IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
( 1) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
i.'.?/1?0h?~
DATE SIGNATURE
Case Number: 16236/2021
KONA TE LOGISTICS (PTY) LTD Applicant
and
MINISTER OF POLICE Respondent
This judgment was prepared and authored by the Judge whose name is reflected
herein and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines .
JUDGMENT
ELLIS AJ
2
[1] In this application , Applicant seeks an order in the following terms:
1.1 delivery of the property (listed in annexure "A" to the notice of motion), from
Respondent ;
1.2 alternatively , payment of an amount of R14 002 070.00 (fourteen million two
thousand and seventy rand).
{2] Respondent opposes the application on various grounds, which will be referred to
hereunder.
[3] Applicant conducts a warehousing business modelled on the following: it receives
money from companies outside the Republic of South Africa, purchasing liquor on
the instruction and specification of these companies , and thereafter warehousing
the liquor pending collection by the purchasing company. In this regard, Applicant
would levy fees for sourcing and ordering the liquor as well as warehousing same
until such time as collection takes place. Applicant conducts its business (including
warehousing) from a leased premises, situated at Washington Business Park,
Washington Drive, Halfway House, Midrand.
[4] During 2019, Applicant apparently sourced, purchased and warehoused an
inventory of liquor (allegedly listed in annexure "A" to the notice of motion) on behalf
of CHUPA WATANSHI SARL, a juristic entity incorporated in the Democratic
Republic of the Congo. Applicant also attaches 3 invoices to the founding affidavit,
issued on 2 February 2019, 28 February 2019 and 5 March 2019 respectively ,
alleging that they evidence the purchasing of the items by CHUPA WATANSHI
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SARL.
[5] On 13 March 2019, members of the South African Police Services ("SAPS") raided
Applicant's warehouse and apparently seized all the items held on behalf of CHU PA
WATANSHI SARL, whereupon SAPS moved the items to a warehouse in
Germiston . SAPS compiled an inventory of the items seized, which allegedly
corresponds with annexure "A" to the notice of motion and the 3 invoices attached
to the founding affidavit.
[6] However, there is no annexure "A" attached to the notice of motion and counsel for
Applicant also did not provide a copy thereof during the hearing of the matter,
despite being requested to do so. This issue proves problematic for Applicant in that
it is impossible to compare the so-called property (annexure "A" to the notice of
motion), with either the 3 invoices, the inventory or the list of bonded goods
mentioned in the cession agreement , which I will refer to in more detail hereunder.
Moreover , the inventory does not in the slightest indicate that it is the property of
CHUPA WATANSHI SARL, as averred by Applicant and is for the most part illegible.
[7] On 23 April 2019, Applicant brought a spoliation application in this court under case
number: 27973/2019 and succeeded on 4 February 2020 by obtaining an order
declaring the seizure of the confiscated goods by SAPS to be unlawful and invalid,
coupled with an order redirecting Respondent to restore possession of the
confiscated goods to Applicant within 5 days from service of the order.
(8] Before referring to the aforesaid spoliation application in its founding affidavit, the
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deponent to Applicant's founding affidavit states that on 24 August 2020, CHUPA
WATANSHI SARL mandated Applicant to commence with proceedings in the High
Court to recover the confiscated items from the SAPS.1
[9] However, it is quite apparent that the mandate could not have been given to the
Applicant in support of the spoliation application, due to the fact that it is dated after
the order under case number: 27973/2019 was already issued on 4 February 2020,
and the mandate in fact referred to the said court order in the first paragraph thereof.
Applicant also does not rely on the mandate in order to have launched the present
application and its reference is therefore non sequitur.
[10) Moreover , it is trite that Applicant did not need a mandate form CHUPA WATANSHI
SARL (the owner of the property) in order to succeed with a spoliation application.
All Applicant needed to allege and prove was that it was in peaceful and undisturbed
possession of the property, which it succeeded in doing, hence the court order
granted under case number: 27973/2019 in Applicant 's favour.
