IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE NUMBER: 10304/23
In the matter between
OCKERT MARAIS APPLICANT
and
NICHOLAS MELCK FIRST RESPONDENT
BERNARD VAN VUUREN SECOND RESPONDENT
JUDGMENT
Date of hearing: 23 October 2024
Date of judgment: 1 November 2024
BHOOPCHAND AJ:
1. Kalahari melons (Citrullus vulgaris) have adapted to drought and heat and grow
wildly in the semi-arid savanna, spanning Namibia, Botswana, and South Africa.
The San peoples of the Kalahari hold the rights of this flora in South Africa . Any
person wishing to exploit the wild melon needs the consent of the San and the
Department of Environmental Affairs . The oil, processed from its seed , is rich in
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linoleic acid, an omega-6 polyunsaturated fatty acid. The oil is used in a variety of
cosmetics internationally. The Kalahari melon has been used for over 4,000 years
by the San people of the Kalahari. They ground the seed into a paste and used it to
protect their skin against the harsh desert elements, while the pulp mixed with
water was used as a sunblock or as a potion for a healthy, blemish -free
complexion.1 This is the case of the uncle, a farmer who tilled the soil and toiled
relentlessly with his crops until the sun parched the earth, dried the dams and
killed his yield. This is the case of the globe-trotting nephew who, together with the
uncle, harvested the wild and sold off the oil until each demanded more of what
the other had, the nephew the oil and the uncle the spoils.
2. This application concerns the removal of farming equipment used to harvest the
wild melon from the Applicant's farm. The Applicant is a farmer in the North West
district of Vryburg. It concerns proof of ownership and the vindication thereof,
although the means of recovery becomes conflated between founding and
replying affidavits. The application commenced ex parte on 26 June 2023 . The
equipment involved included two tractors, two ranking machines and two
harvesters (“the equipment”). They were removed on the Second Respondent ’s
instruction with the Applicant's consent and relocated to the First Respondent’s
farm in the Western Cape. The First Respondent takes no part in this application.
3. The notice of motion commences with the allegation that the equipment was “for
the Applicant to use” . The Applicant sought its repatriation and undertook to pay
the transport costs, keep the equipment in good working order, and not alienate
them until the return date of the rule nisi . The rule called upon the Second
Respondent to show cause why the order for the return of the equipment should
not be made a final order.
4. A notice of motion informs the Respondent and the Court of the relief or remedy
(i.e., the order) sought by the Applicant . The founding or supporting affidavit to a
1 From various sources
3
notice of motion sets out the grounds upon which the relief is claimed. Sufficient
facts (the evidence) must be disclosed to prove a cause of action. The founding
affidavit contains the core allegations or assertions a party needs to establish to
succeed (the facta probanda ) and the facts or evidence to support those core
allegations (facta probantia). The Applicant’s case stands or falls by the contents
of his founding affidavit. New information or issues not included in the founding
affidavit may not be raised in a replying affidavit. There are exceptions to the latter
rule, but they do not apply to this application. A replying affidavit aims to rebut
issues raised by a Respondent in his answering affidavit. It does not constitute an
opportunity to include new issues or information the Applicant forgot to include in
his founding affidavit, nor is it an opportunity to introduce a whole new cause of
action.2
5. The Applicant states that he is a director and shareholder of African Origins
Farming (Pty) Ltd (“African Origins”) . He cites the First Respondent , Nicholas
Melck, a farmer residing on the farm Doornfontein i n the Bergriver Municipality,
Western Cape Province, as the holder of the equipment removed from his farm .
The Second Respondent, Bernard van Vuuren, holds dual citizenship and resides
in the United Kingdom. The Second Respondent instructed a moving company to
remove the equipment from the Applicant’s farm and relocate it to that of the First
Respondent.
6. The Applicant alleges that he established a joint venture, African Origins Oil (Pty)
Ltd (“African Origins Oil JV”), with the Second Respondent to exploit the Kalahari
melon seed for its cosmetic use. He became the equipment owner as part of the
Second Respondent’s contribution to the joint venture. He would provide the seed
oil (Mokate oil) for the Second Respondent to sell internationally through the
latter’s company, African Origins UK (“Origins UK”) . T he Second Respondent
would provide the equipment to harvest the melon and process the seed to extract
the oil . The Applicant alleges that he and the Second Respondent agreed to
2 Civil Procedure, A practical Guide, Pete, Hulme, du Plessis, Palmer, New Africa Books (Pty) Ltd,
2005, at pages 132-140
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procure the two tractors and the harvesting equipment. He registered the tractors
in his name and paid for their licensing , servicing, and insurance . He paid
R100 000 to import harvesting equipment sourced from Türkiye. The Applicant
valued the equipment at approximately R1.6 million. He alleged that the Second
Respondent sold vast volumes of the melon seed oil.
7. On 23 February 2023, t he Applicant consented to the Second Respondent
removing the equipment used on his farm for about two years since its
procurement. The Second Respondent intended to use the equipment to harvest
wild melons in the Velddrift area of the Western Cape Province. The Applicant
understood that the equipment would be returned to him in time for the harvest of
the melons on his farm. The tractors were serviced at the Second Respondent’s
request, and the equipment was duly moved. The equipment was not returned to
him.
