingly, urgency has been shown to exist. The applicants unless they
5 See S v Msibi 1974 (4) SA 821 (T).
6 Ganes and Another v Telcom Namibia 2004 (3) SA 615 (SCA).
resort to self-help have no other substantial relief in due course other than
to approach this Court.
Who is the owner of the 31 containers?
[11] Turning to the crisp question, this Court must decide who the owner of the
containers is. It is common cause that Vuka was only registered as an
entity on 25 May 2020. As at that time, an oral agreement relating to usage
and availing of the 31 containers was already concluded in October 2019.
Clearly, the existence of the 31 containers predates the birth of Vuka. As
such logic dictates that someone and not Vuka acquired the existing 31
containers. Acquisition by purchase is the most common way to acquire
personal property. The applicants expressly alleged that the containers
were purchased by them although they are unable to produce the records
of the acquisition. The first respondent admits that the list annexed
contained properties of the applicants which are held at the leased
premises. Simply because the applicants played open cards that they were
unable to submit proof of acquisition , the first respondent proverbially
jumped on the bandwagon, and sought to deny ownership because the
applicants are unable to produce proof. To my mind, this is an opportunistic
stance on th e part of the first respondent. In the circumstances of this
case, unless it can be demonstrated that the containers were a res
derelicta leading to October 2019 oral agreements, it follows axiomatically
that since the director of the first applicant was in possession of the
containers he was the owner. It must be remembered that the other means
to prove ownership of a property is through possession7. A person in
possession of a thing (immovable property) is presumed to be the owner.
Thus, even in the absence of the proof of purchase, by mere possession,
the first applicant is presumed to be the owner.
[12] Other than a bare denial, the respondents do not allege that the containers
were purchased by Vuka or at any stage before the oral agreement the
7 See Zandberg v Van Zyl 1910 AD 302.
containers were in the possession of Vuka . The respondents suggest that
there is a genuine dispute of fact and this Court is unable to resolve such a
dispute on the papers. I disagree. There is no genuine dispute of fact
created in this instance . The first respondent simply raised open ended
and rhetoric questions. Such does not raise a genuine dispute of f act
contemplated in the law applicable to disputes of fact. O n the first
respondent’s own version, the containers were brought into Vuka as a form
of an “investment” which secured the director of the first applicant a 45%
stake and directorship in Vuka. Ordinarily, a person makes or secures an
investment (an action of investing money for profit) using his or her own
property. On the allegations made and admitted by the first respondent,
this Court , on application of the Plascon Evans principle must , on the
probabilities accept that the containers were purchased by the applicants
as alleged. Otherwise, how would the containers have mushroomed to
have secured the applicants a stake and directorship in Vuka? On the
preponderance of probabilities, the applicants are the owners of the
containers.
[13] The version of the first respondent that the applicants relinquished
ownership of the containers by delivering them to Vuka with no
consideration is not only improbable but is inconsistent with the usual
manner of conducting business. The version that the containers were
availed for use and not ownership is more probable and is consistent with
the manner in which business is conducted. It is not unusual in the
business world for a property owner to avail it for use whilst at the same
time reaping profits ou t of such use. The applicants availed the containers
for use without rental but took 45% shareholding in the business of Vuka.
This type of a move makes business sense. On the contrary, it makes no
business sense for a business person to lose ownership of a pricey
property without any consideration just to acquire a stake in a business the
profitability of which is unknown. For all the above reasons, this Court
concludes that the applicants are the owners of the 31 containers.
Actio rei vindicatio
[14] Actio rei vindicatio is the action through which an owner who is out of
possession sues to recover possession of his or her property. In such an
action, the claimant must allege and proof that (a) he or she is the owner of
the property ; (b) the other party is holding the property; (c) that the
property still exists and is clearly identifiable 8. On the available evidence,
there is no doubt that the applicants are the owners of the 31 containers
and that other parties are holding the containers. Similarly, there is no
dispute that the 31 containers still exist and are identifiable. In the absence
of an enforceable right the holders of the containers cannot continue to
hold the containers against the will of the owners.
Interdictory reliefs
[15] Owing to the undisputed incidents of 19 June 2024, the applicants seek
interdictory reliefs. It is common cause that when the applicants wished to
exercise control over their property, they were met with some unlawful
resistance. The respondents contend that the applicants resorted to self -
help on 19 June 2024. This is incorrect. The holders of the containers were
not in unlawful possession. The applicants allowed the use of the
containers and upon termination of the use, the applicants were entitled to
demand the return of the containers. A usufruct is a right to enjoy the use
and advantages of another’s property. On termination of the usufruct the
property must be restored to the owner. When the applicants demanded
the return of the property at the end of the usufruct, they were not resorting
to self -help. Now that the respondents have refused to return the
containers, it would have amounted to self -help had the applicants not
approached this Court for a relief.
[16] Undoubtedly, the applicants have demonstrated a clear right to have the
containers returned to them. Any resistance thereto is an unlawful conduct
which is remediable through the special remedy of an interdict. For all the
8 Van Der Merwe and Another v Taylor NO and others 2008 (1) SA 1 (CC) para 14.
above reasons the respondents or any other person associated with the
respondents must be restrained and interdicted from interfering with the
removal of the containers; accessing the containers; and or taking control
of the containers.
Conclusions
[17] Initially, the applicants sought a rule nisi , which was returnable on 19
September 2024. However, since the application was fully argued, counsel
for the applicants was not averse to a proposition that a final relief, if
justified, be made. Counsel for the respondents did not offer any
resistance to this proposal from the bench. In summary, the answering
affidavit of the first respondent is admitted and accepted. The other
preliminary objections are not upheld. The applicants are entitled to the rei
vindicatio relief as well as interdictory reliefs. With regard to costs, in the
exercise of this Court’s wide discretion, the first respondent is ordered to
pay the costs of this application on a party and party scale with counsel’s
fees to be taxed or settled on scale B.
Order
1. The 1st; 2 nd; 3 rd; and 4 th respondents are forthwith ordered to restore
possession and control of 31 Containers identified in Annexure “A” to
the notice of motion to the first applicant;
2. The 1st; 2 nd; 3 rd; and 4 th respondents are ordered to permit , with
immediate effect the first applicant; and/or any third party trucking
service provider nominated by the first applicant ; or the sheriff of this
Court to load and or take control of the identified C ontainers from the
premises known as Vuka Darkie Container Mall situated at 8[...] N[...]
B[...], corner of North Boundary Road and Rondebult Road,
Klippoortjie, Boksburg, Gauteng Province to have those C ontainers
delivered to the first applicant’s nominated address.
3. The 1st, 2 nd, 3 rd, and 4 th respondents and/or any other person
associated to and/or instructed by the se respondents are hereby
interdicted and restrained from i nterfering with removal of the
Containers as ordered in 2 above; blocking or causing the blocking of
the entrance and/or exits of Vuka Darkie Container Mall premises when
the Containers are removed as ordered in 2 above.
4. Forthwith, the 1 st; 2 nd; 3 rd; and 4 th respondents are interdicted and
restrained from interfering with the first applicant’s control, use and
possession of the Containers;
5. The first respondent is to pay the costs of this application on party and
party scale to be settled or taxed at scale B.
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For Applicant: Ms A Van der Merwe
Instructed by: Pretorius Law Incorporated, Pretoria
For Respondents: Mr KH Mpshe
Instructed by: AS Seroka Attorneys, Vosloorus
Date of the hearing: 02 August 2024
Date of judgment: 06 August 2024