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M VAN NIEUWENHUIZEN, AJ:
INTRODUCTION
[1] The applicant seeks an order directing the respondent to restore to it
possession of certain industrial manufacturing machinery, alternatively
payment of damages in the amount of R 2 573 110,00 less the amounts
outstanding to the respondent for unpaid storage fees . The relief is
premised on the allegation that the applicant is the owner of the
machinery, alternatively entitled to possession thereof, and that the
respondent is in unlawful possession and/or dispossession of the
machinery that the applicant had allegedly stored at the respondent’s
warehouse, alternatively unlawfully disposed of the machinery.
[2] The applicant is 3Sixty Herbal Health (Pty) Limited, a private company.
The applicant is part of a broader corporate group linked to 3Sixty
Biomedicine and ultimately to the NUMSA Investment Company.
[3] The respondent is Makhulu’s Logistic Services (Pty) Limited , a private
company with limited liability, registered and duly incorporated in terms of
the company laws of the Republic of South Africa with its principal place
of business situated at OR Tambo International Airport. The respondent
conducts business primarily as a freight forwarding and logistics service
provider. The respondent alleges that it is not a warehousing or
commercial storage facility and does not market or operate itself as such.
[4] The respondent opposes the application. It denies that it ever possessed
or controlled the machinery and contends that the machinery was stored
at the premises of a third party , Momentus Trading (Pty) Limited
(“Momentus”), pursuant to an agreement concluded between the parties.
The respondent further disputes that it assumed responsibility for the
safekeeping of the machinery and alleges that the applicant ’s persistent
failure to pay storage charges and to furnish customs documentation
ultimately resulted in the machinery either being disposed of by Momentus
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or confiscated by the South African Revenue Services ( “SARS”). The
respondent states that it is unable to determine which of these events
occurred.
THE APPLICANT’S CASE
[5] The applicant's case is advanced primarily through the founding affidavit
of Mr Mbatha. Mr Mbatha candidly acknowledges that he was not
employed by the applicant during the entire period relevant to the dispute.
His account is therefore , to a considerable extent , reconstructed from
documents and information obtained from others. No confirmatory
affidavits have been filed by the persons who allegedly participated in the
negotiations or concluded the alleged oral agreement.
[6] The applicant alleges, in broad terms, that an oral agreement was
concluded in terms of which the respondent undertook to store the
machinery safely on behalf of the applicant and that the applicant would
pay the respondent monthly rental of R21 645,64 for the storage of the
machinery. However, no material terms of the agreement are pleaded.
The founding affidavit does not identify when the agreement was
concluded, who represented the respective parties, nor does it set out the
essential contractual obligations allegedly assumed by the respondent.
[7] The applicant further relies upon a facility agreement concluded with the
National Empowerment Fund (“NEF”). However, the facility agreement
attached to the founding affidavit ( “FA1”) relied on by the applicant is
unsigned by the NEF, incomplete and as alleged by the respondent is
replete with unfulfilled suspensive conditions. It names Troy
Pharmaceuticals (Pty) Limited as purchaser, not the applicant.
[8] Clause 11 of Annexure “FA1” expressly states:
“Notwithstanding delivery of the Assets to the Purchaser, ownership of the
assets shall vest in and remain with the Seller and shall not pass to the
Purchaser until the Facility Outstandings has been paid in full. ” [Court’s
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underlining]
[9] The applicant's own Annexure “FA2” confirms that as of February 2024,
it owed the NEF R4 418 618,70. This constitutes a clear
acknowledgement that ownership has not passed.
[10] The assertion in the founding affidavit that ownership passed “upon
payment of the invoice from Megaxus” is contradicted by the contents of
“FA1”, which imposes a retention of title clause in favour of the NEF. In
particular clauses 11 and 12.5 makes it clear that ownership does not
pass until the purchase price had been paid in full and the Purchaser is
furthermore deemed to have re -ceded all rights, title and interest in the
Assets to the Seller.
[11] Moreover, clause 5 of the facility agreement requires the provision of
guarantees and security as a condition precedent . The applicant makes
no allegation that such condition precedent has been fulfilled, nor does it
attach any documentation proving that such conditions were fulfilled.
[12] The applicant also fails to annex a signed copy of the agreement, any
proof of payment of the capital acquisition costs of the machinery or
supporting schedules that would verify the identity and delivery of the
goods, despite the fact that the onus is on a party alleging payment to
prove this.1 No bill of lading, proof of custom clearance, or delivery notes
are annexed.