8. The Applicant alleges that his relationship with the Second Respondent soured for
reasons unrelated to this application. The Applicant holds all permits to plant,
harvest, and produce the Kalahari melon seed oil and sell it . The Second
Respondent had no permits but unlawfully planted and harvested the melons. The
Applicant pays the San people a royalty every six months to exploit the wild
melons.
9. The Applicant asked the Second Respondent to return the equipment. The Second
Respondent declined and instructed the First Respondent not to return it. The
Applicant does not state that the Second Respondent challenged his right to
ownership but alleges that the Second Respondent cited some form of storage
agreement and third -party contract with an investor known as Trend. The
Applicant denied any storage agreement and asserted that he had no contact with
any person from an entity known as Trend. These aspects become clearer in the
answering affidavit.
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10. The Applicant attempted to open a case against the Second Respondent with the
South African Police Services (“SAPS”). He wanted the SAPS to assist him in
retrieving the equipment. The Applicant requested the SAPS to investigate the
Second Respondent for theft, unlawful refusal to return the equipment, operating
the vehicles without registration or licens es or his consent as the owner,
fraudulent misrepresentation to the tractor dealership that the Second
Respondent undertook to pay for the servicing of the tractors, and the unlawful
planting and harvesting of the melons without the necessary permits and
consents. The SAPS declined to assist as the Applicant had consented to
removing the equipment. The SAPS advised the Applicant to pursue a civil claim
against the Second Respondent. The Applicant instituted this application ex parte,
fearing the equipment would be moved if he served his papers on the
Respondents.
11. It is appropriate to chronicle how the application evolved before the Court
addresses the Second Respondent’s answer to the allegations in the Applicant’s
founding affidavit. On 25 August 2023 , Cloete J ordered that the ex parte
application be served on the Respondents and that the matter be postponed to 4
October 2023. The Second Respondent filed his notice to oppose on 2 October
2023. The Second Respondent filed his answering affidavit and a
counterapplication on 20 November 2023. The Applicant filed a notice to oppose
the counter application dated 22 November 2023. On 28 November 2023, the
Applicant applied for security of costs in terms of Rule 47. The Applicant required
that the Second Respondent pay R850 000 in to court or provide an attorney’s
undertaking for the amount. On 23 January 2024, the Second Respondent filed a
security bond of R140 000. On the same date , the Second Respondent made a
successful chamber book application to have the Applicant file his replying
affidavit to the main application and his answering affidavit to the
counterapplication. The application was granted on 20 March 2024 with costs
against the Applicant. The Applicant filed his replying affidavit and his answer to
the counterapplication on 2 April 2024. The matter was removed from the roll on 2
May 2024. On the 25 August 2024, the matter was postponed to 4 October 2024 .
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On 4 October 2024, the matter was again removed from the roll. The application
was set down for hearing on Wednesday, 23 October 2024. On Monday , 21
October 2024, the Second Respondent withdrew his counterapplication and
tendered the wasted costs occasioned by the withdrawal.
12. The Second Respondent filed a lengthy answering affidavit. The Court will focus
on the answers pertinent to the adjudication of this application . The Second
Respondent confirms that he resides in London. The Second Respondent raised a
point of non -joinder on the basis that one ranking machine and one harvester
belonged to Origins UK and prayed that the application be stayed until Origins UK
had been joined. The Second Respondent abandoned this point when his written
argument was filed.
13. The Second Respondent hone d down on the Applicant’s cause of action . As the
Applicant claimed owner ship of the equipment , he would be entitled to reclaim
possession of the property with the rei vindicatio. The Second Respondent states
that the central issue in this application is whether the Applicant has proven he is
the owner of the equipment. He submits that the Applicant has failed to discharge
that onus. The Applicant did not claim that he had purchased the equipment.
14. Counsel for the Second Respondent argued that the onus to prove ownership lies
on the Applicant.3 The rei vindicatio is premised on the notion that an owner may
not be deprived of his property against his will and is entitled to recover property
from any person who retains possession without his consent.4 Registration of the
tractors in the Applicant 's name is not proof of ownership . Ownership for the
National Road Traffic Act , 93 of 1996, is confined only to that Act and does not
prove common law ownership.5 Proof of ownership acquisition depends upon five
requirements. They are delivery, in the form that the law allows, by a person
3 Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A) at 82A, Ruskin NO v Thiergen
1962 (3) SA 737 (A) at 744 C
4 Chetty v Naidoo 1974 (3) SA 13 (A) at 20B
5 Ronel Noleen Smit v Kleinhans (case number 917/2020) [2021] ZASCA 147 (18 October 2021) at
para 11
7
entitled to pass ownership, that the person passing ownership should have
intended to pass ownership, and that the person acquiring ownership should
intend to receive ownership. 6 The requirements apply to the acquisition of the
equipment identified by the Applicant. The Second Respondent submitted that
the Applicant had not met any requirements for acquiring ownership and had not
produced any evidence to discharge the onus.
15. Delivery ( traditio), as an element of the transfer of ownership , is the transfer of
physical control of a moveable to the transferee to enable him to exercise control
of the movable with the intention to be the owner (animus domini). This had to do
primarily with the principle of publicity in that the physical control, in the context
of a transfer of ownership, indicates that the transferee receives the movable with
the intention of acquiring ownership of the movable. 7 The d evelopment of
common law allowed for cases where less publicity is attached to the act of
transfer, thereby permitting physical delivery and delivery where there is a lack of
a real or clear act of transfer, such as in fictional or constructive delivery (traditio
ficta).
