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jumping horse with the name Evening Storm , together with a range of horse
care and riding equipment (“the equipment”) .
3. Evening Storm and the equipment are in the possession of the first
respondent, a veterinarian who resid es in Walkerville together with her
partner, Marius Vorster (“Mr Vorster”) . I will refer to the first respondent as “the
respondent”.
4. The respondent and Mr Vorster are also recreational horse riders . They stable
and care for Evening Storm and a number of other horses.
5. The second respondent is a close corporation owned by the respondent,
through which she practises as a veterinarian. The second respondent was
cited only in the event that it, as opposed to the respondent, was in possession
of Evening Storm and the equipment. It is clear from the affidavits filed by the
respondent that they aren’t .
6. In the founding affidavit , the applicant claim ed that she had placed Evening
Storm and his equipment temporarily into the care of the respondent on
9 October 2022 . She said she did so because on 6 October 2022, she suffered
a serious riding injury to her ankle that meant she would undergo an operation
on 12 October 2022 , and thereafter be unable to ride for six months . She
explain ed that Evening Storm required regular riding in order to keep him in
good condition and to prevent him from going lame . Her injury prevented her
from riding Evening Storm and properly caring for him herself.
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7. The applicant explain ed that she had placed Evening Storm into the care of
the respondent in the following circumstances: She said she had learnt about
the respondent and Mr Vorster, the fact that the respondent was a vet who
looked after horses, and the fact that they had a particular interest in Evening
Storm in August 2022. Mr Vorster had called her on 12 August 2022 and had ,
together with the respondent, visited Evening Storm and the applicant at
Cellehof stables several days later. She was told that the respondent had also
had a riding accident, and that Evening Storm was the right horse to aid the
respondent in her own rehabilitation. She sa id that the respondent and
Mr Vorster had “joked” that they would be willing to “babysit ” Evening Storm if
he ever needed looking after.
8. The applicant launched the urgent application when she discovered, so she
allege d, that the horse’s condition had deteriorated and he was not being
properly cared for . She sa id that the respondent and Mr Vorster had
undertaken to return Evening Storm to her on 29 March 2023, but that the
respondent had refused to allow her to retrieve the horse on 1 April 2023.
9. The respondent filed an answering affidavit in the urgent application, which
she apparently prepared with limited or no legal assistance .
10. In that answering affidavit , apart from disputing that the horse’s condition had
deteriorated and the matter was urgent, the respondent claim ed that she was
the owner of Evening Storm. She sa id that the applicant had given Evening
Storm and the equipment to her after the applicant had fallen off the horse and
injured herself , and no longer wanted the horse . She attache d an affidavit by
4
a Ms Mariet Hammes in support of her version . Ms Hammes was present
when the respondent and Mr Vorster collected Evening Storm and the
equipment on 9 October 2022. She also quoted and attached a number of
WhatsApp messages exchanged with the applicant that apparently support ed
her version.
11. Because the application is centred on Evening Storm, and the fate of the
equipment appears bound to the fate of Evening Storm, I will hereafter , except
where necessary, not refer to the equipment.
12. The urgent application did not proceed on the day of the set down. It was
removed from the roll. Counsel appearing for the applicant said the matter was
not ripe to be heard because a replying affidavit had not been filed , but that ,
in any event, there was a dispute of fact on the papers .
13. An exchange of letters followed after the removal of the urgent application
from the roll in July and August 2023 . The applicant proposed that the parties
agree to refer the matter to oral evidence . The respondent refused.
14. Between August 2023 and January 2024, the respondent discovered a range
of documents in response to a Rule 35(12) notice, the applicant replaced
counsel who had represented her in the urgent application, and the
respondent replaced her attorneys.
15. On 15 January 2024, the applicant filed a comprehensive replying affidavit of
some 200 paragraphs in which she dealt in detail with the correspondence
5
between the parties and addressed the respondent’s claim that Evening Storm
had been donated to her . The applicant also set out in detail the circumstances
in which the respondent and Mr Vorster had communicated their decision to
return Evening Storm to the applicant on 29 March 2023. She claimed that
irrespective any dispute about whether ownership of E vening Storm and the
equipment had passed to the respondent on 9 October 2022, the respondent
and Mr Vorster had unconditionally undertaken to return them to her on
29 March 2023. She also placed the WhatsApp messages relied on by the
respondent in the answering affidavit in their proper context. She showed how
the respondent had omitted messages or parts of messages, and claimed that
this was misleading.
