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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: A24/10982
DOH: 24 JULY 2025 FINAL
SUBMISSIONS: 3 OCTOBER 2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
…………..………….............
SIGNATURE DATE
In the matter between:
PROTOTYPE (PTY) LIMITED trading as
THE MACHINING MAN APPELLANT
AND
FENG CHI SHEN RESPONDENT
This Judgment was handed down electronically and by circulation to the parties’
legal representatives by way of email and shall be uploaded on Caselines. The
date for hand down is deemed to be on 30 March 2026
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JUDGMENT
MALI J (Nkoenyane AJ concurring)
Introduction
[1] This appeal is against the whole judgment and order of AM Mafisa, Acting
Regional Magistrate of the Regional court for Benoni, court a quo, granted
on 19 August 2024. The court a quo granted an order for the return of the
motor vehicle which was in possession of the appellant (the respondent in
the court a quo) to the respondent (the applicant in the court a quo).
[2] The appellant is Prototype Development Limited trading as Machining
Man, whose sole shareholder and Director is Mr Gary Law. The
respondent
Mr Feng Chi Shen is the sole shareholder and director of Evergreen
Classics Pty (Ltd) (Evergreen). The motor vehicle forming the subject of
this appeal is registered in the name of Evergreen.
[3] The respondent brought an urgent ex parte application for a rei vindicatio
order against the appellant, seeking the release of a motor vehicle (a rare
1987 BMW 333i valued at approximately R1 million) to an independent
third party pending the outcome of litigation. The court a quo granted an
interim order with a rule nisi returnable on 28 November 2023.
[4] On the return date, the appellant raised various points in limine . The court
a quo dismissed these points and confirmed the rule nisi , granting a final
order against the appellant. It is against the dismissal of these points in
limine that the appellant now appeals.
Background facts
[5] On 25 July 2022, the motor vehicle was delivered to the appellant's
premises at Unit […] , B[…] H[…] , Number […] , D[…] Road, B[…] D[…] ,
Midrand. The vehicle was delivered for the installation of parts to restore it
to its original condition, with the purpose of resale at a greater price.
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[6] A dispute subsequently arose between the parties concerning payment of
two invoices in the amount of R237 894.43. The appellant refused to
release the motor vehicle, claiming a lien over it for the amount owed. The
respondent thereafter launched an urgent application in the court a quo.
The Court a quo's Findings
[7] The appellant raised three points in limine before the court a quo: First,
that the respondent lacked locus standi to bring the application as the
motor vehicle belonged to Evergreen Classics ("Evergreen"), a separate
juristic entity. Second, the court lacked territorial jurisdiction because the
services were rendered at the appellant's business premises in Kyalami,
which falls outside the Benoni court's jurisdiction. Last, that the court
lacked monetary jurisdiction because the vehicle was valued between
R1.2 million and R1.5 million, exceeding the court's monetary jurisdiction
of R400 000.
[8] The court a quo dismissed all three points. Regarding locus standi , it
found that the respondent was the person who concluded the verbal
agreement with the appellant, and that by admitting the respondent was
the user of the vehicle, the appellant had implicitly acknowledged the
respondent's legal capacity. The court further relied on the respondent's
CIPC registration documents, filed in reply, which depicted him as the sole
director of Evergreen. The court reasoned:
"It can be accepted that as the sole director and shareholder of Evergreen and
the user of the Motor Vehicle, the Applicant has a direct interest in the Motor
Vehicle... CIPC records are public records, and the Applicant provided sufficient
information for the Respondent to verify the correctness of the averment as
pleaded."
[9] Regarding jurisdiction, the court a quo accepted the respondent's
evidence that a meeting was concluded on 11 July 2022 in Benoni, which
fell within its territorial jurisdiction. On monetary jurisdiction, the court
fell within its territorial jurisdiction. On monetary jurisdiction, the court
focused on the value of the contractual dispute (the invoices for the total
amount of R237 894.43) rather than the value of the motor vehicle itself,
4
despite acknowledging that the vehicle's value exceeded the court's R400
00.
Grounds of Appeal
[10] The appellant's grounds of appeal are essentially threefold; first, that the
court a quo was not empowered to hear an application for the delivery of
movable property in terms of section 29(1)(a) of the Magistrates' Courts
Act 32 of 1944, which limits jurisdiction to action proceedings only, not
motion proceedings. Second, that the Regional Court lacked territorial
jurisdiction as both the motor vehicle and the appellant's place of business
were situated outside its jurisdiction. Third, that the respondent is not the
owner of the motor vehicle and therefore lacked locus standi to bring the
rei vindicatio.