[11) Applicant alleges that Respondent failed, refused and/or neglected to comply with
the terms of the order made under case number: 27973/2019 .
[12} On 26 November 2020, CHUPA WATANSH I SARL, the owner of the confiscated
goods, executed a deed of cession in terms of which it ceded to Applicant all the
rights, title and interest in the confiscated goods, as result of which, Applicant
asserts that it stepped into the shoes of CHUPA WATANSHI SARL and is entitled
to reclaim possession (delivery) of the confiscated goods from Respondent with the
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rei vindicatio , or in the event that Respondent have disposed of the confiscated
goods, before or after the institution of these proceedings, to claim damages from
Respondent in terms of the actio ad exhibendum.
[13] Respondent 's opposition to the application is essentially premised on the following:
13.1 That Applicant failed to satisfy the requirements established in our law to
succeed with a claim based on rei vindicatio;
13.2 That the property, which is the subject matter of this application, was already
detained by the South African Revenue Services ("SARS") on 23 April 2019
and Applicant is fully aware of this and was aware thereof during the
proceedings under case number: 27973/2019. i.e. the spoliation application;
13.3 That Applicant seeks delivery of the property, which is in essence the same
relief already granted by the court under case number: 27973/2019 , which is
an abuse of court process and should be struck out or refused;
13.4 Regarding Applicant's claim in terms of the actio ad exhibendum, that
Applicant is not the owner of the property and the deed of cession cannot be
construed to afford Applicant the right of ownership of the property; and
13.5 That the property has not been alienated or disposed of by Respondent (in
any event not ma/a fide), but is in possession of SARS and the subject matter
of discussions between SARS and the owner thereof being CHUPA
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WATANSHI SARF.
[14) It is trite that an owner is entitled to reclaim possession of its property with the rei
vindicatio , which is an action in rem. In order to succeed with a claim of rei
vindication, Applicant must allege and proof the following:
14.1 ownership of the property;2 and
14.2 that Respondent was in possession of the property when the claim was
instituted. 3
[15] The actio ad exhibendum is a delictual action which is normally instituted as an
alternative to the rei vindicatio. It enables an owner to claim damages from an
erstwhile possessor of the owner's property.4 Applicant will only succeed with an
actio ad exhibendum by alleging and proving the following:
15.1 that Applicant is or was the owner of the property concerned when it was
alienated by Respondent ;5
15.2 Respondent had been in possession (in the sense of civil possession) of the
property;6
15.3 Respondent alienated or destroyed the property;7
15.4 Respondent's loss of possession was ma/a fide. This will be the case if, at
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the time of the loss of possession or destruction, Respondent knew of
Applicant's ownership or claim to ownership .8
[16] It is clear from the aforesaid , that the primary requirement for a claim premised on
the rei vindicatio or the actio ad exhibendum , is for Applicant to allege and prove
ownership of the property.
[17] During the hearing of the matter, counsel for Applicant was specifically requested
to address me on its ownership of the property. In response thereto, I was
repeatedly informed that paragraph 5 of the founding affidavit constitutes the
necessary averments in order to prove Applicant's ownership in the property.
[18] To this end, it is prudent to refer to paragraph 5 of the founding affidavit (with the
heading "LOCUS STANDf'), which reads as follows:
'5.1 CHUPA WATANSHI S.A.R.L, a juristic person, duly incorporated in
the Democratic Republic of the Congo, with principal place of
business and registered address at 1753 Avenue RUWE,
C/LUBUMBASHI / 146 Nyanza, C/Kinsha (RCCM: 14-8-1230) &
registration number: Id Nat: 6-9-N82777K was the owner of the
property listed in annexure "A" to the notice of motion (hereinafter
simply referred to as 'the property').
