THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT


CASE NO: 2025-091634








In the matter between:

CHRYSTYLE PACHOS APPELLANT

And

MFANAWOKULUNGA OBERT NTULI RESPONDENT
_________________________________________________________________

JUDGMENT
_________________________________________________________________

RATSHIBVUMO DJP:

Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for the hand-down is deemed to
be on 01 December 2025 at 10H00.

(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.

01 December 2025 ………………………...
DATE SIGNATURE

2
[1] Introduction.
The nature of the application before the Magistrate for Mbombela District (the
court a quo) was the subject of dispute between Appellant and the Respondent,
just as it was before this Court. That dispute entailed whether the application
was for a declarator to the effect that the Respondent was a lawful owner of the
African Grey Parrot (the parrot/the bird), or a simple rei vindicatio.1 A further
dispute was whether th e court a quo was competent to hear an application
seeking declaratory relief and whether a rei vindicatio could be heard in that
court by way of motion proceedings. That dispute continued before this Court
in the arguments presented on appeal. In a judgment handed down on 06 March
2025, in a hotly contested application, the court a quo ordered the return of the
bird to the Respondent. That order , however, does not declare the Respondent
the owner, and it makes no mention of rei vindicatio. One may ask, “What’s in
the name? A rose by any other name would smell as sweet.”2

[2] The fact that ownership of this parrot was fiercely contested is manifest not
only from the answering affidavit (which was disallowed in that application),
but also from the Small Claims Court's ruling, which dealt with the same matter
before it was referred to the court a quo. The Small Claims Court ruled that “the
case raised difficult and complex questions of law and fact that could not be
adequately and fairly dealt with before it.”3

[3] It cannot be gainsaid that this background informed the phrasing of the Notice
of Motion when the Respondent asked in Prayer 1, a declaration that he was the
lawful owner of the parrot. Realising that the Magistrate’s Courts lack the

1 See the Notice of Motion before it was amended by the Respondent before the court a quo wherein the
Respondent applied for an order to be declared a lawful owner and for the return of a bird the ownership of which
was equally disputed.
2 William Shakespeare, ROMEO AND JULIET, 1597.

was equally disputed.
2 William Shakespeare, ROMEO AND JULIET, 1597.
3 See the Small Claims Court order wherein the proceedings are stopped in terms of section 23(3) of Act No. 61 of
1984 on p. 003-49 on CASELINES.

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jurisdiction to grant declaratory orders,4 the Notice of Motion was amended to
omit the declaratory part, leaving only the vindicatio part. This, however, did
not change the fact that ownership was in dispute and that the court would have
to determine who the owner was before ordering a return of the bird. Whether
this finding is pronounced as a declaration or not is neither here nor there. What
matters is the sweetness of the smell of the flower, whatever the name.

[4] Before ordering the return of an African Grey Parrot back to the owner (the
Respondent), the court a quo said the following in the opening remarks of the
judgment:
“The application before the court is for the African Grey Parrot to be returned to the
applicant. The court is going to pause here and state that the application is not to
determine who the lawful owner of the bird is... That is beyond this court’s jurisdiction.
The declaratory order is for another forum, not this court. In determining the application
for the return of the bird, the court considers the following:
(i) the founding papers of the applicant;
(ii) the respondent’s opposing papers could not be considered due to the fact that the
application for condonation of the late filing was dismissed by the court on 12
December 202 4; the matter was then set down for hearing , and thereafter, the
matter became unopposed…”5

[5] The Appellant (Respondent before the court a quo) now appeals against that
order and/or declaration. The Respondent intensely opposes the appeal.

[6] Grounds of appeal.
The Appellant set out the grounds of appeal in the Notice of Appeal as follows:
4.1 The Honourable Magistrate erred in not finding that the Respondent’s
amended Notice of Motion stating:

4 Jurisdiction to grant declaratory orders is exclusively conferred on the Superior Courts by section 21(1)(c) of the
Superior Court Act, \No. 10 of 2013.
5 See the court a quo’s judgment on p. 003-143 on Caselines.

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i. “Ordering the First Respondent [Appellant] to return the African Grey
Parrot with microchip number 941000026296090 to the Applicant
[Respondent];
ii. The Applicant is hereby authorised to remove the said African Grey
Parrot from the premises of the First Respondent [Appellant], where it
is being kept in terms of the final order of this court dated 22 July 2024
or from the pos session of any person or entity which may be in
possession of the bird;”
is a relief of the reclaim of property by an owner of property, which constitutes
the remedy of rei vindicatio.