16. The Applicant alleged that he and the Second Respondent agreed to procure two
tractors to assist with the harvesting. The two tractors were registered in the
Applicant's name on or about 15 April 2021 and 21 April 2021. Both were procured
in Potchesfroom. Procuring the tractors was the Second Respondent’s
contribution to the joint venture in return for the oil delivered by the Applicant to
the Second Respondent. In 2020 and 2021, the harvester and ranking machine
arrived in South Africa from Türkiye. The Applicant alleges that he paid about
R100 000 to import the equipment. In the latter instance, the Second Respondent
partially contributed to the equipment used in the joint venture.
17. The Second Respondent denied agreeing to procure two tractors to assist with the
harvesting. As advised and represented by him, Trend Global Corporation Limited,
6 ABSA Bank Ltd t/a as Bankfin v Jordashe Auto CC 2003 (1) SA 401 (SCA) at para 16
7 Introduction to the law of Property; Van Der Walt, Pienaar, 2nd ed, Juta 1997 at page 171
8
registered in the British Virgin Is lands and referred to as ‘Trend’ thus far,
unilaterally decided to purchase two tractors to use in other farming ventures. The
Second Respondent diverted them for the Applicant ’s use. The Second
Respondent decided, as he was not based in South Africa and had, up until 2022,
had a good relationship with the Applicant , it would be expedient to register the
tractors in the Applicant’s name to comply with the National Road Traffic Act. The
Second Respondent denied that the purchase of the tractors was his contribution
to the joint venture. The joint venture had been dormant for six years when the
tractors were purchased. The Applicant had ben efited from using the equipment
while he explored other ventures where the equipment would be used.
18. The Applicant’s reply to the Second Respondent ’s answer concerning the
equipment ownership elicited the response that it was ‘an absolute blatant lie ’.
The Applicant then made scurrilous claims against the Second Respondent,
accusing him of using Trend as a money laundering entity and as king rhetorically
why the cash-flush Trend disappeared. He volunteers the answer, alleging that the
Second Respondent had to close it down to erase its trading history and financial
records.
19. The sole cause of action identified in the Applicant’s founding affidavit was that he
owned the equipment and sought its vindication. There is no indication in his
founding affidavit that he relied upon spoliation or a breach of contract or sought
a declarator of ownership to substantiate the orders he sought in his notice of
motion. He alleges that he became the equipment owner as it was the Second
Respondent’s contribution to the joint venture. The Applicant does not allege that
there was an agreement or that he could rely upon the conduct of the Second
Respondent to claim ownership of the equipment. Neither does the Applicant
allege co-ownership of the equipment.
20. The test of whether the Applicant has discharged the onus of proving his
ownership of movable property, which is not in his possession , is whether, in the
result, the probabilities are balanced in his favour. The strength of the evidence
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that he has to produce to succeed depends upon the circumstances of the
particular case.8 Once the Applicant has established acquisition of ownership on
a balance of probabilities, a rebuttable presumption that he is still the owner
arises. In the case of movable property, the onus of proof is much heavier since
there is a presumption that the person in physical control of the thing is also the
owner. To satisfy the onus of proof, the Applicant must rebut this presumption.9
21. The Applicant did not specify any of the requirements that would have entitled him
to acquisition of ownership of the equipment . Whilst the physical delivery of the
equipment to the Applicant, and perhaps his intention to receive the equipment
as its owner, could be inferred from his allegations, the other requirements were
not easily discernible. It could be argued that the Applicant had accepted the
ownership obligations by registering, insuring , licensing, and servicing the
equipment. He falls short on the requirement that the Second Respondent
intended to transfer ownership when he alleges that the equipment fo rmed the
Second Respondent’s contribution to the joint venture . Even in making the latter
allegation, the Applicant fails to equate a contribution to the joint venture to mean
the conferral of ownership of the things to him. He may have prov ed that the
Second Respondent, as a representative of the owners, could have transferred the
equipment to him, but he disavowed any knowledge or interaction with Trend and
doubted whether Origins UK could afford the equipment. By consenting to remove
the equipment, the Applicant had effectively jettisoned any reliance on a
spoliation order or vindicatory relief.
22. The Second Respondent has not alleged that he clarified the ownership of the
equipment with the Applicant during the two years that the Applicant had used it.
However, the Second Respondent has provided sufficient information to dispel
the Applicant’s claim of equipment ownership. The failure of the Applicant to
prove ownership of the equipment would have been the end of the application but
8 Ebrahim v Deputy Sheriff, Durban 1961 (D)
9 Law of Property (supra) at page 192
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for the further developments that require the Court to traverse the affidavits
further.
23. An action based on the rei vindicatio is available to an owner who has been
deprived of his or her property without consent or in an unlawful way and wishes
to recover it from the one who retains possession. To succeed with any vindicatory
action, generally, in addition to ownership, the applicant must prove that the
property was in the respondent’s possession when the proceedings commenced,
it still exists, and is identifiable.10 An owner will not succeed with the rei vindicatio
if the person in control of the thing can prove that he is in lawful control of it.