5.2 On 26 November 2020 CHUPA WATANSHI SARL executed the
following deed of cession in respect of the property:
We, the undersigned, CHUPA WATANSHI SARL, a juristic person,
duly incorporated in the Democratic Republic of the Congo, with
principal place of business and registered address at 1753 Avenue
RUWE, CILUBUMBASHI I 146 Nyanza, C/Kinsha(RCCM: 14-8-1230)
& registration number: Id Nat: 6-9-N82777K cede, assign and transfer
unto and in favour of KONATE LOGISTICS (PTY) LTD, a private
company duly incorporated in the Republic of South Africa with
principal place of business at Washington Business Park, Washington
Drive, Halfway House, Midrand, 1685& registration number:
8
2013/232962/07, all our right, title and interest in and to all the goods,
listed in annexure "B" (hereinafter referred to as 'the bonded goods'},
which we may now or in the future have, acquire and hold against all
or any persons, governments , companies , corporations , firms,
partnerships , associations , syndicates and other legal personae .
We hereby irrevocably grant to the cessionary, with power of
substitution , full power and authority to recover in our name from all
persons, governments , companies , corporations , firms, partnerships ,
associations , syndicates and other legal personae , all the bonded
goods, and claims in the bonded goods, which we may be entitled to
recover and I or repossess and, if so determined by the cessionary,
to institute action in our name against all or any persons,
governments , companies , operations , firms, partnerships ,
associations , syndicates and other legal personae for the purpose of
the said recoveries and to retain the proceeds recovered in the
exercise of such powers.
We hereby warrant and undertake in favour of the cessionary and
agreed that:
• We have not ceded to anyone else all or any of the bonded goods,
and if, despite anything hereinbefore contained , there shall have
been any prior cession in whole or import of the claims hereby
ceded to the cessionary , then this cession shall be deemed to be
a cession of any reversionary right, title and interest in and to any
of the claims which we may have, or which we may acquire, after
the termination of any prior cession.
• We agree that this cession and pledge shall be of force and effect
indefinitely and the cessionary shall at any time hereafter be
entitled to give notice of this cession to all or any third party.
A copy of the deed of cession is attached and marked annexure
"FA03".
5.3 As a result of the cession, the applicant now holds all the rights, title
and interest in the property.
5.4 The respondent is in possession of the property.
5.5 In the alternative , and if it be found that the respondent is no longer in
possession of the property, the respondent disposed of the property
with the knowledge that CHUPWA WATANSHI SARL's ownership ,
the value of which is R14'002'070'00 (fourteen million two thousand &
seventy rand).
5.6 Based on the aforesaid the applicant has locus standi to claim:
5.6.1 delivery of the property;
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5.6.2 payment of the amount of R14'002'070'00 (fourteen million two
thousand & seventy rand) being the value of the property."
[19) It is well known that the transfer of ownership of movable property requires delivery,
i.e. transfer of possession of the property by the owner to the transferee coupled
with a real agreement between them.9
[20) On the other hand, the purpose of a cession agreement is to divest the cedent of
the cedent's personal (and not real) rights against the debtor and to subject the
debtor to another creditor.10
[21] I interpose to note that the cession agreement that served before me also did not
have annexure "B" attached thereto, which is supposed to list the "bonded goods"
or subject matter of the cession agreement. Notwithstanding my reasonable request
to be provided with annexure "B" to the cession agreement, Applicant failed to do
so during the hearing hereof. This flies in the face of the statement made by
Applicant in paragraph 2.5 of the founding affidavit, wherein the deponent indicates
that copies of documents are attached to the founding affidavit, as opposed to
originals, to avert the risk of these documents being lost or destroyed and that the
originals will be made available at the hearing of the matter. This clearly did not
transpire in this instance.