16. The replying affidavit was well -prepared and convincing. Had no further
affidavits been filed, the court may have been inclined to decide the matter in
favour of the applicant on the papers, adopting the robust approach set out in
Soffianti v Mould 1956 (4) SA 150 (E).
17. But the affidavits did not end there.
18. On 19 February 2024 , the respondent filed a comprehensive supplementary
affidavit.
19. In the supplementary affidavit, the respondent, in her turn, comprehensively
addresse d the record of correspondence between the parties, and addressed
the facts relied upon by the applicant that militate d against the acceptance of
the respondent ’s version . The respondent attached the confirmatory affidavits
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of four persons in support of her version . The respondent pertinently set out
her and Mr Vorster’s version of how the applicant had given Evening Storm to
her. She discussed a series of WhatsApp messages that were exchanged with
the applicant in which, so the respondent alleged, the applicant had
unequivocally represented that she had given Evening Storm to her. And she
disputed that she had undertaken to return Evening Storm to the applicant.
20. The net effect of the supplementary affidavit was that it ma de the dispute
between the parties about the ownership of Evening Storm and the equipment
irresoluble on the papers.
21. On 9 April 2024 , the applicant filed an affidavit in response to the
supplementary affidavit. The affidavit was helpful in clarifying what transpired
at the hearing of the urgent application. It did not , in my view, reverse the net
effect of the supplementary affidavit of the respondent : the dispute remained
irresoluble on the papers.
22. Despite that t here was no formal application for the filing of either the fourth or
the fifth affidavits , I have decided to admit them. I formally admitted the
supplementary affidavit at the hearing of the application on 29 January 2025.
The supplementary answering affidavit is also admitted.
23. I decided to do so because I am of the view that it is of crucial importan ce in
this case , that each party is allowed to place their full version before the court
and deal fully with the version of the opposing party (Transvaal Racing Club v
Jockey Club of South Africa 1958 (3) SA 599 (W), 604C -D). My admission of
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the supplementary affidavit was also aimed at eliminating any prejudice, real
or perceived, that may have arise n from the respondent not being able to deal
with the content of the replying affidavit. The admission of the applicant ’s fifth
affidavit was necessary to ensure the applicant likewise had a fair opportunity
to respond to the new material in the respondent ’s supplementary affidavit .
24. At the hearing before me on the opposed motion roll , the applicant persist ed
in seeking final relief, principally on the basis that the respondent had decided
to return Evening Storm to her , and had said she and Mr Vorster would do so
on 1 A pril 2023 . The applicant applied in the alternative that the matter to be
referred to oral evidence. Both the application for final relief and the referral to
oral argument were opposed by the respondent.
25. I have already indicated that I am of the view that the re are material dispute s
between the parties that cannot be resolved on the papers . Accordingly ,
Rule 6(5)(g) applies. It provides:
“Where an application cannot properly be decided on affidavit the court
may dismiss the application or make such order as it deems fit with a
view to ensuring a just and expeditious decision. In particular, but without
affecting the generality of the aforegoing, it may direct that oral evidence
be heard on specified issues with a view to resolving any dispute of fact
and to that end may order any deponent to appear persona lly or grant
leave for such deponent or any other person to be subpoenaed to appear
and be examined and cross -examined as a witness or it may refer the
matter to trial with appropriate directions as to pleadings or definition of
issues, or otherwise .”
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26. The respondent urged me to dismiss the application because the applica nt
had abused the process of the cour t by proceeding on application . The
respondent subm itted further that the applicant ’s application for the matter to
be referred to oral evidence should be refused because it had been brought
in the alternative , and in unexceptional circumstances. The respondent
submitted also that the matter should not be referred to oral evidence
because , on the evidence before the court, the probabilities weighed heavily
against the applicant : referral to oral evidence would not change the outcome .
27. I propose to begin by considering the latter.
28. In my view, the probabilities do not weigh heavily in favour of the respondent
on the question whether ownership passed to her on 9 October 2022. They
are, at best for the res pondent, evenly balanced.
