REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 2025-159155
(1) REPORTABLE: ND
(2) OF INTERESTTO OTHER JUDGES: I\ 0
(3) REVIS .
bJ~(o6/W
DATE SIGNATURE
In the matter between:
GRANDEUR AUTO (PTY) LTD Applicant
and
WESBANK, A DIVISION OF FIRSTRAND BANK LIMITED Respondent
JUDGMENT
MOTHA,J
Introduction
1) The 2015 Bentley Continental GT, sold for R3 667 434. 7 4, is front and center
in this application . When this motor vehicle began its arduous journey,
Westbank was its titleholder. In its short history, it has been owned by more
than eight people and institutions , as recorded in the NaTIS certificate, and
mostly fraudulently. By hook or by crook, it seems everyone wants a Bentley
Continental GT. Having come full circle, it is currently parked at its first home,
Westbank.
The facts
2) On 12 August 2015, Mr. Sella Joseph Radebe ("Mr. Radebe") applied to the
respondent for financing to purchase a 2015 Bentley Continental GT (subject
vehicle), which the respondent approved. The subject vehicle was brand new
and displayed for sale on the showroom floor of Pearl Automotive (Pty) Ltd,
trading as MG Rover Johannesburg ("the dealership").
3) In terms of the finance transaction, as is customary, the respondent purchased
the subject vehicle from the dealership for on-sale to Mr. Radebe. Pursuant to
a written installment sale agreement, the respondent on-sold the subject vehicle
to Mr. Radebe for R3 667 434 ,7 4, on 12 August 2015.
4) Importantly, under the installment sale agreement, the respondent was
registered as the title holder of the subject vehicle on 31 August 2015 and would
remain the owner until Mr. Radebe had paid the purchase price in full.
5) Consequently, the dealership had the requisite animus transferandi dominii to
transfer ownership of the subject vehicle to the respondent and the respondent
had the requisite animus accipiendi dominii to receive ownership from the
dealership and thereby became the legal owner of the subject vehicle.
6) On the Na TIS certificate, the respondent was reflected as the "Title Holder" and
Radebe as the "Owner". It is worth pointing out that "in terms of section 1 of the
National Road Traffic Act, 93 of 1996, "(lxxiii) "title holder", in relation to a
vehicle, means-
2
(a) the person who has to give permission for the alienation of that
vehicle in terms of a contractual agreement with the owner of such
vehicle; or
(b) the person who has the right to alienate that vehicle in terms of the
common law, and who is registered as such in accordance with the
regulations under section 4; (lxviii)
and
under (xiv) "owner", in relation to a vehicle, means-
(a) the person who has the right to the use and enjoyment of a vehicle
in terms of the common law or a contractual agreement with the title
holder of such vehicle; (b) any person referred to in paragraph (a), for
any period during which such person has failed to return that vehicle to
the title holder in accordance with the contractual agreement referred to
in paragraph (a); or
(c) a motor dealer who is in possession of a vehicle for the purpose of
sale, and who is registered as such in accordance with the regulations
under section 4, and "owned" or any like word has a corresponding
meaning; (xiv)
7) Having taken possession of the vehicle, Mr. Radebe defaulted in payment of
the monthly installments, with the arrears accumulating to the sum of R 179
469,60 during March 2020. The full outstanding debt under the installment sale
agreement was R2 484 040,40.
8) On 19 March 2020, the respondent instituted legal action against Mr. Radebe
for the cancellation of the installment sale agreement, repossession of the
subject vehicle, and damages.
9) In an unexpected turn of events, Mr. Radebe got entangled in the Free State
asbestos corruption scandal case, and his company, Mastertrade 232 (Pty) Ltd,
was alleged to have received R36 483 597,90 of the proceeds of fraudulent
criminal activity.
3
1 O) Following an application by the National Director of Public Prosecutions ("the
NPA") in the Free State High Court against, amongst others, Mr. Radebe for an
order securing and seizing, inter alia, the subject vehicle and for the
appointment of a curator bonis to take possession of the subject vehicle and
preserve it pending the outcome of the criminal trial and asset confiscation
hearing, the court granted the order on 30 September 2020.
11 )Subsequently, Mr. Radebe (along with six other accused) was arrested during
October 2020 by the HAWKS and charged with fraud, corruption and money
laundering. Mr. Radebe is out on bail, and the criminal trial is pending in
Bloemfontein.