4.2 The Honourable Magistrate erred in not finding that the Respondent's cause of
action, being rei indicatio, should have been lodged as an action procedure in
terms of section 29(1)(a) of the Magistrates’ Court Act No. 32 of 1944 as a
creature of statute and not by application proceedings.

4.3 The Honourable Magistrate erred in not finding that the Respondent's
application should either have been dismissed or referred to oral evidence.

[7] Rei vindicatio: Statutory limitation.
The Magistrate Court derives its authority to adjudicate rei vindicatio claims
from section 29(1)(a) of the Magistrates’ Court Act, No. 32 of 1944 (the Act),
which provides,
“Jurisdiction in respect of causes of action
actions in which is claimed the delivery or transfer of any property, movable or
immovable, not exceeding in value the amount determined by the Minister from
time to time by notice in the Gazette…”

[8] The question as to whether a rei vindicatio claim can be brought by way of
application proceedings has been settled in our law. In Mokoena v Minister of
Law and Order,6 the Full Bench dealt with the interpretation of section 29(1)(a)

6 1991 (3) SA 187 (T).

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of the Act in the context of rei vindicatio . Just as in casu, the appellant in
Mokoena, commenced the rei vindicatio claim by way of motion proceedings
before the Magistrate ’s Court, which was dismissed on jurisdictional
limitations.

[9] Aggrieved by th is outcome, the appellant in Mokoena appealed against the
decision, arguing on appeal that the word 'action' could and should include
proceedings which are initiated by way of a notice of motion. He further
contended that, because s 29(1 )(f) was added by s 1 of Act 56 of 1984 and
because s 16(1) of the Matrimonial Property Act7 provides that applications can
be made, therefore if 'action' in para graph (f) is construed as an 'application' ,
then the word 'action' in s 29(1)(a) includes an application. It was contended that
it was not the intention of the Legislature that a rei vindicatio cannot be brought
on notice of motion and that it intended to 'give the public as large as possible
access to all the procedures of the magistrate's court'.8

[10] The Court of Appeal in Mokoena rejected this submission, saying there
was no authority to support it. It reasoned out that M agistrates' Courts have no
inherent jurisdiction and that their jurisdiction must be deduced from the four
corners of the statute under which they are constituted. This applies not only to
the empowering sections of the Act but also to the Rules. A magistrate cannot
exercise powers which are not expressly stated in the Act or the Rules. Authority
may be implied as well as expressed . When the Act gives jurisdiction to the
court on the subject in dispute , its purpose is not to be defeated because the
ancillary powers whic h are necessary to enforce the judgment have not been
especially mentioned.9


7 No. 88 of 1984.
8 Mokoena supra at 191H-J – 192A.
9 At p. 192B.

6
[11] Although the appellant in Mokoena, had a compelling case on merits, the
appeal was dismissed, as this was a matter which should have been instituted in
the Magistrate's Court by way of action, or in any manner, in the Supreme
Court.10

[12] Upon close reading of the judgment of the court a quo, the impression is
created that the court was of the view that, once an application is unopposed,
the applicant would be entitled to the relief sought, irrespective of jurisdictional
limits. This is apparent from the fact that the order sought was granted without
any evaluation or consideration of the jurisdictional provisions.

[13] As much as the application seeking relief in excess of monetary
jurisdiction, or the cause of action having arisen outside the court’s area of
jurisdiction, cannot be granted even when unopposed, the court a quo erred in
not engaging whether it had jurisdiction to hear an application for the return of
property, against the express provision of the Act. On this aspect alone, the order
granted by the court a quo stands to be set aside.

[14] Rei vindicatio: Ownership.
The inherent nature of vindicatory relief means that the court a quo, cannot grant
an order for the return of movable property unless satisfied that ownership has
been established.