24. The Applicant alleges that o n 23 February 2022, the Second Respondent
requested that the equipment be moved to Velddrift to harvest melon seeds. The
equipment would be returned in time for the Applicant’s harvest. The Applicant
agreed. The equipment was moved but not returned even though the Applicant
asked the Second Respondent to do so. The Second Respondent alleged that the
equipment was moved to Velddrift on his instructions. H e was the authorised
representative of the equipment owners and, therefore, entitled to move the
equipment. He arranged and paid for the equipment to be moved. He did not
agree that the equipment would be ret urned to the Applicant, nor does the
Applicant have a right to demand their return. The Second Respondent alleged
that he had identified several opportunities in the Western Cape and had moved
the equipment to be stored with the First Respondent until he could r ecover the
remaining equipment held by the Applicant. The recovery of the remaining
equipment was the subject of the counterapplication. The equipment is sitting
idle on the First Respondent’s farm.
25. The circumstances relating to moving equipment to the First Respondent’s farm
are troublesome. The Applicant agreed to its removal from his farm on the
10 Van Der Merwe and Another v Taylor NO and Others (CCT 45/06) [2007] ZACC 16; 2007 (11) BCLR
1167 (CC); 2008 (1) SA 1 (CC) (14 September 2007) at para 22, Law of Property (supra) at page 190
11
understanding that it would be used for harvesting melon seeds in Velddrift and
returned to him in time for the harvest in the North West province . The Second
Respondent avoided answering this specific allegation. The question arises as to
whether the Applicant would have consented to the removal of the equipment if
he had known that the Second Respondent did not intend to return it. It is highly
unlikely that the Applicant would have agreed to service the equipment and agree
to its removal from his farm if he did not expect the equipment to be returned to
him in time for the harvest. It would, therefore, seem that the Second Respondent
had removed the equipment on a false pretext. The Second Respondent’s Counsel
did not see anything untoward in this form of self-help. The Applicant alleged that
removing the equipment under false pretences was unlawful, but the case he
relied upon did not exploit this issue.
26. The Second Respondent admitted the jurisdiction of this Court to hear the
application. He ha s been involved with two companies, namely Origins UK and
Trend. Trend had given him a power of attorney to act on their behalf and explore
investments in the South African agricultural sector . Trend had no interest in the
Kalahari melon seed oil project for the cosmetic market. Their interest centred
around food commodities with innovative value-added potential.
27. On 2 April 2021 , Trend purchased an automatic pumpkin seed harvester and
ranking apparatus from Türkiye, which cost US$ 27,000. Trend intended to acquire
ownership; the Turkish company invoiced Trend, and it paid the purchase price.
The harvester and ranking machine were shipped to the Durban port and
transported to the Applicant’s farm by road . It was used to harvest the
melons but remained Trend's property. One of the two tractors was purchased for
US$29545.21. The tractor was transported to the Applicant’s farm. Applicant used
the tractor with the Second Respondent’s permission , acting as the authorised
representative for Trend.
28. As the Second Respondent was not based in South Africa, he decided that it would
be expedient to register the tractor in the Applicant’s name. The Second
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Respondent referred to other equipment owned by Trend , which w as in the
Applicant’s possession. The Second Respondent supported these contentions
with documentary proof. The Second Respondent alleged that the Applicant
refused to sign a storage agreement and to allow Trend’s equipment to be removed
from his farm. Trend decided to cease its business activities. It was necessary to
transfer ownership of, among other goods, the equipment to him. Trend and the
Second Respondent agree d on the assignment of rights. The documentary proof
of the concluded agreement was provided. The Second Respondent conten ded
that he became the equipment owner through the assignment of rights. The
Second Respondent also provided proof of purchas ing an automatic pumpkin
harvester and ranking machine from Türkiye for US$17 750. The latter equipment
belonged to Origins UK.
29. The equipment referred to by the Applicant is part of a much larger stock of
vehicles and equipment the Applicant holds. Although the Applicant used them to
harvest and process Kalahari melon seed oil, Trend had intended to use them in
other ventures as they had broad application . They were intended for use in
developing herbs, ferments, certain fruits like dates , olive or castor oil, and
alternative proteins as byproducts of soya, castor, and sunflower oil. Kalahari
melon seed oil could not be considered a commodity seed oil. The market volume
was too small.
30. The Second Respondent stated that African Origin Oils JV had been a dormant
company since about 2016, awaiting de-registration due to failure to comply with
its annual returns. Proof that the company awaits final deregistration was
provided. Four persons had incorporated the company, including the Applicant
and the Second Respondent. As the communication and collaboration with the
two other participants were not working, all company activities were halted after
one year of its inception. There was no joint venture, as the company had been
dormant for about seven years. The Second Respondent subsequently
incorporated Origins UK. He had independently built up a network of suppliers and
international buyers and aimed to trade in cosmetic oils.
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31. The Second Respondent had identified and sourced the Kalahari melon see n oil
from a farmer in the Free State . This arrangement commenced in 2016 and
terminated in 2018 when the European customer he had sourced to buy the oil
discontinued the cosmetic range that used the oil. As the Applicant lacked the
finances and equipment required to produce the oil , the Second Respondent
transferred R523 397 from 2016 to 2018 to the Applicant. Until then, the Applicant
had neither contributed nor supplied him with oil. The Second Respondent
asserted that he had developed this market and found a producer independent
from the Applicant.