12)On 26 April 2021, the respondent obtained a default judgment against Mr.
Rade be from this court, for, amongst others, cancellation of the installment sale
agreement and return of the subject vehicle ("the repo order").
13)On 7 May 2021 , the respondent issued out of this court a warrant of delivery of
goods. On 3 June 2021, the sheriff attempted to execute the warrant of delivery
but could not do so as Mr. Radebe informed the sheriff that he had sold the
subject vehicle to Thami Ndlala.
14)Mr. Radebe had no right to sell the subject vehicle, and he could not validly
transfer legal title/ ownership in the subject vehicle to anyone since the
respondent remained the lawful owner thereof. This sale set in motion several
fraudulent transfers of the vehicle. To avoid prolixity, I will not mention them.
1 S)After the repo order, the respondent struggled to locate the motor vehicle.
Having failed to execute the warrant of delivery of goods, the respondent liaised
with the HAWKS and was informed that the NPA order restraining and seizing
the subject vehicle would be executed with the assistance of the HAWKS and
the South African Police Service ("SAPS").
16)On 1 November 2024, indeed, the sheriff, acting on instructions of the
appointed curator bonis and with the assistance of the HAWKS and SAPS,
appointed curator bonis and with the assistance of the HAWKS and SAPS,
seized and attached the subject vehicle from Peter Mofolo at the applicant's
4
address and handed it over to Mr. Hyman of W J Legal & Collection Services ,
who received possession of the subject vehicle on behalf of the respondent , on
instructions and request of the curator bonis.
17) It is common cause that the subject vehicle was seized by the sheriff , with the
assistance of the HAWKS and SAPS , on instructions of the curator bonis
pursuant to the NPA order, and not by the respondent pursuant to the repo
order .
Issues
18) The essence of the applicant 's case is set forth in paragraphs 24 and 25 of the
founding affidavit , which state:
"In any event, the disposition of the vehicle by the Respondent was unlawful
and even if the Applicant was not the owner, which it is asserted that it is, it has
been spoliated of the vehicle.
The cause of action is based both on a rei vindicatio on the basis that the
Applicant is the owner of the vehicle. It is also based on a spoliation by virtue
of the invalid Warrant of Execution having been executed and the Respondent
obtaining the vehicle that way."
19) Therefore , this court is called upon to examine two legal concepts , namely : rei
vindicatio and mandament van spolie.
Rei vindicatio
20)The principle that an owner cannot be deprived of her property against her will
is well-established in our law. This means that "an owner is entitled to recover
property from any person who retains possession of it without his or her
consent. This rule was considered in Chetty v Naidoo1 where Jansen JA
explained that one of the incidents of ownership is the entitlement of an
1 1974(3) SA 13 (A) at 20B
5
exclusive possession of the res, with the necessary corollary that the owner
may claim his property whenever found, from whomsoever holding it."2
21)This is in accordance with the maxim: "wherever I find my property I assert my
claim to it" (ubi rem mean invenio ibi vindico).
22)It is trite that rei vindicatio is applicable in respect of movables and immovables
and an owner who institutes rei vindicatio to recover his or her property is
required to allege and prove the following :
(a) The owner must adduce undeniable evidence that he or she is the owner
of the thing.
(b) The thing was in possession of the defendant at the commencement of
the action, who possessed it without the consent of the owner.
(c) The thing which is vindicated is still in existence and clearly identifiable.
23)In the absence of an admission of ownership in the pleadings , as is the case
here, the vindicator bears the burden of proving it.
Mandament van spolie
24)As succinctly stated by the authors of the Law of Property textbook3: "The
purpose of the mandament van spolie is to restore unlawfully deprived
possession at once (ante omnia) to the possessor, in order to prevent people
from taking the law into their own hands, to foster respect for the rule of law and
to encourage the establishment and maintenance of a regulated society."4
25) In the matter of Yeko v Qana5, the court held:
2
The law of property Silberberg and Schoeman 's 6th edition page 269.
3 The Law of Property, Silberberg and Schoeman 's 6th Edition,
4Supra at page 326.
5 1973 (4) SA 735 (A) see also Nino Bonino v De Lange 1906 TS 120.