29. It is inherently improbable that the applicant would donate a horse and
equipment to the value of some R180,000.00 to a person she hardly knew,
and continue to pay the medical insurance. The respondent is also not
assisted by the absence of a detailed statement from Mr Vorster about the
content of his discussions with the applicant regarding the basis on which
Evening Storm was handed over on 9 Octo ber 2022 . In some cases , it is not
enough for a crucial witness to merely confirm what another person reports.
This is such a case.
30. On the other hand, the respondent’s version is not untenable or farfetched . It
is supported by the sworn statement of Ms Hamme s, who says she hea rd the
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applicant say to Evening Storm that he was going to a new “forever home ”,
and the confirmatory affidavit of Mr Vorster . The What sApp messages , on the
respondent ’s interpretation , are also consistent with her version.
31. In my view, t he probabilities on the defence of estoppel are evenly balanced.
The continuum of communicatio ns between October 2022 and March 2023 ,
relied on by the respondent , contains a number of statements which,
depending on the context, may well constitute representations that Evening
Storm was donated to the respondent. They may, however, also be no more
than the sentimental language of an ardent horse lover who has placed her
horse into the care of another in a new stable for a period . Spoken in the
context of an agreement that the temporary care of a much -loved horse being
entrusted to the respondent and Mr Vorster – which is the applicant’s version
– the same statements would not tend to mislead the respondent into believing
that the horse had been donated to her . The strength or weak ness of the
estoppel defence is , prima facie , tied to the first issue .
32. In my view, t he prospects of this third issue are also finely balanced. The
respondent’s message on 29 March 2023 is certainly and unequivocal
statement that she and Mr Vorster had decided to return Evening Storm to the
applicant. But the key question is whether and when ownership transferred
(assuming it is held that the respondent was the owner of Evening Storm prior
to making that statement) . The answer to this question will turn on the meaning
of the Wha tsApp message in which the above statement was made, and the
WhatsApp messages and voice notes that followed , and what they reveal
10
about the respondent and M r Vorster ’s conduct and intentions . Oral evidence
will certainly assist the court in this regard .
33. In conclusion, the probabilities on the affidavits are not a reason to refuse a
referral to oral evidence. On the contrary, the even ly balanced probabilities
are in favour o f a referral (see Kalil v Decotex 1988 (1) SA 943 (A) at 981D -
982A ).
34. I turn to deal with whether a referral to oral evidence shou ld nonetheless be
refused for the reasons submitted by the respondent.
35. I find I am disinclined to dismiss the application because of the existence of
material disputes of fact . I do not agree that the original launching of the matter
by way of application, or the applicant’s decision to persist with the application
after the urgent hearing , constitutes an abuse of process.
36. While it is true that counsel who represented the applicant at the urgent
hearing expressed a view that the answering affidavit had raised a dispute of
fact, and it is also true that the applicant proposed a referral to oral evidence,
the applicant’s replying affidavit in itself demonstrates the reasonableness of
the decision to continue with the application . As I have indicated , had the
papers remained as they were then, the applicant may have succeeded.
37. The applicant’s decision to persist with the application after receiving the
respondent’s supplementary affidavit was also not unreasonable. The fourth
and fifth affidavits had not yet been admitted. The view taken by the applicant’s
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legal representatives that they may possibly succeed in obtaining final relief
on the basis of the statement by the respondent that she and Mr Vorster had
decided to give Evening Storm back to the applicant , was not unreasonable.
And the applicant’s attempt to bring the matter to finality without further delay ,
was understandable in the circumstanc es I refer to below .
38. That brings me to the submission that I should dismiss the application and
refuse a refe rral to oral evidence because the circumstances of the present
matter are not exceptional. The respondent based this submission on the
following dictum in Law Society of the Northern Provinces v Mogami 2010 (1)
SA 186 (SCA) at paragraph 23:
“An application for the hearing of oral evidence must, as a rule, be
made in limine and not once it becomes clear that the applicant is failing
to convince the court on the papers or on appeal. The circumstances
must be exceptional before a court will permit an applicant to apply in the
alternative for t he matter to be referred to evidence should the main
argument fail (De Reszke v Maras and Others 2006 (1) SA 401
(C) ([2005] 4 All SA 440) at paras 32 - 33).”