32. The Second Respondent advised the Applicant in May 2017 to register a company
to obtain an export permit so that he could potentially supply the same oil that the
Second Respondent was buying from the Free State farmer. The Applicant
eventually registered African Origins Oil. The Applicant started producing oil in
2018 after Origins UK purchased a small oil press from Germany and delivered it
to the Applicant’s farm. He intended to help his uncle , who was suffering the
effects of a prolonged drought , to “find his feet” as a producer and supplier of
Kalahari melon seed oil, which was indigenous to his region and more resistant to
the extreme weather than other popular local crops like maize, sunflower, and
peanuts. In 2019, the Second Respondent obtained an industrial research and
innovation grant from the British Government to research melon oil's
industrialisation and social impact potential. He involved the Applicant in the
project. The Applicant was compensated for his participation in the project. The
Second Respondent explained how the research funds were dispersed, the details
of which need not be reproduced here.
33. The Second Respondent denied any joint venture between the Applicant and him
or that the Applicant was the operations arm of the company and he was the
marketing agent. The Applicant did not achieve or do anything to warrant such a
status. The Second Respondent contributed significant time and money to the
Applicant to establish a semblance of operations on his farm. Only in 2022, when
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the Applicant had millions of rands of equipment on his farm which did not belong
to him, did he begin making claims of a joint venture between them. The Second
Respondent h ad to employ a consultant to assist the Applicant with all work
beyond the planting and harvesting of the oil, namely the general paperwork,
certification, packaging, deliveries, exports, and adherence to regulations.
34. The Second Respondent denied that he and the Applicant had agreed to procure
two tractors to assist with the harvesting. Trend took the unilateral decision after
he advised them to procure it for other farming projects. He denied that the two
tractors were his contribution to the joint venture . The tractors were purchased
after the jo int venture company had been dormant for at least five years. He
allowed the Applicant to use the equipment while exploring opportunities to use
the equipment in other ventures. He had made it clear to the Applicant that they
would sign some kind of storage agreement to cover the equipment held on his
farm. The Applicant was initially receptive to concluding the storage contract but
later reneged.
35. The Second Respondent states that the first harvesting machine and ranking
apparatus bought by Origins UK arrived around September 2019, not 2022, as the
Applicant alleged. He notes that the Applicant did not provide proof that he had
paid the alleged sum of R100 000. The Second Respondent paid the Applicant for
the oil the Applicant produced. The Applicant was not entitled to the financial
statements for Origins UK. He disputed the Applicant’s allegations that the latter
had produced “vast” amounts of oil. The Second Respondent considered “vast”
to mean at least 50 -60 tonnes per year. He did not think the Applicant had ever
exported more than ten tons over all the years.
36. The Second Respondent admitted that h is relationship w ith the Applicant had
strained. The Applicant’s farming practices and yields per rand spent were not
commercial, and the continuation thereof was in the balance. In April 2022, the
Applicant declined to sign a storage agreement. The court notes that the
equipment had been removed from the Applicant’s farm , and the tentative
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agreement probably pertained to the other equipment retained by the Applicant.
Trend concluded a storage agreement with the First Respondent in June 2022 for
the storage of the equipment removed from the Applicant’s farm.
37. The Second Respondent denies that the Applicant holds all the permits to
produce melon seed oil in South Africa. He states that there are several other
permit holders in South Africa. There are other supp liers of melon seed oil from
Namibia, Zimbabwe, and Botswana that do not require permits and who export
the oil to international markets. The second Respondent admits that he cannot
produce Kalahari melon seed oil. He does not require a permit as he and his
company do not intend to produce the oil as they buy it from registered suppliers
such as the Applicant and sell it internationally.
38. The Second Respondent sought to introduce a “without prejudice”
communication between the Applicant ’s attorney and the Second Respondent’s
wife to prove that he owned the equipment. The Second Respondent alleged that
he could rely on the letter's content as it was addressed to his wife , Olga Van
Vuuren. The letter could not be considered as privileged. The Second Respondent
referred to a confirmatory affidavit from his wife. The affidavit could not be found
in the court file. Communications marked ‘without prejudice’ are generally
inadmissible in court proceedings. There are exceptions to the rule, but they find
no application in this instance. The Second Respondent conflates legal privilege
with ‘without prejudice’ communications. A client can waive legal privilege . The
Second Respondent’s wife was not the client of the Applicant’s attorney, and the
Second Respondent was not permitted to disclose the communication. The Court
has not relied on its content nor the allegations in paragraphs 69 to 73 of the
answering affidavit. The attachment, marked ‘AA 19’ and those paragraphs are
struck from the record.
39. The Second Respondent denies that any invoices from the Landini dealership
prove the Applicant’s ownership of the equipment. The invoice is not from the
dealership where the tractors were procured. He also denies that the payment of
16
insurance premiums, the costs of licences, or the payment of servicing proves
ownership. The Second Respondent denies that he has committed any crime. The
application was brought ex parte, not to alert the Second Respondent to move the
equipment as alleged but to deceive the Court and steal a march on him by
obtaining an advantage before he could respond to the application.
40. The Court emphasises that the allegations attributed to the Second Respondent
and traversed thus far are entirely from the Second Respondent ’s answering
affidavit. The Court has ignored the affidavits in the counterapplication or the relief
sought therein.