6
"The onus is on respondent to establish (a) that he had free and undisturbed
possession ... (b) that there was illicit deprivation against his consent. .. The
onus is on the applicant for a spoliation order to satisfy the Court, on admitted
or undisputable facts, by the same balance of probabilities as is required in
every civil case, that he was in peaceful and undisturbed possession of the
property."6
26)Referring to the Roman-Dutch scholar, the court in Fredericks and another v
Stellenbosch Divisional Counci/7 held:
"For as Voet, 41 .2, 16, says, the injustice of the possession of the person
despoiled is irrelevant as he is entitled to a spoliation order even if he is a thief
or robber. The fundamental principle of the remedy is that no one is allowed to
take the law into his own hands. All that the spoliatus has to prove, is
possession of a kind which warrants the protection accorded by the remedy,
and that he was unlawfully ousted."8
Submissions and analysis
27)The applicant was represented by the senior and junior counsel. Addressing
the court, both counsel for the applicant submitted that they relied on the
doctrine of estoppel. However, estoppel was not pleaded. Citing the matter of
Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others, 9
counsel referred the court to what Justice Shongwe said:
6 Supra para 736
"It is generally accepted that an owner of movable property is estopped from
asserting his right to his property only where the person who acquired his
property did so because the negligence of the true owner misled him into the
belief that the person from whom he acquired it was the owner and was entitled
to dispose of it. (See Oakland Nominees (Pty) Ltd v Gelria Mining & Investment
Co (Pty) Ltd 1976 (1) SA 441 (A); Electrolux (Pty) Ltd v Khota & another 1961
7
1977 3 SA 113 K" 1978 (C.P.D.)
8 Supra page 117A
9
(2011 (2) SA 508 (SCA); [2011] 3 All SA 173 (SCA)) [201 OJ ZASCA 166; 126/201 O (1 Decemb er 201 O
7
(4) SA 244 (W)). There seems to be no reason why this principle cannot be
applied to immovable property. The possessor raising estoppel must prove that:
(a)There was a representation by the owner, by conduct or otherwise ,
that the person who disposed of his property was the owner or was
entitled to dispose of it;
(b)The representation must have been made negligently in the
circumstances ;
(c)The representation must have been relied upon by the person raising
the estoppel , and
(d)Such person's reliance upon the representation must be the cause
of his detriment."10
28) Upon ventilating the matter with the court , counsel failed to set out where
estoppel was in the pleadings . The high watermark of the submission was that
estoppel was implicit in paragraphs 19 and 20 of the founding affidavit. Nothing
could be further from the truth. These paragraphs read:
"The Court Order against Mr Radebe dates back to the 7th May 2021 and from
May 2021 until the 1st November 2024 Wesbank have allowed the vehicle to
be in the public domain with, one of the consequences , the Applicant having
purchased the vehicle for R1 .6 million.
Wesbank is not the owner of the vehicle . At the hearing of the application legal
argument will be advanced that the Applicant has acquired ownership of the
vehicle and is entitled to vindicate the vehicle from Wesbank ."
29) As the argument continued , counsel submitted that they relied on rei vindicatio
and asserted ownership because Peter Mofolo intended to sell the vehicle to
them. Westbank lost ownership through negligence , so the argument went. This
submission was at odds with the junior counsel's concession that ownership
10 Supra para 19.
8
was contested. The absence of ownership is fatal to any application for rei
vindicatio.
30) The doctrine of estoppel is one of the restrictions on the owner's entitlement to
vindicate his or her property.11 "Although in Roman Dutch law an owner cannot,
as a general rule, be deprived of his or her property without consent, the owner
will nevertheless , in appropriate circumstances , be estopped from vindicating
it, whether it be movable or immovable, when he or she placed it in the hands
of another person in circumstances which may lead third parties to believe that
such other person is in fact
(a) the owner of the thing that has been entrusted to him or her; or
(b) that he or she has been duly authorized to dispose of it on the owner's
behalf."12
31)The following requirements must be met before estoppel can succeed:
"(a) there must be a presentation by the owner, by conduct or otherwise, that
the person who dispose of his or her property was the owner of it was entitled
to dispose of it.