Jurisdictional Challenge: The Respondent's Concession
[11] The respondent conceded that the court a quo lacked jurisdiction on both
territorial and monetary grounds. This concession was properly made.
The motor vehicle was situated at the appellant's premises in Kyalami,
which falls outside the Benoni Regional Court's territorial jurisdiction.
Moreover, the value of the motor vehicle (between R1.2 million and R1.5
million) far exceeded the Regional Court's monetary jurisdiction of R400
000 at the time.
[12] Section 29(1)(a) of the Magistrates' Courts Act 32 of 1944 provides:
"(1) Subject to the provisions of this Act and the National Credit Act, 2005 (Act
No. 34 of 2005), a court in respect of causes of action, shall have jurisdiction in—
(a) 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;"
[13] The amount determined by the Minister at the relevant time was R400
000. The rei vindicatio is a claim for the delivery of property, and the value
of the property itself not the value of any underlying contractual dispute
determines jurisdiction. The court a quo erred in relying on the value of
5
the invoices rather than the value of the motor vehicle. On this basis
alone, the appeal must succeed.
The Respondent's Reliance on Section 87 of the Magistrate’s Court Act
[14] In an effort to salvage the matter, the respondent urged this court to apply
section 87 of the Magistrates' Courts Act, which confers wide powers on a
court of appeal, including the power to "take any other course which may
lead to the just, speedy and as much as may be inexpensive settlement of
the case." The respondent submitted that this court should, despite the
jurisdictional defect, make an appropriate order to vindicate his rights of
ownership under section 25 of the Constitution. Section 25 (1) provides
that, no one may be deprived of property except in terms of a law of
general application.
[15] The appellant countered that the respondent had not filed a cross -appeal
and could not seek to vary the order without having filed a cross- appeal.
[16] The appellant stated as follows: "It was not possible in the present
circumstances to have brought a cross -appeal. How does one notionally
cross-appeal a judgment in one's favour where no amendment to the
order is sought?" This reveals a fundamental misunderstanding of
appellate procedure. A cross-appeal is precisely the mechanism by which
a successful party may seek to vary or amend an order in their favour.
The respondent cannot make his case as he goes along.
Discussion
[17] The rei vindicatio is an action available to an owner of property to recover
it from any person in possession without his consent. The requirements
are well -established: the owner must allege and prove that he is the
owner and that the defendant is in possession of the res at the time of
commencement of proceedings. The onus then shifts to the defendant to
establish a right to retain possession against the owner.
[18] In Chetty v Naidoo
1 it is held that:
1 1974 (3) SA 13 (A) at 20A-C,
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"It is inherent in the nature of ownership that possession of the res should
normally be with the owner, and it follows that no other person may withhold it
from the owner unless he is vested with some right enforceable against the
owner (e.g., a right of retention or a contractual right). The owner, in instituting a
rei vindicatio, need, therefore, do no more than allege and prove 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."
[19] The critical question is whether the respondent discharged the onus of
proving ownership. The evidence establishes the following. The motor
vehicle is registered in the name of Evergreen Classics. The invoices for
the repairs were issued in the name of Evergreen Classics. The
respondent only filed a CIPC certificate in reply (not in the founding
papers) showing he is the sole director of Evergreen. At no stage did the
respondent allege or prove that ownership of the vehicle had been
transferred from Evergreen to himself personally.
[20] The respondent sought to rely on the abstract theory of ownership, citing
Legator McKenna Inc v Shea
2. The abstract theory holds that the validity
of transferring ownership is not affected by whether the underlying
transaction is valid. The requirements for passing ownership are twofold:
first, delivery must take place; second, delivery must be coupled with a
"real agreement" —the intention on the part of the transferor to transfer
ownership and the intention of the transferee to become the owner.
[21] The respondent's reliance on the abstract theory is entirely misplaced for
two reasons. First the argument was not raised in the founding papers
and constitutes a new point on appeal. Raising a new point on appeal is
not outright prohibited if doing so is not prejudicial to the other party.
However, there is another fundamental reason, the respondent has not
However, there is another fundamental reason, the respondent has not
alleged or proved any act of delivery or any real agreement transferring
ownership from Evergreen to himself. There is simply no evidence of a
transfer of ownership.