THE RESPONDENT’S VERSION
[13] The respondent’s answering affidavit is deposed to by Mr Phekga
Ramalepe (Managing Director of the respondent). The contents of the
answering affidavit is confirmed by Mr Relebogile Ramalepe (Operations
1 Pillay v Krishna 1946 AD 946
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Manager of the respondent) insofar as it relates to him and/or insofar as
it relates to the business dealings between the respondent and the
applicant.
[14] The respondent’s version is that it never agreed to store or retain
possession of the machinery. Instead, it agreed to source an appropriate
warehouse facility. Pursuant to that arrangement, the machinery was
transported by a third party to the premises of Momentus as arranged by
the applicant, where it remained under the custody and control of that
entity.
[15] According to the respondent, it was expressly agreed, alternatively
implied, further alternatively tacitly agreed, that the applicant would bear
all risk associated with the storage of the machinery, that the respondent
would only pay storage charges to Momentus if the applicant remained
up to date with the account and that the respondent would not itself
become responsible for the custody or safekeeping of the machinery. The
respondent further alleges that the applicant persistently failed to pay the
agreed storage charges. The amount owing is substantial. Numerous
demands were addressed to the applicant. Payment arrangements were
concluded but repeatedly breached. These allegations are not disputed
by the applicant.
[16] The respondent further states that the applicant was repeatedly requested
to furnish customs documentation required by SARS in anticipation of an
audit at the Momentus warehouse. It is alleged that the applicant was
warned on several occasions that failure to furnish the required
documentation could result in the machinery being confiscated by SARS.
The respondent further states that Momentus had reserved the right to
dispose of the machinery to recover outstanding storage charges.
EVALUATION
[17] The applicant bears the onus of establishing its entitlement to the relief
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sought.
[18] The first and fundamentally difficulty confronting the applicant concerns
ownership. The facility agreement upon which the applicant relies
expressly provides that ownership of the machinery remained vested in
the NEF until repayment in full. The applicant admits that a substantial
portion of the indebtedness remained outstanding. On the papers before
this Court, the applicant has therefore failed to establish ownership of the
machinery.
[19] In Chetty v Naidoo 2 the Appellate Division stated “The fundamental
principle is that possession must yield to ownership. It is not for the
defendant to prove anything until the plaintiff has established title”.3
[20] Equally problematic is the applicant's inability to establish that the
respondent ever possessed the machinery. On the respondent's
uncontested version, the machinery remained throughout under the
custody of Momentus. The respondent denies ever exercising physical
possession or control over the machinery . A vindicatory claim cannot
ordinarily succeed against a party who is not in possession of the property
sought to be recovered.
[21] The applicant’s contractual case fares no better. The alleged oral
agreement is pleaded in the vaguest possible terms. None of the essential
terms are identified. The founding affidavit does not establish the
contractual obligations allegedly undertaken by the respondent. The
applicant's reliance upon an oral agreement is therefore wholly
inadequate.
2 Chetty v Naidoo 1974 (3) SA 13 (A) at 20B-D. See also Goudini Chrome (Pty) Ltd v MCC
Contracts (Pty) Ltd 1993 (1) SA 779 (A) at 782A
3 Ibid at 20G per Jansen JA
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[22] The evidential difficulties are compounded by the fact that much of Mr
Mbatha’s evidence constitutes hearsay. His own affidavit acknowledges
that he lacked personal involvement during substantial portions of the
relevant period. The failure to file confirmatory affidavits from those who
allegedly participated in the negotiations or had firsthand knowledge of
the alleged oral agreement and events materially weakens the applicant's
case. Mr Mbatha was not involved in either the conclusion of the
agreement or in the transportation of the single machine and accessories
(as alleged by the respondent) to Momentus. In the absence of primary
facts, the alleged secondary facts are merely unsupported conclusions of
law.4
[23] The respondent’s version by contrast, is detailed, internally consistent and
based upon direct personal knowledge. It explains the role performed by
the respondent, the arrangements with Momentus, the repeated default
in payment, the repeated warnings issued regarding custom s
documentation, the payment plan proposed and breached and the events
preceding the loss of access to the warehouse after Momentus entered
business rescue.
[24] The applicant’s founding affidavit omits any meaningful reference to its
prolonged default in payment, the repeated demands for payment, the
agreed payment plan, the repeated requests for customs documentation,
or the warnings allegedly given by the respondent. These omissions
concern matters central to the dispute and materially affect the reliability
of the applicant's version.
