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-IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
VIRTUAL FARMER RSA RF (PTY) LTD
(Registration number: 2021/814747/07)
and
RSP FARMING SOLUTIONS (PTY) LTD
(Registration number: 2017 /185907 /07)
OOS VRYSTAAT KAAP OPERATION LTD
(Registration number: 1999/004069/06)
Not reportable
Case no: 2025-228140
APPLICANT
FIRST RESPONDENT
INTERVENING THIRD PARTY
SECOND RESPONDENT
Neutral citation: Virtual Farmer RSA RF (Pty) Ltd v RSP Farming Solutions (Pty) Ltd and
Another (2025-228140) [2026] ZAFSHC 106 (20 March 2026)
Coram: DAFFUE J
Heard: 4 December 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email, by uploading on case lines and released to SAFLII. The date
and time for hand-down is deemed to be 1 0h0O on 20 March 2026.
Summary: Ownership of maize - applicant, the alleged buyer of the maize failed to
prove actual delivery - the court also held that the applicant failed to prove delivery by
way of constitutum possessorium - application dismissed.
2
ORDER
1 The application is dismissed.
2 The first respondent shall pay its own costs in respect of opposition of the
application.
3 The applicant shall pay the second respondent's costs of intervening as well as
opposition of the application, inclusive of the costs of counsel on scale C.
Daffue J
Introduction
JUDGMENT
[1] About five years ago, I commented as follows in Firstrand Bank Limited v
Oosthuizen: 1
'There is a well-known saying in the Afrikaner community that "'n boer maak 'n plan" directly
translated into English as "a farmer makes a plan." This saying has a positive connotation insofar
as it has always been accepted that farmers will rise above difficult circumstances by making use
of innovative and skilful measures. For example, if a combine harvester breaks down at a crucial
time during the harvesting season, the farmer will instead of waiting two or three weeks for a new
part to arrive, modify the old defective part to get the machine running again. Many more
examples can be quoted from personal experience.' 2
[2] Mr Jacobus Cornelius Prinsloo (Prinsloo) is a director of RSP Farming Solutions
(Pty) Ltd (RSP), the first respondent in this application. He is a farmer and apparently the
driving force and person in charge of RSP. No doubt, RSP has been in financial distress
for quite some time, bearing in mind the facts deposed to in this opposed application.
RSP, through Prinsloo, borrowed left, right and centre in order to keep its farming
1 Firstrand Bank Limited v Oosthuizen (2020] ZAFSHC 258 (12 November 2020).
2 Ibid para 1.
3
enterprise afloat. In doing so, Prinsloo clearly did not play open cards with its credit
providers. His plans were in direct contrast with the well-known saying mentioned above.
[3] RSP owes Virtual Farmer RSA (RF) (Pty) Ltd (Virtual Farmer), the applicant in
these proceedings, in excess of R23 million insofar as it has failed to deliver white maize,
as undertaken. It owes Oos Vrystaat Kaap Operation Ltd (OVK), the intervening party
and cited as second respondent in this application, about R105 million. These two
creditors are at loggerheads as to who is entitled to several tons of white maize harvested
by RSP and stored on the farm Welmansrust, Bothaville, RSP's the immovable property.
[4] When this application was heard, Pannar Seeds (Pty) Ltd had already instituted
liquidation proceedings against RSP, which underscores RS P's financial distress and its
alleged inability to pay a major creditor. The details of Pannar Seeds' alleged claim have
not been recorded in the proceedings before this court and it is also unnecessary to deal
with that claim any further. Mention is also made in the papers of other creditors.
[5] Well-knowing that it was impossible to settle its indebtedness to the applicant, the
second respondent and/or Pannar Seeds, Prinsloo devised a devious plan to avoid
complying with its contractual obligations towards the applicant, most probably because
of being pressurised by OVK.
A brief factual history
[6] RSP is a member of OVK, who as its credit provider granted a credit facility of R30
million in respect of the 2021/22 summer harvest. OVK's credit facility incorporated a
cession of all RSP's present or future claims of whatever nature arising from the
cultivation of any crops. The cultivated crops were to be stored in silos and silo certificates
relating to such storage, to be ceded to OVK, had to be delivered. OVK granted a credit
loan facility to RSP for the 2024/25 summer growing season totalling more than R26
loan facility to RSP for the 2024/25 summer growing season totalling more than R26
million. Together with its outstanding credit loan facility in excess of R75 million and a
'month account', RSP was indebted to OVK on 27 November 2025 in the amount of
R104 261 012. 47.