[22) Be that as it may, I am of the firm view that Applicant has failed to prove ownership
of the property in this instance and I say so for the following reasons:
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22.1 First, the contents of the cession agreement itself, do not in the slightest
denote a transfer (delivery) of possession of the property from CHUPA
WATANSHI SARF to Applicant, with the intent of transferring ownership of
the property in the real sense;
22.2 Second, the cession agreement states that it cedes, assigns and transfers
all of CHUPA WATANSHI SARF's right, title and interest to the bonded
goods to Applicant , which bonded goods are neither known, nor defined or
described due to the absence of annexure "B" to the cession agreement.
This is further exacerbated by the fact that annexure "A" to the notice of
motion was not attached thereto. The cession agreement is therefore void
for vagueness and cannot be accepted as a valid agreement in the
circumstances of this matter;
22.3 Third, the cession agreement is in any event not a real agreement for
purposes of transferring ownership of movable property in that it specifically
provides that CHUPA WATANSH I SARF retains ownership thereof by only
allowing Applicant to, by the power of substitution " ... recover in our name .. "
or " ... to institute action in our name ... ", which implies that CHU PA
WATANSHI SARF remains the owner insofar as it concerns a vindication
claim or a claim in terms of the actio ad exhibendum ;
22.4 Fourth, even in the event that the cession agreemen t is to be regarded as a
valid agreement, which I deemed it is not, it is on Applicant's version a
simulated attempt by CHUPA WATANS HI SARF, the owner of the property,
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to transfer ownership (a real right) to Applicant, whilst it appears ex facie the
cession agreement that it is only CHUPA WATANSHI SARF's right to claim
(a personal right) that is ceded to Applicant.
[23] In result of the aforesaid, I find that Applicant has failed to prove that it is the owner
of any property that belongs to CHUPA WATANSHI SARF, which is the first
requirement of Applicant's claims for delivery and/or damages against Respondent.
[24] In other words, Applicant has no locus standi to have instituted this application in its
own name, alleging that it is the rightful owner of any property belonging to CHUPA
WATANSHI SARF.
[25] In any event, Applicant would not have been clothed with the necessary locus standi
to have brought this application in the name of CHUPA WATANSHI SARF, due to
the fact that the cession agreement in this instance is void for vagueness and
invalid, as I indicated above.
[26] In view of Applicant's lack of locus standi in this matter, I do not deem it necessary
to deal with the merits of any of the further requirements of the claims made by
Applicant or Respondent 's contentions in opposition thereto.
[27] Wherefore I make the following order:
1. Applicant's application is dismissed;
2. Applicant is ordered to pay the costs of Respondent on scale C in terms of Rule
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69(7), inclusive of the costs consequent upon the employment of two counsel.
APPEARANCES:
For Applicant: Adv ME Manala
Instructed by: Kabinde Attorneys Inc.
For Respondent: Adv J Motepe SC
Adv OD Mosoma
Instructed by: State Attorney, Pretoria
Date of hearing:
Date Delivered:
1 Annexure FA09 to the founding affidavit. ELLIS AJ
ACTING JUDGE OF THE GAUTENG
DIVISION OF THE HIGH COURT OF
SOUTH AFRICA
13 March 2024
23 June 2025
2 Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 ( 1) SA 77 (A) at 82A-B. Concor Construction (Cape)
{Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A) at 933A-934A.
3 Graham v Ridley 1931 TPD 476 at 479. Chetty v Naidoo 1974 (3) SA 13 (A) at 18G-19A.
4 Frankel Pollak Vinderine Inc v Stanton 2000 (1) SA 425 (W) at 429G-430B.
5 RMS Transport v Psicon Holdings {Pry) Ltd 1996 (2) SA 176 (T) at 181B-1.
6 Fronkel Pollak Vinderine Inc v Stanton supra at 429G-430B.
7 Unimark Distributors {Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T) at 10111-10128.
8 Unimork Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd supra at 10111-1012B
9 Info Plus v Sheelke 1998 (3) SA 184 (SCA) at 189D-E.
10 Johnson v Inc General Insurances Ltd 1983 (1) SA 318 (A) at 331G-H.