[25] At the very least, the application gives rise to numerous genuine and bona
fide disputes of fact concerning the existence and terms of the alleged
agreement, the identity of the party who possessed the machinery, the
4 Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2)
SA 279 (T) at 324F-G. See also Wightman t/a JW Construction v Headfour (Pty) Ltd 2007 (2)
SA 128 (C)
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allocation of risk, the effect of the applicant's non -payment and the
circumstances of the machinery’s whereabouts. These disputes cannot
properly be resolved on affidavit. Applying the well-established approach
to factual disputes in motion proceedings, the respondent’s version must
prevail where it is neither farfetched, nor untenable on factual disputes in
motion proceedings.5
[26] There is a further obstacle to the relief sought. On the respondent’s
version, Momentus retained physical possession and custody of the
machinery at all relevant times. The respondent further alleges that
Momentus reserved the right to dispose of the machi nery in the event of
continued non -payment and that it is uncertain whether the machinery
was ultimately sold by Momentus or confiscated by SARS.
[27] Momentus therefore plainly has a direct and substantial interest in the
determination of the issues before this Court. Any finding concerning the
alleged disposal of the machinery or liability arising therefrom could
directly affect its legal interests. Its non-joinder is material.
[28] Likewise, if the machinery was confiscated by SARS pursuant to customs
enforcement proceedings, SARS would similarly possess a direct and
substantial interest in any order concerning possession or ownership of
the machinery. The applicant elected not to jo in either Momentus or
SARS, notwithstanding the respondent’s version that either entity may
ultimately have dealt with the machinery. The absence of these parties
provides a further reason why the relief sought cannot be granted.
CONCLUSION
[29] The applicant has failed to establish ownership of the machinery. It has
further failed to establish that the respondent possessed or controlled the
5 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635D
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machinery or that the applicant unlawfully disposed thereof.
[30] The applicant’s contractual case is inadequately pleaded and largely
supported by hearsay evidence. The respondent’s version is supported
by direct evidence and gives rise to genuine disputes of fact, which cannot
be resolved in favour of the applicant on motion proceedings.
Non-joinder
[31] In addition, the failure to join Momentus and SARS, constitutes a material
non-joinder of parties having a direct and substantial interest in the relief
sought.6
[32] There is no causal link between the respondent and the loss – even if the
machinery has disappeared, the respondent’s evidence is that:
[32.1] Momentus retained custody, access was later prevented
following business rescue, the machinery may have been sold
by Momentus; alternatively
[32.2] SARS may have confiscated it.
[33] On this version the respondent, neither possessed, nor disposed of the
machinery.
Applicant assumed the contractual risk
[34] The respondent alleges express, alternatively implied, further alternatively
tacit terms that:
[34.1] storage would be provided by a third party warehouse;
6 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A)
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[34.2] all risk remained with the applicant;
[34.3] respondent was not obliged to pay storage if the applicant
defaulted;
[34.4] the warehouse could dispose of the goods in the event of
continued non-payment.
[35] Those allegations are supported by detailed factual averments absent
from the founding affidavit.
Damages claim
[36] If damages are sought in the alternative, the applicant must establish a
legal duty owed by the respondent, breach, wrongful disposal, causation
and quantum. None of these elements is established.
[37] The respondent’s evidence suggests that it acted merely as an
intermediary or logistics co -ordinator, while custody remained with
Momentus. If that is accepted, the respondent would not have been a
bailee with physical possession of the machinery. That distinction is likely
to be central both to the vindicatory claim and to any alleged contractual
duty to safeguard the machinery.
[38] Overall, the respondent’s version appears considerably more detailed,
fact specific, and supported by direct evidence than the applicant’s
founding papers, which weighs significantly in the application of the
Plascon-Evans Rule to any disputed facts.
[39] The applicant has accordingly failed to make out a proper case for the
relief sought.
ORDER
[40] In the result I make the following order:
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HEARD ON: 16 February 2026
DATE OF JUDGMENT: 3 July 2026
FOR APPLICANT: V Mndebele
INSTRUCTED BY:
Shandu Attorneys Inc.
Email: Sijabonga@shanduattorneys.co.za /
fezile@shanduattorneys.co.za
Ref: C01004
FOR RESPONDENT: Adv S Davies
INSTRUCTED BY:
Jenkins Incorporated Attorneys
Emal: izelle@jenkinsinc.co.za /
info@jenkins.co.za
Ref: I M Jenkins/KVM/MR0008