[7] In 2024, RSP applied for credit from Virtual Farmer to plant white maize and soya
beans during the summer of 2024/25. Two written agreements were entered into between
4
these parties, being annexures VF4 and VF5 to Virtual Farmer's founding affidavit. I shall
deal with these agreements later herein. Fact of the matter is that it is not denied that
Virtual Farmer extended credit to RSP, inclusive of interest, although RSP denied the
correctness of the amount of R37 997 177,71, calculated as on 31 August 2025.
[8] Initially, when RSP had to deliver the harvested white maize in accordance with
Virtual Farmer's instructions and the agreements entered into, there was no problem.
However, it appeared soon that RSP did not deliver white maize as expected of it.
Prinsloo, on its behalf, blamed the heavy rains and the fact that the white maize had to
be dried before delivery could take place. When it became evident that RSP would not be
able to deliver white maize in accordance with its agreement with Virtual Farmer, a new
agreement was entered into on Virtual Farmer's version, being annexure VF? to the
founding affidavit, pertaining to the 2025/26 harvesting season. A third party, Rand Agri
settled RSP debt of R23 437 537,43 on condition that it would be repaid from a draw in
respect of a new 2025/26 contract. Virtual Farmer's letter dated 27 October 2025
containing the agreement and specifically paragraph 6 thereof, reads as follows:
'RSP will continue to deliver the sorted and cleaned maize on the new 2025/26 contract. Once
the 2024/25 outstanding amount is reduced to a reasonable amount as agreed in writing between
VFRSA and RSP, then the new 2025/26 contract can be upgraded to a different Option for a
higher pre-payment.'
[9] When it appeared to Virtual Farmer that RSP started delivering maize to third
parties, it took steps which eventually culminated in an urgent application. OVK got wind
of the application and applied for leave to intervene. On 28 November 2025, Loubser J
made the following order by agreement between the parties:
'IT IS ORDERED BY AGREEMENT BETWEEN THE PARTIES THAT:
'IT IS ORDERED BY AGREEMENT BETWEEN THE PARTIES THAT:
1. The Applicant is granted condonation for its failure to comply with the rules of this Court
("the rules") in respect of form, service and time and relating to motion proceedings and the
Applicant shall be heard as one of urgency in rule 6(12), insofar as prayers 2, 3, 4, 5, 6, 7, 8 and
9 hereunder are concerned. The First Respondent reserves his right to dispute the urgency of
the application.
2. The Intervening Third Party, Oos Vrystaat Kaap Operations Ltd ("OVK"}, is granted leave
to intervene in this application and is hereby joined as the Second Respondent to these
proceedings.
3. The Respondent, RSP Farming Solutions (Pty) Ltd - shall hereinafter be referred to as
5
"the First Respondent").
4. The First and Second Respondent, and any person acting by, through or under them, are
interdicted and restrained from selling, delivering, disposing of, alienating, encumbering, blending,
moving off-site, or in any manner whatsoever dealing with or diminising any maize situated at the
Farm Welmansrust, Bothaville, Free State Province ("the premises"), pending the further
determination of this application.
5. The First Respondent is directed to file its answering affidavit on or before Monday, 1
December 2025.
6. The Second Respondent is directed to file its answering affidavit on or before Tuesday, 2
December 2025.
7. The Applicant is directed to file its replying affidavit to the First and Second Respondent's
answering affidavits on or before Wednesday, 3 December 2025.
8. The application is postponed to Thursday, 4 December 2025.
9. The wasted costs of 28 November 2025 are reserved for determination on 4 December
2025.'
[1 O] The parties filed answering affidavits in accordance with the aforesaid orde r. On
Thursday night , 4 December 2025, I heard oral arguments after having received written
heads of argument from the parties just before then. That day I not only sat in the
unopposed motion court the whole day but also had to deal with other urgent applications.
Judgment in this application was reserved.
Relief sought
[11] Loubser J granted interim relief to Virtual Farmer to prevent RSP or any othe r
person from selling or in any manner deal with the white maize , save for delivery to Virtual
Farmer, pending finalisation of the application .
[12] The relief sought and to be adjudicated by me appears in paragraph 2 of the notice
of motion and reads as follows :
'Declaring that the Applicant is the owner of, alternatively entitled to immediate delivery of all white
maize situated at the Farm Welmansrust, Bothaville, Free State Province ("the Premises"}, which
was acquired by the Applicant from the Respondent in terms of the written agreements attached
was acquired by the Applicant from the Respondent in terms of the written agreements attached
to the Founding Affidavit ("the Maize").' (Emphasis added .)