41. In his reply to the S econd Respondent’s answering affidavit, the Applicant takes
issue with the allegation made by the Second Respondent that he had not
satisfied the requirements for a rei vindicatio. He was advised that although the rei
vindicatio is the mechanism utilised to reclaim possession of an asset, the act
itself is referred to as spoliation. He states that although it might be overly
technical, the reason a rei vindicatio was sought and not a mandament van spolie
was because the spoliator was hard to define, as it appears the First Respondent
acted upon the instructions of the Second Respondent and an agent was used to
move the equipment. The burden of proof was exactly the same, i.e., peaceful ,
undisturbed possession, deprivation of poss ession, and deprivation occurring
unlawfully without his agreement. Counsel representing the Applicant distanced
herself from her Client’s interpretation of the law equating spoliation to
vindication and denied any part in providing this legal advice to her Client. The
Court shall merely state, largely for the Applicant's benefit, that the two causes of
action are separate with different requirements and leave it there.
42. Counsel for the Second Respondent was not inclined to ignore the Applicant’s
belated reliance on spoliation and the creative manner wherein it was introduced
in the replying affidavit. In his written argument, he stated that an applicant cannot
merely make out a prima facie case for the order but must prove the facts
17
necessary to justify the order.11 He stated there was no reason to reject the Second
Respondent’s version and that it was not agreed that the equipment would be
returned to the Applicant’s farm. The Second Respondent submitted that it had
always been the practice of the Courts to strike out matter s in replying affidavits,
which should have appeared in the founding papers.12 The Applicant’s case in the
founding affidavit is that the tractors are registered in his name, and the equipment
belonged to him. The Applicant did not allege in his founding affidavit that he had
been wrongfully deprived of possessing the equipment.
43. The Applicant states that the purpose of a replying affidavit is simply to reaffirm
submissions made in a founding affidavit or waylay submissions made in an
answering affidavit and answer any new issues raised. The Court reminds the
Applicant that the purpose of the replying affidavit is to rebut issues raised by the
Respondent in his answering affidavit , if required, and do es not constitute an
opportunity to create a whole new cause of action . It has been held that a party
will not be allowed to canvass a case in its founding papers and then anoth er in
reply. Allowing this might prejudice the opponent as it might not have a chance to
respond to the case made in reply. In rare instances where this is countenanced,
the set of affidavits allowed in motion proceedings might increase from three to
five.13
44. On the issue of non-joinder, the Applicant understood it to mean that the Second
Respondent did not want the application to move forward until Origins UK had
been joined. The Applicant alleged that the entity the Second Respondent did not
wish him to join no longer existed. The Applicant also took issue with the Second
Respondent’s chamber book application to compel him to file his replying and
answering affidavits. He alleged that the Second Respondent’s power of attorney
had expired in December 2022. The Second Respondent did not attach any
affidavit from the directors of Trend to confirm the allegations relating to them or
11 Erasmus, Superior Court Practice , D7-15, Nienaber v Stuckey 1946 AD 1049
12 Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others 1974 (4) SA 362 (T) at 368H
13 Union Finance Holdings (Pty) Ltd [2001] JOL 7162 (W)
18
that the company incorporated in the British Virgin Islands ever existed. If Trend no
longer existed, it w ould be the task of the executors, trustees, or liquidators to
contact him to request the return of their assets. The Applicant asked that all
references to Trend in the founding affidavit be struck out.
45. The Second Respondent’s allegations in the answering affidavit were supported
by candid and exhaustive replies to the allegations in the founding affidavit , and
he provided sufficient documentary proof where required. The replying affidavit is
an emotional outburst con taining intemperate language, hearsay information,
and scandalous, defamatory, and vexatious material . As an example of a
contradictory matter introduced in the replying affidavit, the Applicant states that
he terminated the joint venture in reply to allegations that the entity was dormant.
In contrast, he relies on the existence of the joint venture in the founding affidavit
to prove the transfer of owner ship by agreement . The Applicant states in his
replying affidavit that he was the bona fide owner and possessor in terms of the
joint venture agreement, and the equipment should be returned.
46. The Court does not intend to traverse the remaining allegations in the replying
affidavit. The Applicant has not established any semblance of ownership of the
equipment nor made a case for vindicatory relief in his founding affidavit. Neither
is the relief sought in the notice of motion in sync with the cause of action pursued
in the founding affidavit. The Applicant’s Counsel was hard -pressed to correlate
the orders sought in the notice of motion with the cause of action pursued in the
founding affidavit.
47. As alluded to, the Second Respondent filed his counterapplication and answer to
the founding affidavit. The second respondent applied on 25 August 2023 to set
down this application and the counterapplication for a hearing. At that juncture,
the Applicant had not filed his replying affidavit in the main application nor his
answering affidavit in the counterapplication. The Applicant complied following
the order issued through a chamber book application. However, when the Second
Respondent filed his written argument on 11 October 2024, he sought to postpone
19
the hearing of the counterapplication but insisted that the main application be
heard. The Second Respondent alleged that the counterapplication was not ripe
for hearing . The explanation provided was that the transfer of ownership of the
moveable property , which forms the subject of the counterapplication, is
regulated by the laws of the British Virgin Islands. The Second Respondent could
not provide evidence of the legal position relevant to the transfer of the moveable
property according to the laws of the British Virgin Islands. There was no formal
application for the postponement of the counterapplication.
48. The Second Respondent sought to strike out certain material from the Applicant’s
replying affidavit. These are related to allegations of theft, perjury, fraud, and
irrelevant material in the replying affidavit. The Second Respondent indicated that
he had abandoned the point on non-joinder of Origins UK, which allegedly owned
one of the harvesters. No explanation was offered for why this point raised in
limine was ditched. The remainder of the Second Respondent’s written argument
concentrated on the main application, relying largely on the Applicant’s failure to
make out a case for ownership of the equipment and vindicatory relief and the
Applicant’s belated reliance on spoliation in the replying affidavit.
