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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-039537
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
In the matter between:
GREG SHERING Applicant
and
RENIAS MUSTHIPISI Respondent
In re:
RENIAS MUSTHIPISI Applicant
and
GREG SHERING Respondent
APPLICATION FOR LEAVE JUDGEMENT
CARRIM, AJ
[1] This is an application for leave to appeal in terms of section 16(1)(a)(i) of the
Superior Courts Act, 10 of 2013. The Applicant is seeking leave to appeal, to
the Full Court of this Division, alternatively, the Supreme Court of Appeal, my
judgment and order handed down on 29 July 2025
2
[2] On 29 July 2025 I granted an order in the following terms:
a. The application for the return of the vehicle is dismissed,
b. The Respondent must, within 10 days of date hereof, provide the
Applicant with the name, address, and contact details of the person
or entity that removed the vehicle with registration number: J […] from the
Respondent's property as referred to in the letter dated, 8 April 2024,
(Annexure AA1 to the Answering Affidavit at 004-11).
c. Each party to pay their own costs.
Brief Background
[3] On 10 April 2024, the Respondent , Applicant in the main matter , brought an
application (main application) seeking relief in the following terms:
a. That an order for rei vindicatio be issued against the Respondent to
forthwith return the vehicle to the Applicant by delivering the motor vehicle
at the Applicant 's residential address being, 4[ …] S[…] Street, T […],
Gauteng Province, alternatively, that the Respondent provides the
Applicant with an address where the motor vehicle can be collected by the
Applicant on a date to be determined at the hearing of this application.
b. That the Sheriff of the court, with the assistance of the SAPS where
necessary, is empowered to do all that is necessary to assist the
Applicant with collecting the motor vehicle from the Respondent and
placing the Applicant in possession of the motor vehicle, hereby executing
with a court order.
c. Further and/or alternative relief.
[4] While the Applicant had initially opposed the application and engaged in
technical point taking, at the hearing of the matter the Applicant conceded that
the vehicle belonged to the Respondent , that the vehicle was on his premises
but that it had been removed at his behest.
3
[5] In my judgement I do not deal explicitly with the views of the Applicant
regarding this vehicle but consider it important to restate them here. In his
answering affidavit in the main application the Applicant states –
a. At para 8.2. “I deny that the vehicle in question is worth R450 000.00. The
vehicles that were on the property looked like scrap metal . The
windshields were smashed in, the body work of the vehicles were battered
and if I recall correctly, none of the vehicles had any number plates on
them. All the tyres were also flat. I doubt that the vehicles hold any value
or that they are road worthy.”
b. Then at para 8.3 “ As is apparent from annexure FA1 the vehicle in
question was registered in 1992, which means that the vehicle is 32
years and judging by the state that the vehicle was in I deny that the
vehicle is worth R450 000.00”
c. At para 8.10, “Mr Mazambani failed and/or refused to move the vehicles
and because of the [state] of the vehicles I believed that Mr Mazambani
abandoned the vehicles.”
[6] Thus the version before the Court, put up by the Applicant is this: the vehicle
was on my premises, I concede that the Respondent is the owner, the vehicle
was in my view a piece of scrap, I was under the impression, rightly or wrongly,
that it had been abandoned so I had it removed.
[7] It stands to reason then that the details of who, when and how the vehicle was
removed lies solely within the Applicant’s knowledge
[8] Given the Applicant’s version one would expect - if he had disposed of the
vehicle in good faith as he asserts - that he would simply have asked the
Respondent to make good the costs of the removal and hand over the details of
who removed th e scrap and cadit quaestio. Yet surprisingly the Applicant has
gone to great cost in strenuously opposing the relief sought by the Respondent.
[9] Another inconsistency that arises from the Applicant’s version is that in the
[9] Another inconsistency that arises from the Applicant’s version is that in the
letter of demand at 004- 11 the Applicant demands an amount of R59 600.00
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(from Mazambani) made up of arrear rentals, cleaning up costs, reinstatement
of the property and R9 000.00 (nine thousand rand) for the rubble to be
removed. He then belatedly makes the following demand in his Answering
Affidavit–
a. At para 21 “ I do not know where the vehicle is or why the applicant was
storing the vehicle on my property. Furthermore, the applicant never had
my permission to store any of his vehicles on my property and is therefore
indebted to me for storage costs in the sum of R360 000.00 (three
hundred and sixty thousand rand) calculated at R200.00 per day per
vehicle for 30 months.”