[22] The respondent's reliance on Chetty v Naidoo is equally unhelpful to his
case. That case affirms that the owner must prove ownership. The
2 [2009] 2 All SA 45 (SCA)
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respondent failed to make any averment establishing a link between
himself and Evergreen. He merely filed a license issued by the traffic
department depicting that the motor vehicle belonged to Evergreen. The
respondent must stand or fall by the averments in his founding affidavit.
He failed to discharge the onus of proving ownership.
[23] The respondent further sought to rely on Foss v Harbottle
3 the well -
known English case establishing the proper plaintiff rule in company law.
The rule provides that where a wrong is allegedly done to a company, the
proper plaintiff to sue is the company itself, not an individual shareholder.
[24] The respondent's invocation of this rule does not assist. The rule in Foss v
Harbottle does not entitle a sole shareholder and director to disregard the
separate juristic personality of the company for his own benefit. The
position is trite and incontrovertible: once a person elects to register a
company, even as a sole shareholder, he is bound to respect the
company's separate legal existence. He cannot, on different occasions,
assert ownership over the company's assets as if they were his own, or
conversely seek to shield those assets behind the corporate veil as it suits
him.
[25] The company, Evergreen Classics, is the registered owner of the motor
vehicle. If any party has a right to vindicate the vehicle, it is Evergreen—
not the respondent in his personal capacity. The respondent's failure to
join Evergreen or to bring the application in the company's name is fatal to
his claim. This is not a derivative action as contemplated in section 165 of
the Companies Act 71 of 2008 4 , which governs statutory derivative
actions allowing shareholders to demand that a company pursue legal
action to protect its interests. No such application was made.
3 (1843) 2 Hare 461,
4 165 (2) A person may serve a demand upon a company to commence or continue legal
proceedings, or take related steps, to protect the legal interests of the company if the person—
(a) is a shareholder or a person entitled to be registered as a shareholder, of the company or of
a related company; (b) is a director or prescribed officer of the company or of a related company;
(c) is a registered trade union that represents employees of the company, or another
representative of employees of the company; or (d) has been granted leave of the court to do so,
which may be granted only if the court is satisfied that it is necessary or expedient to do so to
protect a legal right of that other person.
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[26] The respondent conflates the company's distinct legal personality with his
own persona as an individual. The separate identity of the company must
be maintained and respected, irrespective of the degree of control
exercised by its principal shareholder.
[27] Moreover, even if this court were inclined to consider section 87 mero
motu (as sanctioned by Southern Africa Finance v IDC , where the court
held that in the absence of prejudice, a court should not hesitate to adopt
such a course to arrive at a just decision), the respondent's case is
wanting on more fundamental grounds, namely the question of ownership.
[28] Having considered the evidence and the judgment of the court a quo, it is
concluded that the court a quo misdirected itself in granting the final order.
This court is at large to interfere with the decision of the court a quo.
[29] The powers of this court on appeal are wide. Section 87 of the
Magistrates' Courts Act permits this court to take any course which may
lead to the just, speedy and inexpensive settlement of the case. This is
reinforced by section 19(d) of the Superior Courts Act 10 of 2013, which
provides that a division of the High Court exercising appeal jurisdiction
may "confirm, amend or set aside the decision which is the subject of the
appeal and render any decision which the circumstances may require." As
was stated in Miya v MatlekoSeifert
52023 (1) SA 208 (GJ) at para 71,
these powers are wide enough to enable the appeal court, even if it sets
aside the magistrate's order for want of jurisdiction, to then make the order
itself.
[30] However, in the circumstances of this case, there is no proper basis upon
which this court could substitute an order in favour of the respondent. The
respondent has failed to establish ownership, and the proper owner
(Evergreen) is not before us. To grant any order in favour of the
respondent would be to perpetuate the very confusion between corporate
respondent would be to perpetuate the very confusion between corporate
and personal identity that lies at the heart of this matter. In conclusion the
appeal must succeed. In the result the following order is made:
5 2023 (1) SA 208 (GJ) at para 71,
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ORDER
1. The appeal is upheld with costs, including the costs of counsel, at
Scale B.
2. The order of the court a quo dated 23 November 2023 is set aside and
substituted with the following:
"The application is dismissed with costs."
____________________________
NP MALI
JUDGE OF THE HIGH COURT
I agree
_______________________
NKOENYANE AJ
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Appellant: Adv. B Edwards
And Adv. T. L Smith
Instructed by: LLP Attorneys Inc.
For the respondent: Adv. HP Van Nieuwenhuizen
Instructed by: Gilpin Attorneys Inc.
Date of Hearing: 24 July 2025
Final submission filed: 3 October 2025
Date of judgment: 30 March 2026