39. The decision of Mogami was one in which the appellant had sought a referral
to oral evidence on appeal , in a matter about professional misconduct . The
decision of De Reszke , referred to in Mogami , was an application in which
reference was sought to oral evidence , in a matter about a disputed will , in
circumstances where this was clearly not justified.
40. Those cases were wholly unlike the present case .
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41. The present case is about a show -jumping horse to whom the applicant, the
respondent , and Mr Vorster , have a deep emotional attachment . The strength
and depth of this attachment is evident from the lengths to which the parties
have gone in the litigation so far. It is also evident on the affidavits . The
following examples provide illustration: The applicant states that when she had
to part with Evening Storm on 9 October 2022, albeit temporarily, she was
unable to stop herself crying for half an hour. The applicant conveyed to Mr
Vorster in a WhatsApp message that she was afraid to visit Evening Storm
whilst he was in their possession because she would find it too difficult to leave
him again. The respondent states in her answering affidavit , inter alia that “he
is our horse ” … “ we will never sell him ” … “ our family will do anything for him ”
… “we will go beyond and above to do anything for him ”. Mr Vorster’s
WhatsA pp message to the applicant on 29 March 2023 reads: “Lindsi I don’t
know what to say to you but honestly my heart is in pieces, I can’t come to
terms that I have to part ways with Storm I honestly don’t know how to process
it.” It is fair to say that (at least from the perspect ive of the applicant, the
respondent and Mr Vorster ) their connection with Evening Storm is
comparable to the bond between a parent and a child .
42. In my view, t his renders the matter exceptional . It is inconc eivable that a court
would decide a dispute over the custody of a child by default. For similar
reasons, and given how much Evening Storm means to the respective parties,
I am of the view that it would be wholly inappropriate for the court to decide
the matter on the basis of the failure by one party to follow the correct
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procedure from the outset , or on the respondent ’s version in accordance with
the rule in Plascon -Evans .
43. In addition, Evening Storm is a show -jumping horse which means the matter
is time -sensitive . He will not live forever. The matter cannot be left to meander
its way through the court system while his prime riding years diminish . It would
be inappropriate to dismiss the application and compel the applicant to start
the proceedings afresh. If the court in due course were to find that the
applicant is the owner or Evening Storm must be returned to her, she will have
lost another two years , or more , of these . Perhaps more distressingly for the
applicant , she will have been separated from Evening Storm for another two
years . The respondent and Mr Vorster, on the other hand, will not suffer this
disadvantage because Evening Storm is in their possession . But they would
have to bear the uncertainty hanging over them of possibly losing Evening
Storm to the applicant. It is also only fair to them that they have certainty , one
way or another, as soon as possible.
44. In the circumstances , I have decided to refer the matter to oral evidence . I
have also exercised my discretion in terms of Rule 6(5)(g) to set limited time
periods for the preparation for oral evidence and have directed that the parties
should approach the Deputy Judge President immediately for the allocation of
a preferential date . I have done so with a view to the matter being finalised as
soon as possible this year.
45. The following order is made:
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45.1 The following issues are referred to oral evidence :
45.1.1 Whether ownership of the horse Evening Storm and/or the
equipment referred to in paragraph 2.2 of the Notice of Motion
(“the Equipment”) transferred from the applicant to the first
respondent during the period 6 October 2022 to 9 October
2022 .
45.1.2 Whether the applicant should be estopped from asserting
ownership of the Evening Storm and/or the Equipment by
virtue of the representations made by her in and during the
period October 2022 to March 2023 .
45.1.3 Whether ownership of Evening Storm and/or the Equipment
transferred from the first respondent to the applicant , or the
applicant is entitled to the return of Evening Storm and/or the
Equipment , by virtue of what occurred on 29 March 2023 and
subsequent thereto.
45.2 The parties are directed to deliver pleadings on the above issues as
follows:
45.2.1 The applicant must delive r its pleading on the referred issues
within 10 days of the date of this order ;
45.2.2 The respondent s must deliver i ts pleading in answer within
10 days of the delivery of the applicant’s pleading ;