6
The parties' contentions
[13] I shall deal with the evidence in more detail. I restrict myself to the following under
this heading. Virtual Farmer submitted that it is entitled to relief based on its ownership of
all the white maize harvested by RSP. It relies on the written agreements referred to
above. In support of an alternative submission, reliance is placed in the founding affidavit
on an entitlement to delivery of all the white maize on the aforesaid farm. RSP approached
its opposition of the application, relying on an absence of urgency. I made it clear during
oral argument that I did not intend to deal with urgency, bearing in mind the history of the
litigation. RSP does not deny that it owes Virtual Farmer money, suggesting that an
amount of just over R 16 million is due. It reiterated that 'there was sufficient maize to
cover the maize that still had to be delivered/sold in order to settle the balance in terms
of the 2025/2026 season, as well as to OVK, the respondent's other contractual
obligation.' Therefore, whilst in essence admitting its liability towards Virtual Farmer, it
submitted that 'there is ample maize to pay any claim from the applicant.'
[14] OVK's opposition is on a totally different level than that of RSP. On its version and
as creditor of RSP, it established a silo depot on RSP's farm for the purpose of receiving
and restoring grain in its own silo bags at this depot. It entered into this agreement due to
the fact that it revised RSP's credit facility to R105 million recently. On 27 November
2025, ie a day before the application was initially heard, RSP's indebtedness to it was
R104 261 012.00. The silo bags in which the grain is stored are clearly marked as OVK's
silo bags. Furthermore, a security company was instructed to ensure that the grain silo
depot was properly secured. Consequently, all white maize in OVK's silo bags at the
depot were in OVK's possession and under its control. Therefore, it denies that Virtual
depot were in OVK's possession and under its control. Therefore, it denies that Virtual
Farmer became the owner of any of the white maize in possession and under control of
OVK. OVK also relies on a cession as mentioned above that pre-dates the agreements
between Virtual Farmer and RSP.
Evaluation of the evidence and submissions of the parties with reference to some
authorities
[15] I quote the following well-known dictum from National Director of Public
7
Prosecutions v Zuma;3
'Motion proceedings, unless concerned with interim relief, are all about the resolution of 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. 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 (Mr Zuma's)
affidavits, which have been admitted by the respondent (the NDPP), together with the facts
alleged by the latter, justify such order. It may be different if the respondent's version consists of
bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched
or so clearly untenable that the court is justified in rejecting them merely on the papers. The court
below did not have regard to these propositions and instead decided the case on probabilities
without rejecting the NDPP's version.'4
[16] The first issue to be considered is the ownership of the white maize held by OVK
in the depot on RSP's farm. There is, in my view, no reason not to accept the evidence
presented by OVK. It is far from far-fetched. It is also not false. In fact, the opposite is
true. Its version of the silo depot and storage of the white maize in its marked silo bags
was not attacked at all, neither in the replying affidavit, nor in the arguments presented
on behalf of Virtual Farmer.
[17] It is trite that ownership of movables does not pass upon mere agreement by the
parties to transfer ownership. Delivery of such movables, either physically or
constructively, is needed for ownership to pass to the purchaser. I refer to the judgment
of Corbett JA in Lendalease Finance (Ply) Ltd v Corporacion De Mercadeo Agricola and
Others.5
[18] No proper delivery has taken place in casu, save in respect of those trucks which
[18] No proper delivery has taken place in casu, save in respect of those trucks which
had already transported white maize from RSP's farm to the various buyers in accordance
with Virtual Farmer's scheme. The white maize presently on RSP's farm has neither been
delivered physically, nor constructively, to Virtual Farmer. In fact, delivery has taken place
in accordance with the evidence presented by OVK and thus contrary to any agreement
entered into between Virtual Farmer and RSP. OVK's version must be accepted insofar
3 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA).
4 Ibid para 26.
5 Lendalease Finance (Ply) Ltd v Corporacion De Mercadeo Agricola and Others 1976 (4) SA 464 (A) at
489G-491A. I
8
as I deal with opposed motion proceedings for final relief. There is no reason to reject
OVK's version which is much more in line with the objective facts and the probabilities
that that of Virtual Farmer.
[19] Virtual Farmer failed to show on what mode of delivery of the white maize it relies.
This must be considered by referring to the written agreements relied upon by Virtual
Farmer. Another aspect pointing towards Virtual Farmer's failure to prove transfer of
ownership by way of delivery is contained in paragraph 2.7 of the definitions clause of the
written agreements entered into between Virtual Farmer and RSP. It reads as follows:
"'deliver or "delivery/ies" means the delivery of crops by THE SUPPLIER to THE BUYER, at the
CMA storage facilities (warehouse) nominated by NEDBANK, acting as Facility Agent, as may be
agreed to from time to time by the parties and initially stated in Annexure 2.'