(b) the representation must have been made negligently in the circumstances
(c) the representation must have been relied on by the person raising the
estoppel
(d) his or her reliance on the representation must be the cause of his or her
acting to his or her detriment. "13
32)The applicant's reliance on estoppel is unmeritorious and faces insurmountable
hurdles. Firstly, estoppel was not pleaded. As already traversed, only rei
vindicatio and mandament van spolie were pleaded. Having mentioned these
11 Sup ra Par 273.
12 Supr a page 274.
13 Supr a page 274 .
9
legal concepts by name in the founding affidavit, the applicant did not mention
estoppel. To me, estoppel is a convenient afterthought.
33) On the issue of pleadings, the court in Gelyke Kanse and Others v
Chairperson, Senate of the University of Stellenbosch and Others14held:
"This is not to stump Gelyke Kanse on technical points. It is to insist that a
litigant should stick to the case it has set out in its challenge, and that it does
not ambush its opponent in reply with a new case and new evidence entirely."15
34)There is a plethora of cases on this point, for example: Esau and Others v
Minister of Co-Operative Governance and Traditional Affairs and Others16and
Betlane v Shelly Court17 to name but a few. In this matter, the case for estoppel
is simply not made out.
35) The doctrine of estoppel is not there for the taking. The applicant must plead
that the owner acted negligently by entrusting its property to another person
who subsequently disposed of it to a third party. Further, negligence must be
alleged and proved. To illustrate this point, I can do no better than to refer to
Johaadien v Stanley Porter (Paarl) (Pty) Ltd.18
36)Finally, what is bizarre is that estoppel is a restriction that is raised against, not
by, an owner. In this instance, the applicant argues ownership; hence, it pleaded
and relied on rei vindicatio. Rather strangely, it raises estoppel, which is a
defense to rei vindicatio. On this point alone, the argument of estoppel must
fail.
37)This is not the applicant's first rodeo. In November 2025, the applicant launched
an urgent application, a carbon copy of this one, seeking the return of the
14
[2019] ZACC 38; 2020 (1 ) SA 368 (CC); 2019 (12) BCLR 1479 (CC) .
15 Sup ra pa ra 19.
16
(611 /2020) (2021] ZASCA 9; [2021] 2 All SA 357 (SCA); 2021 (3) SA 593 (SCA) (28 January 2021
17
CC (CCT 14/10) (201 0] ZACC 23; 2011 (1) SA 388 (CC); 2011 (3) BCLR 264 (CC) (24 November 2010)
18 1970(1 )SA 394 (A).
10
Bentley. Paragraphs 25 and 26 of that founding affidavit are mirror images of
paragraphs 24 and 25 of this application (see paragraph 18 supra).
38)For the sake of completeness , paragraphs 25 and 26 are included and read :
"25. In any event, the disposition of the vehicle by the Respondent was unlawful
and even if the Applicant was not the owner, which it is asserted that it is, it has
been spoliated of the vehicle.
26. The cause of action is based both on a rei vindicatio on the basis that the
Applicant is the owner of the vehicle. It is also based on a spoliation by virtue
of the invalid Warrant of Execution having been executed and the Respondent
obtaining the vehicle that way."
39)After receiving a letter from the respondent threatening fire and brimstone if the
urgent application proceeded, the applicant withdrew its application by
agreement in December 2025 . It must have dawned on the applicant that rei
vindicatio did not apply to these facts , let alone mandament van spolie , which
has not been mentioned even in these proceedings .
40)Little wonder the resurrected application is dressed as an estoppel. However,
dressing the application in borrowed robes does not increase its chances of
survival. This application was dead on arrival.
41 )As if all that were not enough , it is common cause that the applicant has
instituted an action against Peter Mofolo. The particulars of claim state :
"11 . When the Defendant concluded the first and second agreements, he knew
he was not the owner of the Bentley and knew that he could never give title to
the Plaintiff
12. The Defendant intentionally misrepresented that he owned the Bentley
when to his knowledge, he was not the owner and intended to defraud the
Plaintiff."
11
42)In my view, the application should be dismissed. Although the applicant is
skating on thin ice, I am not inclined to mark my disapproval of the applicant's
conduct by imposing attorney and client costs. In the result, the application is
dismissed with costs on scale C.
Order
1. The application is dismissed with costs on scale C
--=-
b==-
MP MOTHA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
12
Appearances
For the Applicants
With
Instructed
For the Respondent
Instructed
Date of hearing
Date of Judgement
Adv SS Cohen Sc
Adv N Pama
Larry Marks Attorneys
Adv WG Pretorius
Rossouw Leslie Incorporated
12 May 2026
10 June 2026
13