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[2026] ZAGPJHC 1000
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Eswatini Oils and Mills (Pty) Ltd v Vusis Farm (Pty) Ltd and Another (Reasons) (2026/020102) [2026] ZAGPJHC 1000 (7 September 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 2026-020102
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
7
September 2026
In
the matter between:
ESWATINI
OILS AND MILLS (PTY) LTD
Applicant
AND
VUSI’S
FARM (PTY)
LTD
First Respondent
STEAM
HOUSE ENGINEERING (PTY) LTD
Second Respondent
REASONS
MIA,
J
Introduction
[1]
This urgent application concerns two industrial boilers purchased by
the applicant from the first respondent. Both respondents
opposed the
application. After hearing argument, I indicated that the applicant
was entitled to the relief in the draft order,
without a separate
declarator of ownership, and directed that a revised order be
submitted. These are my reasons.
[2]
The central question is whether ownership of the boilers passed to
the applicant before the first respondent purported
to sell the
12.5-ton boiler to the second respondent. The applicant relies
principally on constructive delivery by
traditio longa manu
and, in the alternative, on
constitutum possessorium
. I
consider the submissions on urgency first.
Background
[3]
It is common cause that, during July 2025, the applicant purchased
two industrial boilers from the first respondent: a
10-ton boiler and
a 12.5-ton boiler. The purchase price was paid in full to the first
applicant. Due their size, the boilers remained
at the first
respondent's premises pending dismantling and removal. In December
2025, before removal had been completed, the first
respondent
purported to sell the 12.5-ton boiler to the second respondent, who
dismantled and removed it.
[4]
In response to the applicant's demand for delivery of the boilers,
the first respondent contended that it had cancelled
the agreement
because the applicant failed to remove them within the agreed period.
It tendered repayment of the purchase price.
Issues
[5]
The issues are whether the application is urgent; whether the
applicant is properly before the Court; whether ownership
passed to
the applicant; whether the first respondent's purported cancellation
and tender of repayment defeat the vindicatory claim;
and whether
final relief may be granted on the papers.
Urgency
[6]
The applicant knew by mid-December 2025, or at the latest early
January 2026, that the first respondent disputed its entitlement
to
remove the boilers and had disposed of at least one of them. The
application was launched on 2 February 2026. The intervening
delay is
not insignificant and required explanation. The applicant submits it
attempted to resolve the difference with the first
respondent before
approaching this court.
[7]
On 3 December 2025 Mr Bruce Avis, acting for the first respondent,
granted the applicant access to the boilers, identified them
and
authorised dismantling and removal.
[1]
Dismantling proceeded from 8 to 12 December 2025 with the first
respondent's knowledge and without objection. On 11 December 2025
the
first respondent offered to 'buy back' one boiler for R150,000.
[2]
Thereafter, it permitted the second respondent to dismantle and
remove the 12.5-ton boiler. The interference with the applicant's
asserted proprietary rights was continuing, and there was a real risk
of further alienation or dissipation of the machinery and
its
component parts. In those circumstances, the applicant could not
obtain substantial redress on the ordinary timetable. Notwithstanding
the delay, I am satisfied that the matter warranted urgent
determination.
Applicant’s
citation and security for costs
[8]
The applicant is a foreign company and, when security for costs was
demanded, it offered R200,000. After that offer was
rejected, it
deposited R350,000 into its attorney's trust account. The
respondents' concern regarding security was therefore addressed
and
did not preclude determination of the application.
[9]
The respondents contended that the applicant was not properly before
the Court because the founding papers described it
as a company
registered under South African law, whereas it is registered address
in Eswatini. The applicant explained that the
description was a bona
fide error and sought to correct it under rule 28. Its name and
identity remained unchanged and were known
to all parties. The
correction concerns only its description; it does not substitute a
different litigant. No prejudice was demonstrated.
The objection
accordingly cannot be sustained.
Ownership
[10]
The first respondent denied that it intended to give the applicant
unimpeded control of the boilers. It maintained that
the applicant
could dismantle and remove them only with its permission and that
ownership would remain with it until physical removal.
This it says
is reinforced by the insurance it maintained over the boilers. In
paragraph 67 of its answering affidavit it stated:
“
it was not
discussed nor was it agreed that the applicant would be entitled to
exercise physical control over the sold items...
Any arrangements
that were made in relation thereto would have to occur [through me]
as the representative of the first respondent.”
[11]
The first respondent further averred that, without its permission,
the applicant was not entitled to access the boilers
and that the
boilers remained its property until they were removed from the
premises.
[12]
Those assertions must be evaluated against the parties' conduct. The
first respondent accepted the full purchase price,
identified the
boilers, admitted the applicant and its contractors to the premises,
and allowed dismantling to proceed. Its right
to supervise
dismantling so as to prevent damage to its premises is not
inconsistent with a transfer of ownership of the boilers
themselves.