To put the reader in the picture, RSP is the supplier of the white maize and Virtual Farmer
is referred as the buyer.
[20] In terms of paragraph 13.3.11 of annexure VF4, RSP had to 'deliver the crop to
the agreed facilities or at such other place and party as may be agreed by the Buyer from
time to time ... ' My prima facie view, without coming to a conclusion as it is not necessary
for adjudicating the dispute, is that Virtual Farmer never intended to obtain ownership,
but merely the right to sell the white maize, once harvested, to third parties. It is recorded
in the agreements, that it 'has an exclusive supply agreement with the Off-Takers that
buys (sic) all the goods under the programs.' It is apparent that Virtual Farmer has back
to-back agreements with various third parties to whom the white maize is delivered. It is
clear from the papers that none of the white maize on the farm was physically delivered
to Virtual Farmer.
[21] The only possible mode of delivery dealt with by the parties during oral argument
[21] The only possible mode of delivery dealt with by the parties during oral argument
is by way of constitutum possessorium. In the absence of actual delivery, there might
have been constructive delivery in the form known as constitutum possessorium. The
requirements for this form of delivery were authoritatively stated by Jansen JA in
Mankowitz v Loewenthafo (Mankowitz). I quote:
'The absence of "physical prehension " by the transferee is, however, no obstacle to a delivery by
6 Mankowitz v Loewenthal 1982 (3) SA 758 (A) 7668-G; see also Bank Windhoek Bpk v Rajie en 'n Ander
(1993) ZASCA 148; 1994 (1) SA 115 (AD) 141C-142G.
9
way of constitutum possessorium. By agreeing to and intending thenceforth to hold the res on
behalf of the transferee, the possessor ceases to possess and commences to hold as agent for
the transferee, who, by intending to possess through the transferor, now becomes the possessor.
The requisites for a constitutum possessorium, based on Scherer (ad De Groot's Introduction. 2
48. 28), are stated by SOLOMON JA in Goldinger's Trustee v Whitelaw & Son 1917 AD 66 at 85
as follows:
"(1) That the granter be himself in possession of the things to be transferred; (2) that he cease to
possess in his own name and begin to possess for another; (3) the consent of the grantee; and
(4) some causa or justus titulus."
For present purposes (2) and (3) are of crucial importance: there must be an agreement to the
effect that the transferor henceforth holds on behalf of the transferee. This requires at least some
external manifestation of the transferor's intention. A declaration by the transferor to the following
effect would make the matter clear: quod meo nomine possideo, constituto me possidere alieno
nomine, or constituo me possidere alieno nomine. According to Savigny the intention
"must... necessarily be expressly declared, or necessarily follow from the other circumstances of the case".
(On Possessions 29 -translation by Kelleher.) He states that a constitutum is not to be presumed
and it is clear that he only infers the intention "from the other circumstances of the case" where
there is some other transaction entitling the transferor to remain a holder, eg where he "gives a
thing as a gift, and at the same time hires it". (Cf Lauterbach ad D 41.2 s 18.) This is consonant
with Scharer requiring a causa or justus titulus - a causa detentionis for the transferor. It is from
the existence of this transaction that the transferor's intention to hold on behalf of the transferee
is inferred.'
[22] Corbett CJ, writing for a unanimous court in Marcard Stein & Company v Port
[22] Corbett CJ, writing for a unanimous court in Marcard Stein & Company v Port
Marine Contractors (Ply) Ltd and Others, 7 (Marcard) confirmed the following trite principle
accepted in Mankowitz. I quote:
'It is clear from this statement [by Jansen JA in Mankowitz] that it is essential for transfer by way
of constitutum possessorium that there should be agreement to the effect that the alleged
transferor (in this case Verena) should henceforth hold the property in question on behalf of the
transferee (Alvo). •8
The Chief Justice continued:
'These documents fail signally to establish any such agreement that would give rise to a delivery
by way of constitutum possessorium. In fact the only kind of delivery which seems from them to
7 Marcard Stein & Company v Port Marine Contractors (Ply) Ltd. and Others [1995] ZASCA 76; 1995 (3)
SA 663 (AD).
8 Ibid 673A-B.
10
have been contemplated by the parties was physical, ie actual, delivery.' 9
I referred to the agreements relied upon by Virtual Farmer and the mode of delivery
agreed upon therein, being actual physical delivery as was the case in Mancard .