[15] The Appellate Division in Chetty v Naidoo11 made it clear that ownership
is not peripheral to vindicatio; it is the essence of the remedy . Jansen JA held
that the vindicatory action is governed primarily by the legal concept of

10 See also Cloete v Karee-Aar Landgoed BPK 1997 (3) SA 30 (NC).
11 [1974] 3 All SA 304 (A) at p. 309-310

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ownership.12 Unless ownership is established, the remedy is simply not
available.13 This foundational principle has never been doubted.14

[16] A similar articulation appears in Gardner v Dampier Development &
Others:15
“One of the essential elements of an actio rei vindicatio is that a party seeking such
relief must establish the right of ownership. The author D Carey Miller in THE
ACQUISITION AND PROTECTION OF OWNERSHIP (1986) at p. 256 after making
the above point goes on to stress that:
"As Voet points out, the action is not available to those who have not yet obtained
ownership as for example, a purchaser who has paid the price but not yet obtained
delivery. Nor, indeed, is it enough for the plaintiff to gain ownership pendente
lite because it cannot be competent for a party to institute a vindiatory action
anticipating the acquisition of ownership".

[17] The Magistrate in this matter expressly stated that she lacked jurisdiction
to determine the lawful owner of the bird. This finding should have disposed of
the matter. Having disavowed the jurisdiction to determine ownership, the court
a quo could not thereafter issue an order whose validity depends on that very
determination. Form cannot defeat substance. The label affixed to the order does
not alter its character , hence the question, “What’s in the name?” 16 A court
cannot do indirectly what it cannot do directly.


[18] Condonation for the late filing of the answering affidavit.

12 Chetty v Naidoo supra at 309 “The incidence of the burden of proof is a matter of substantive law (Tregea and
Another v. Godart and Another, 1939 A.D. 16 at p. 32), and in the present type of case it must be governed,
primarily, by the legal concept of ownership.”
13 Chetty v Naidoo supra at 309 “The owner, in instituting a rei vindicatio, need, therefore, do no more than allege
and prove that he is the owner and that the defendant is holding the res—the onus being on the defendant to allege

and establish any right to continue to hold against the owner (cf. Jeena v. Minister of Lands, 1955 (2) S.A. 380
(A.D.) at pp. 382E, 383).”
14 Thepanyega N O and Others v Letsoalo and Others (73/2021) [2022] ZASCA 30 (24 March 2022) at para 9
citing Chetty v Naidoo supra at p. 310.
15 [2010] JOL 25750 (ZH) at p. 3
16 See fn 2 supra.

8
It is apposite for this Court to revisit the court a quo’s decision in the application
for condonation for the late filing of the answering affidavit. The Respondent’s
argument before this Court heavily relied on the court a quo's ruling, excluding
the answering affidavit. The Respondent’s case , which influenced that ruling,
was that the Appellant’s answering affidavit should not be allowed as it was
late, and the reasons given for the lateness were flimsy. Once the condonation
was refused, nothing else advanced by the Appellant could be considered by the
court. The application was therefore heard unopposed, as no answering affidavit
was accepted.

[19] When invited to address the Court on jurisdictional impediments, the
Respondent had very little to submit, saying that these should have been raised
before the court a quo by way of an answering affidavit, and that the Appellant
failed to do so. The Respondent could not even address the Plascon-Evans rule,
despite being requested to do so by this Court. The Respondent’s view was that
the Appellant failed to oppose the application before the court a quo and, for
that reason, was barred from raising any aspect for consideration by this Court.

[20] At the time the court considered the condonation application, it already had
the answering affidavit before it, as well as the affidavit in support of the
condonation, in which the Appellant set out the reasons for the delay in filing it.
In the answering affidavit, the Appellant challenged the court a quo 's
jurisdiction to hear the rei vindicatio application. It also raised several factual
disputes that could not be determined from the papers. Lastly, the answering
affidavit opposed the attempts by the Respondent to have the Notice of Motion
amended.

[21] As for the affidavit filed in support of the condonation application, the
Appellant highlighted that the delay was mainly due to ongoing negotiations

9
between the parties, which she hoped would settle the dispute . It also
emphasised that the 30-day delay was not significant compared with the main
application, which was launched almost three years after the bird was lost and
found.

[22] The court a quo accepted the reasons advanced by the Appellant as being
bona fide. It , however, reasoned that the application should be dismissed
because it did not address the degree of lateness and failed to show good cause.17
The court a quo reached this decision despite supposedly relying on the
Constitutional Court judgment of Ferris and Another v Firstrand Bank Limited
and Another,18 where Moseneke DCJ said,
“In Bertie Van Zyl 19 this Court held that lateness is not the only consideration in
determining whether condonation may be granted . It held further that the test for
condonation is whether it is in the interests of justice to grant it. As the
interests-of-justice test is a requirement for condonation and granting leave to appeal,
there is an overlap between these enquiries. For both enquiries, an applicant’s
prospects of success and the importance of the issue to be determined are relevant
factors.” [My emphasis].