[10] On his own version he could not have had an agreement for storage with the
Respondent because until then he denied any knowledge of who the
Respondent was or that he was the owner of the vehicle or that the vehicle was
on his premises at all. Nor does he explain how he arrives at the amount of
R360 000 for storage when on his earlier version all that was owed to him by
Mazambani was R59 600.00.
[11] Given this it is not surprising that t he Respondent formed the view that the
Applicant was holding his vehicle as ransom for Mazambani’s debts . The
Respondent’s view was conveyed not only in the Replying Affidavit but also
during argument -
a. At paras 26 - 28 of the Replying Affidavit he states “The first time the
Respondent mentioned that he is no longer on possession of the motor
vehicle was in his answering affidavit. …The vehicle was further in the
property because of Mazambani and was part of Mazambani's lease. …
This paragraph is the Respondent's attempt to set off returning my vehicle
or payment of the value of my vehicle.”
[12] In my judgment I assumed in favour of the Applicant, namely that the vehicle
was no longer on the premises and that he did not know which scrap yard it
had been taken to. On that basis I found that the whereabouts of the vehicle
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became uncertain. However given the version as put up by the Applicant
himself I was inclined to grant alternative relief to the Respondent.
Applicable Legal Principles
[13] The requirements for leave to appeal are set out in section 17(1) of the
Superior Courts Act. Sections 17(1)(a)(i) and (ii) provide that leave to appeal
may only be given where the judge or judges concerned are of the opinion that
the appeal would have a reasonable prospect of success in the Appeal Court;
or that there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration.
[14] In NEHAWU v University of Cape Town & Others
1 the Constitutional Court
held that the decision to grant or refuse leave to appeal is a matter for the
discretion of the Court. It held that in deciding that question, the interests of
justice are crucial. W hether it is in the interests of justice to grant leave to
appeal is the function of a number of factors. One of such factors is the
prospects of success. In that regard, the Court held that the Applicant must
show that there are reasonable prospects that the Appeal Court will reverse or
materially alter the decision of the Court a quo if permission to bring the appeal
is given.
Grounds of appeal
[15] Several grounds of appeal are raised in which it is argued that I erred in law ,
summarised below-
a. The central attack is the grant of the order set out in paragraph 37(b) of
my judgment as quoted above. According to the Applicant I erred in law
by granting such an order for lack of jurisdiction because no prayer for
such an order was sought by the Respondent in the Notice of Motion.
b. I erred in law by finding that the Applicant refused to provide information
regarding the whereabouts of the vehicle when prompted to do so by me.
He contends that he offered to provide an affidavit to explain why he
1 2003 (3) SA 1 (CC)
6
doesn’t have the information that was mero motu requested by the Court
which would amount to an impossibility of performance.2
c. I permitted the introduction of a new matter in a replying affidavit when
same was not raised in the founding papers, thereby offending the well -
established principle of audi alteram paterm. 3
d. I found the Applicant acted poorly when by applying the Plascon Evans
Rule and having regard to paragraphs 8.5 - 8.13, 9 and 13 of the
answering affidavit, I should have found that the Applicant reasonably
regarded the vehicle as having been abandoned.4
e. By making a credibility and probability finding against the Applicant in
instances where the Court was dealing with affidavits.5
f. I erred in law by not awarding the Applicant costs of suit despite the fact
that the Applicant was the successful party.
[16] The lack of jurisdiction argument is based on the fact that the Notice of Motion
did not specifically ask for the relief granted in my paragraph 37(b) namely the
details of the who, what and where of the removal. In the Notice of Motion the
Respondent asks for the return of the vehicle and in the alternative “that the
Respondent provides the Applicant with an address where the motor vehicle
can be collected”. The relief sought here is simply asking “tell me where I can
find the vehicle”.
[17] Paragraph 37(b) in fact ask s less of the Applicant. It does not require the
Applicant himself to establish the whereabouts of the vehicle but simply to give
some pointers to the Respondent. In my view the details required from the
Applicant broadly fall within the relief that is sought in the Notice of Motion
namely “tell me where I can find it”.
[18] The details of the removal lie solely in the Applicant’s knowledge or are within
his control. This is his own version. If he can’t recall, he can consult his records
2 Para 19 of the judgment
3 Para 29 of the judgment
4 Para 33 of the judgment
5 Para 34 of the judgment
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or ask any of this employees who undertook the task at his behest. Any
suggestions that the might find himself in contempt of court are unfounded and
exaggerated.