Therefore, I conclude that Virtual Farmer is not the owner of any of the white maize
presently stored on RSP's farm.
[23] The next question to be considered is whether Virtual Farmer is 'entitled to
immediate delivery of all white maize situated at the Farm Welmansrust .. .' which was
acquired by it 'in terms of the written agreements' as claimed in the notice of motion.
[24] There is a serious conflict between the versions of Virtual Farmer and OVK on the
papers. Virtual Farmer contracted for WM1 (white maize grade 1) to be sold and delivered
to it. It has not been proven that any white maize with such a grading is in possession of
RSP and/or stored on its farm. In any event, it is not entitled to all white maize in terms of
its written agreements. More importantly, the version of OVK cannot be rejected on the
papers as untenable and/or false.
[25] OVK's knowledge of and alleged waiver of its security in favour of Virtual Farmer
must be put into context. Firstly, annexures 12a and 12b of the written agreement relied
upon by Virtual Farmer, annexure VF4 to the founding affidavit, has neither been
completed, nor signed by anyone on behalf of OVK. Blank documents were presented to
the court as part of annexure VF4. This is disturbing and created doubt in my mind as to
what transpired. It was unnecessary for OVK's deponent to deal with these blank
documents in its answer to the founding affidavit. Out of the blue, a completed annexure
12a allegedly signed by a certain Aubrey Marais is attached to Virtual Farmer's replying
affidavit in response to OVK's answering affidavit. There is no indication as to this
person's authority and whether he had been properly mandated to waive OVK's rights.
person's authority and whether he had been properly mandated to waive OVK's rights.
This original document has not been placed before the court. Apparently, it was sent by
Prinsloo to Virtual Farmer by email. OVK has not forwarded the document to Virtual
Farmer based on the evidence before me.
[26] Bearing in mind the urgency with which the parties approached the matter, as is
9 Ibid 673F-G.
11
evident from the order by Loubser J and the filing of papers thereafter, it was not possible
for OVK to respond meaningfully, bearing in mind that Virtual Farmer's replying affidavit
was filed on Wednesday, 3 December 2025, the day before the hearing of the opposed
application. Virtual Farmer decided to bring an urgent application and it should be blamed
for filing incomplete documents. It is just not proper to submit that OVK could have asked
for a postponement and relief to file a rejoinder to Virtual Farmer's replying affidavit. I
heard this application during the evening of Thursday, 4 December 2025, and have good
reason to believe that if such an application was sought by OVK, it would have been
opposed vehemently. Having considered the manner in which the matter was placed
before the court, the applicant should accept responsibility. I am not prepared to find that
the document relied upon in reply formed part and parcel of the written agreement relied
upon by Virtual Farmer and/or that the Mr Marais referred to was duly authorised by OVK
to waive any of its rights.
[27] The objective. evidence shows that OVK increased RSP's credit facility during
2025. Surely, it would not have done so if it was firstly, aware of Virtual Farmer's
involvement as a creditor and secondly, that it had waived its security in favour of Virtual
Farmer.
[28] Virtual Farmer has not made out a case that it is entitled to delivery of all or any
white maize situated on the farm Welmansrust. Consequently, its application stands to
be dismissed.
Conclusion
[29] I mentioned in the previous paragraph that the application should be dismissed.
RSP is notwithstanding the general rule applicable to litigation, not entitled to any of its
costs in opposing the application even insofar as it is a successful party. It clearly caused
Virtual Farmer to launch the application proceedings based on its initial compliance with
its contractual obligations towards Virtual Farmer and its later retraction and/or failure to
its contractual obligations towards Virtual Farmer and its later retraction and/or failure to
comply. Virtual Farmer was fully entitled to launch the proceedings up until the stage
when OVK intervened. RSP shall pay its own costs in opposing the application. OVK, as
the successful party, is entitled to its costs, inclusive of the costs of senior counsel on
scale C.
Order
1 The application is dismissed.
12
2 The first respondent shall pay its own costs in respect of opposition of the
application.
3 The applicant shall pay the second respondent's costs of intervening as well as
opposition of the application, inclusive of the costs of counserorr::::i1.,i:m:,....i..,
JP DAFFUE
JUDGE OF THE HIGH COURT
13
Appearances
For the Applicant: P Zietsman SC
Instructed by: Gerrit Coetzee Attorneys
c/o Muller Gonsior Attorneys, Bloemfontein.
For the First Respondent: A Sander
Instructed by: EG Cooper Majiedt Inc, Bloemfontein.
For the Second Respondent: PJJ Zietsman SC
Instructed by: Phatshoane Henney Inc, Bloemfontein.