49. The Applicant submitted in his written heads of argument that the Second
Respondent set the opposed application down prematurely to the prejudice of the
Applicant. Despite being unable to proceed with the counterapplication, the
Second Respondent insisted that the main application was heard. The Second
Respondent had delivered its written argument, index, and practice note late. The
Applicant submitted that his application for security for costs had not been
finalised. Counsel’s written argument was directed more to the Second
Respondent’s intention to postpone the counterclaim and the prejudice it would
cause the Applicant rather than addressing the deficiencies in its founding
or replying affidavits. The Applicant did not seek to postpone the hearing of the
main application in his written or oral argument. Had the Applicant done so , the
Court would have been receptive to the request. The Court was of the view that
the Second Respondent had wrongfooted the Applicant with the premature set
20
down of the application, his failure to comply with the court rules, his subsequent
desire to postpone the hearing of the counterapplication, and the withdrawal of
the counterapplication on the eve of the hearing.
50. The Second Respondent tendered the Applicant’s wasted costs occasioned by
the withdrawal of the counterapplication. The parties did not seek the Court’s
involvement in the withdrawal of the application or in making it an order of
the court.
51. The Applicant submitted that claims and counterclaims should be heard
simultaneously. The pari passu rule in motion proceedings relates to the principle
that all parties should be treated equally and without preference. The Latin phrase
“pari passu” means “equal footing” . When it comes to counterapplications, this
rule ensures that counterapplications are heard and decided on the same basis
as the main application without giving undue advantage to any party. If a
Respondent files a counterapplication, it should comply with the same procedural
rules as the main application. The counterapplication should be dealt with pari
passu on equal footing with the main application.
52. A situation had arisen where the counterapplication was withdrawn before the
hearing. The Second Respondent insisted that the main application be heard . All
the Applicant wanted was for the matter to be referred to trial. It was alleged on
behalf of the Applicant in written argument, which was repeated in oral argument,
that it had become apparent that the matter was no longer suitable for motion
proceedings. Subrule 6(5)(g) of the Uniform Rules of Court (“URC” ) pertains to a
prayer of this nature. As a general rule , an application for the hearing of oral
evidence must be made in limine, not once it becomes clear that the Applicant is
failing to convince the Court on the papers. 14 The circumstances must be
exceptional before a Court will permit an Applicant to apply in the alternative for
the matter to be referred to evidence should the main argument fail.15 At the outset
14 Law Society Northern Provinces v Mogami 2010 (1) SA 186 SCA at 195C (para 23)
15 De Reszke v Maras [2005] 4 AllSA 440, 2006 (1) SA 401 (C) at paras 32-33,
21
of the hearings, the applicant's counsel applied for the matter to be referred to trial
and handed up a draft order.
53. A court will refer a matter to trial if the dispute of fact is incapable of resolution on
the papers and too wide -ranging for resolution by referr ing to oral evidence. 16
Suppose a dispute of fact is such that the provisions of Rule 6(5) (g) regarding the
hearing of oral evidence cannot properly be invoked . In that case , the court will
order the parties to trial so that it may have an opportunity to see and hear the
witnesses before coming to a conclusion.17 When a question of mixed law and fact
is involved, the matter will be ordered to trial.18
54. Referral to trial is an alternative to dismiss ing the application in such
circumstances. It is appropriate where the Applicant, when launching his
application, could not reasonably have foreseen that a serious dispute of fact,
incapable of resolution on the papers, was bound to develop. 19 The Applicant
would be hard-pressed to allege that he did not foresee a serious dispute arising
on the facts material to this application if regard is had to the soured relationship
between him and the Second Respondent and the vile he vented in his replying
affidavit. The Applicant’s Counsel submitted that the possibility of the matter
being referred to trial was first raised in the Applicant’s application for security for
costs against the Second Respondent, a peregrinus of this Court. The Applicant
submitted that as the papers currently stand, the ownership of movable property
is at issue.
55. Before a dispute in motion proceedings can be referred to a hearing of oral
evidence, it must be clear that there is a real or genuine dispute in the affidavits.20
16 Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155(T) at 1162
17 Frank v Ohlsson’s Cape Breweries (Pty) Ltd 1924 AD 289 at 294, Petersen v Cuthbert & Co Ltd 1945
AD 420 at 428, Joubert v Stemmet 1965 (3) SA 215 (O), Pautz v Horn 1976 (4) SA 572 (O), De Villiers
v Pyott 1947(1) SA 381 (C )at 387
18 Conradie v Kleingeld 1950 (2) SA 594 (O)
19 Standard Bank of SA Ltd v Neugarten 1987 (3) SA 695 (W) at 699A
20 Wightman t/a JW Constructionv Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at 375, Van Wyk v Botha
[2005] AllSA 320 (C ) at 328, Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949(3) SA
1155 (T) at 1162-1163
22
It is improper to bring applications to the Court on disputed issues of fact and then
to turn them into trial actions by invoking the provisions of the Rules in the hope of
inducing the Court to apply those rules to what is essentially the subject of an
ordinary trial. 21 By doing so, Applicants obtain a considerable advantage over
litigants who have proceeded by way of action and may have to wait many months
to get their cases before the Court. Such applications turning into trials interpose
themselves, occupy the time of judges and delay the hearing of legitimate trials.22
A Court will refuse to order oral evidence when it is clear that oral evidence would
enable an applicant to amplify affidavits with additional evidence where the
affidavits themselves, even if accepted, do not make out a clear case but leave the
case ambiguous, uncertain, or fail to make out a cause of action at all.23
56. The Second Respondent opposes the referral of this matter to trial. Counsel for
the Respondent submitted that the Applicant did not make out a case that he
owned the equipment and wanted a second bite of the cherry. If the Applicant’s
case is dead, it cannot be resurrected. Unless concerned with interim relief,
motion proceedings resolve legal issues based on common cause facts. Unless
the circumstances are special , they cannot be used to resolve factual issues
because they are not designed to determine probabilities.24
57. It was apparent from the heads of argument that the Applicant did not address the
relief sought in the main application and resisted the invitation to address it in oral
argument. The Applicant had focussed entirely on technical issues regarding why
the main application should not be heard but rather referred to trial. The Applicant
dealt with the Second Respondent’s failure to comply with the Court’s rules, the
premature set down of the application for hearing, the pari passu rule, and
material in the answering affidavit that should be struck out.