[19] As to the second ground, there was a suggestion by Mr Bouwer during
argument that an unfairness had been meted out to the Applicant by this court
mero motu raising an issue and then not permitting the Applicant an opportunity
to respond thereto. It is important to stress here that this issue arises from the
papers themselves. In fact the Respondent deals with this in the Replying
Affidavit –
a. At para 25 “ . Ad paragraph 17 The Respondent admitted to having
removed the motor vehicle however seem to have forgotten the towing
company he hired if any, seem to have forgotten the instructions he gave
to that company if any. Therefore, I believe the contents of this paragraph
is not true.” , and
b. At para 29: “ I h umbly submit that my application satisfies the
requirements of a rei vindicatio remedy or further and/or alternative relief
that the court deems. WHEREFORE I pray that the above honorable court
grant an order in terms of the Notice of Motion and further request that the
Respondent's answering affidavit be dismissed with punitive costs for
misleading the court”.
[20] The issue flows directly from the Applicant’s version – he had it removed so he
must know who removed it for him. The Applicant had been cognised of this
issue not only by the question I asked but also by the alternative relief sought in
the Notice of Motion.
[21] As to not being given an opportunity to deal with this issue, while an offer was
made by Mr Bouwer to file an affidavit “ if the court wants/likes” no request was
made by him to stand the matter down for that purpose. The Applicant elected
not to put up such an affidavit. Hence, he could not have been “refused an
opportunity” to file further affidavits by the Court simply because none was
requested by him.
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[22] My view about the implausibility of the explanation provided by Mr Bouwer is
based simply on the fact that the Applicant himself had the vehicle removed
and only he was in a position to point out who had removed it even if was
unaware of which scrap yard it had been taken to. That view remains
unchanged.
[23] In paragraph 29 of my judgment I simply discuss what was stated in paragraph
16 of the replying affidavit. Nothing new was raised in that paragraph.
[24] The attack on paragraph 33 is equally without merit. Furthermore, t he
paragraph must be understood in context. Ms Sangweni’s submission was that
the Applicant had no right to remove the vehicle without a court order even if he
had a claim from arrear rentals and other costs against Mazambani, the tenant.
In other words even if he was exercising a landlord’s lien , he acted poorly by
removing the vehicle without an order of court. It was alleged that he had taken
the law into his own hands. In the Respondent’s view the Applicant was holding
his vehicle ransom against Mazambani’s debts or was withholding details of the
vehicle’s whereabouts, in violation of the Respondent's rights.
[25] As to the attack on paragraph 34 of the judgment, I simply reiterate that it is the
Applicant who removed the vehicle from the premises.
[26] As to the issue of costs, it is trite that costs are an exercise of the court's
discretion. Given this , and the facts of this case, it is my view another court
would not arrive at a different view.
[27] One other argument made by Mr Bouwer on behalf of the Applicant during the
hearing was that the order in para 37(b) contravened the Promotion of Access
to Information Act (PAIA) because the Applicant was a ‘ business’ and the
Respondent was required to comply with internal remedies. This ground was
not raised in the Notice of Appeal , was made up on the hoof and is without
merit.
[28] Last but not least I address the order in para 37(a) and whether this raises any
merit.
[28] Last but not least I address the order in para 37(a) and whether this raises any
ambiguity. I canvassed with the parties during the hearing whether my order
required variation or rectification. I t was submitted by Mr Shongwe that
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paragraph 37(a) was clearly understood to mean that the court had not granted
the first relief sought in the Notice of Motion and there was no need for a
variation. Mr Bouwer made no specific submissions on the issue of a variation
but maintained his argument that the Applicant was successful and costs
should follow suit.
[29] It might of course have been cleaner and preferable – given the inconsistencies
in the Applicant’s version- for me to order that he return the vehicle to the
Respondent. Undoubtedly, we would’ve arrived at the same point if such an
order was granted. However I have assumed good faith on the part of the
Applicant and have put aside all the inconsistencies in his version by requiring
him to provide the details in paragraph 37(b).
[30] In conclusion, the Applicant’s stance in this matter is perplexing. On the one
hand he maintains that the Respondent’s vehicle is a piece of scrap, having no
or little value and which he was led to believe was abandoned by Mazambani.
He had it removed seemingly in good faith. This is his version under oath. If
the scrap is no longer on his premises, the Applicant cannot then - in good faith
- quibble with being required to divulge th e details of who removed the vehicle
at his behest.
[31] In my view there are no reasonable prospects that another court would come to
a different conclusion.
[32] Accordingly the application for leave is dismissed with costs.
___________________________
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Heard on: 13 November 2025
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Delivered on: 21 November 2025
Appearances:
For the Applicant: Adv C Shongwe
Instructed by: Enhle Ngwane Attorneys Inc
For the Respondent: Adv R J Bouwer
Instructed by: Bernard Mans Attorneys
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 email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand down is deemed to be 21 November 2025.