[23] Interestingly, the court a quo made no finding regarding the interests of
justice, to wit, the prospects of success and the importance of the issues raised.
Considering what this Court already held in respect of the court a quo ’s
jurisdiction to hear an application for rei vindicatio above, and the factual
determination in motion proceedings, it cannot be gainsaid that the issues raised
in the answering affidavit were important.

[24] The decision to exclude the answering affidavit is irreconcilable with the
reasoning of the court a quo , which, with approval, quoted from the

17 See the court a quo’s judgment on the condonation application on pp. 003-201 to 003-302 on Court Online.
18 (CCT 52/13) [2013] ZACC 46; 2014 (3) BCLR 321 (CC); 2014 (3) SA 39 (CC) (12 December 2013) at para 10.

19 [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009 (10) BCLR 978 (CC) at para 14.

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Constitutional Court’s judgment the factors to be considered in a condonation.
Reference to this judgment appears to have been a mere lip service without
applying its principles to the application before it. The fact that the court a quo
chose not to address those issues in its main judgment, despite them glaring
from the answering affidavit that was before it, is illogical.

[25] One cannot think of the prejudice suffered by the Respondent that a costs
order could not ameliorate. This was not an application to submit the answering
affidavit on a future date, but a condonation for what had already been filed,
albeit late. The Respondent still had a chance to reply thereto. It appears the
Respondent wanted to avoid responding thereto at all costs. In Media 24 (Pty)
Ltd and Another v Maluleke ,20 the Full Court of the Limpopo Division of the
High Court dealt with an appeal in which the Appellant was aggrieved by the
exclusion of its supplementary answering affidavit, the court below holding that
it was brought on short notice and on the date of the hearing of the main
application. The Full Court held,
“Any prejudice suffered could have been ameliorated by the necessary cost order, if so
required, than to forge and exclude the admission of supplementary affidavit , the
contents of which were bound to change the course of the application.”21

[26] In light of the above, the dismissal of a condonation for late filing of the
answering affidavit by the court a quo was a misdirection.

[27] The Plascon-Evans rule.
It is trite that motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause facts. Unles s the
circumstances are exceptional, m otion proceedings cannot be used to resolve
factual disputes because they are not designed to determine

20 (HCA 05/2024) [2025] ZALMPTHC 1 (3 February 2025)
21 Media 24, supra, at para 26

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probabilities.22 There is no doubt that the court a quo was aware of the factual
disputes inherent in the application, given the ruling by the Small Claims Court
referred to in paragraph 2 above and the contents of the answering affidavit it
refused to accept. In National Director of Public Prosecutions v Zuma ,23 the
Supreme Court of Appeal held,
“It is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits, a final order can be granted
only if the facts averred in the applicant's affidavits, which have been admitted by
the respondent, together with the facts alleged by the latter, justify such order.

[28] The Respondent was fully aware of the disputes that could arise, given the
outcome of the Small Claims Court. The Respondent was therefore entitled to a
positive result only if the facts averred in his affidavit, which have been admitted
by the Appellant, together with the facts alleged by the latter, justif ied the
recourse he sought. Clearly, this was not one of such cases. The disputes in this
case made the application stillborn.

[29] The Respondent appears to have utilised every ammunition the law
afforded to him in the battle against the Appellant over the prized bird. A
seasoned soldier knows that to win the battle, it is not always necessary to fire
all the ammunition one can lay his hands on. Sometimes, intelligence that leads
to victory can be secured by sparing the enemy’s life. That is being strategic in
a fight.

[30] If the condonation for the late filing of the answering affidavit had not been
opposed, it could have afforded the Respondent a window to convert the
application into a trial to resolve the disputes raised in the answering affidavit.
Had this been done, he would have crossed the two hurdles currently standing

22 See National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) per Harms JA, at para 26.
23

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FOR THE APPELLANT: ADV. LH MAKAMU
INSTRUCTED BY: ANDRE DU PLESSIS ATTORNEYS
MBOMBELA

FOR THE RESPONDENT: MR. JH COETZEE
INSTRUCTED BY: OBERT NTULI INC.
MBOMBELA
DATE OF HEARING: 24 OCTOBER 2025

DATE OF JUDGMENT: 01 DECEMBER 2025