21 Room Hire supra at 1162, Bhorat v Lalla 1974 (2) SA 336(RA)
22 Garment Workers Union v De Vries 1949 (1) SA 1110 (W) at 1133
23 Carr v Uzent 1948 (4) SA 383 (W) at 390, Liss Shoe Co (Pty) Ltd v Moffet Building & Contracting (Pty)
Ltd 1952 (3) SA 484 (O)
24 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at 290D-E
23
58. It is trite that an applicant must make out its case in its founding affidavit. Due to
the nature of applications, the affidavit plays a dual role in the application, forming
both pleadings and the evidence upon which the applicant relies.25 An applicant's
pleadings contain the legal basis of the claim under which an applicant has
chosen to invoke the court's competence. In other words, the formal terminology
of the notice of motion an d the supporting affidavits must be interpreted to
establish the legal basis of the applicant's claim .26 The applicant must establish
sufficient facts in the founding affidavit to disclose a cause of action; the founding
affidavit must be self -contained. The replying affidavit cannot augment the
applicant's case.27 Permitting such will mean that the Respondent would not have
had the opportunity to address those issues sufficiently, which amounts to gross
prejudice to the Respondent who would have filed the answer. This will also
transgress the Respondent's constitutional rights.28
59. Applicant’s Counsel was not receptive to the suggestion that defined aspects
could be referred to oral evidence . The Applicant ’s Counsel insisted that the
matter be referred to trial. The Applicant’s papers are replete with allegations that
go way beyond the relief he initially sought. A referral to trial has the risk of
expanding those issues similarly. It would be a travesty if the Applicant used the
opportunity to traverse issues relating to the machinations of the joint venture, his
alleged fifty per cent profit share, his rights to exploit the Kalahari melon seed oil,
and whether he was entitled to a share of the international sales of the oil.
60. The Court is not inclined to grant this request, as the Applicant has failed to make
a case for either ownership of the equipment or vindicatory relief in his papers. It
would serve no purpose to prolong this matter. Applicant’s Counsel stated that the
matter had gotten out of hand and that a referral to trial would resolve the issues.
25 Transnet Ltd v Rubenstein [2005] 3 All SA 425 (SCA), Kham and Others v Electoral Commission and
Another 2016 (2) SA 338 (CC) par [46]
26 Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC)
27 Airports Company of South Africa (SOC) Ltd v Tswelokgotso Trading Enterprise CC[2022] ZAGPJHC
410 at para 9
28 Business Partners Ltd v World Focus 754 CC 2015 (5) SA 525 (KZD)
24
The Court cannot agree with this submission . The Applicant chose motion
proceedings to litigate his case and failed to prove the core issue identified in his
founding affidavit. Counsel indicated that the Applicant would appeal this
judgment if the matter were not referred to trial. This Court will not be deterred by
the latter submission in adjudicating this matter fairly and equitably.
61. Counsel’s repeated reliance on the Second Respondent’s failure to adhere to the
rules is of no consequence , given that the Applicant declined to postpone the
matter. The issue of security for costs fell away once the counterapplication was
withdrawn. A tender for costs accompanied t he withdrawal of the
counterapplication. Counsel alleged that the Second Respondent ’s answering
affidavit constitutes a disguised counterapplication. That may be so , but the
counterapplication, in whichever form it reappears, allows the Applicant to take
good counsel and mount a considered challenge to it. The answering affidavit is
what it is . The Court c ould not ignore it , and its content was informed by the
allegations made in the founding affidavit. Counsel’s submission that the
Applicant was kept in the dark about Trend, the alleged equipment owner, is hard
to fathom. Counsel argued finally that it would be in the interests of justice to refer
this matter to trial and a miscarriage of justice if it was not . The Court does not
agree. Neither party persisted with their applications to strike out matters from the
opponent’s papers.
62. This is an inordinately lengthy judgment , considering that the issues for
determination had crystallised early on from the allegations or lack thereof ,
evident in the founding papers. A judgment is primarily for the benefit of the
parties. They should be satisfied that the issues raised have been addressed as
fully as possible and the adjudication thereof, even if it goes against them, is not
due to any lack of effort on the part of the Court in discharging its duties. The Court
makes the orders that follow.