Legal
principles
[13]
The
requirements of the
rei
vindicatio
are settled. The applicant must establish ownership and possession by
the respondent. Once those facts are proved, the possessor
must
establish a right to retain the property.
[3]
Ownership of movable property passes upon delivery pursuant to a
valid real agreement, accompanied by the parties' intention to
transfer and acquire ownership.
[4]
[14]
Delivery need not take the form of physical handover. In the case of
traditio longa manu
, delivery is effected when the transferor
identifies the thing and places it at the transferee's disposal, with
the intention that
the transferee assume control.
Constitutum
possessorium
applies where the transferor retains physical
custody but thereafter holds on behalf of the transferee.
[15]
The material facts are that the boilers were specifically identified;
the applicant was given access to the premises;
and dismantling
commenced with the first respondent's knowledge and consent. By
exercising physical control over the boilers in
the course of
dismantling them for removal, the applicant acted in a manner
consistent with ownership.
[16]
Because
final relief is sought in motion proceedings, the factual enquiry is
governed by the rule in
Plascon-Evans
.
Final relief may be granted on the facts admitted by the respondent
together with the facts alleged by the applicant, unless the
respondent's denial is not genuine or is so untenable that it may be
rejected on the papers.
[5]
[17]
Even on the first respondent's version, its permission was required
only for access and dismantling. That permission
was in fact given,
and dismantling commenced. In the context of large industrial
machinery incapable of immediate manual delivery,
those acts are
significant: they placed the identified boilers at the applicant's
disposal and enabled it to assume effective control.
[18]
The objective conduct of the parties therefore satisfies the
requirements of
traditio longa manu
. The later offer to 'buy
back' a boiler provides further support for the conclusion that the
first respondent had already treated
the boiler as belonging to the
applicant.
[19]
It is therefore unnecessary to decide whether the facts also satisfy
the more exacting requirements of
constitutum possessorium
.
The applicant succeeds on the primary basis on which it relies.
[20]
Ownership of both boilers accordingly passed to the applicant when
constructive delivery occurred.
[21]
Once ownership had passed, the first respondent was divested of
dominium
and could not thereafter transfer ownership to
another, the second respondent in this case.
[22]
The maxim
nemo plus iuris ad alium transferre potest quam ipse
habet
applies: no person can transfer more rights than that
person has. The first respondent accepted the payment for the boilers
and
placed them at the applicant’s disposal. Divested of
ownership, the first respondent's subsequent sale to the second
respondent
was therefore incapable of transferring ownership as
against the applicant.
[23]
The first respondent's purported cancellation and tender of repayment
do not answer the vindicatory claim. Once ownership
has passed,
cancellation of the underlying agreement may give rise to personal
restitutionary claims, but it does not, without
more, reverse the
transfer of ownership.
[24]
The applicant's right is a real right. A tender to repay the purchase
price is, at best, directed at a personal claim
and cannot defeat the
applicant's right to recover its property.
[25]
The second respondent relied on its alleged good faith. Good faith
alone does not confer ownership where the seller lacked
title, unless
a recognised exception applies. No such exception was established.
The second respondent therefore has no right to
retain the 12.5-ton
boiler against the applicant.
[26]
The respondents' denials do not displace the objective and
substantially common-cause facts concerning payment, which
the first
respondent received. The tender to repay demonstrates the payment
made. The boilers are identifiable. The applicant had
access as it
entered the premises to assess what it required to do to remove the
boilers and has commenced dismantling. Those facts
establish
constructive delivery and the requisite intention. The legal
conclusion of ownership follows from them.
[27]
The property is sufficiently identified for vindicatory relief. The
two boilers were distinguished by capacity, and the
12.5-ton boiler
removed by the second respondent is the boiler claimed from it. The
10-ton boiler remains at the first respondent's
premises.
[28]
I accordingly conclude that ownership passed to the applicant by
traditio longa manu
. Following from that conclusion, the first
respondent's later sale did not transfer ownership to the second
respondent. The tendered
repayment is not a defence to vindication.
The applicant is entitled to recover both boilers without a separate
declaratory order.
[29]
The usual costs order that costs should follow the result is
applicable. Although punitive costs were sought, the circumstances
do
not justify such an order. Costs on the party-and-party scale, Scale
B, are appropriate.
Order
[30]
For the reasons above the following order is made:
1. The applicant's
non-compliance with the forms, service requirements and time limits
prescribed by the Uniform Rules of
Court is condoned, and the
application is heard as one of urgency.
2. The first
respondent is directed forthwith to permit the applicant access to
its premises at Plot 5[…], W[…]
E[…], O[…],
C[…], to take possession of the 10-ton boiler.
3. If the first
respondent fails to comply with paragraph 2 within 48 hours after
service of this order, the Sheriff of the
High Court is authorised,
with the assistance of the South African Police Service if required,
to:
3.1. enter the
first respondent's premises;
3.2. locate and
identify the 10-ton boiler and all its component parts;
3.3. dismantle, if
necessary, and attach the 10-ton boiler and all its component parts;
and
3.4. deliver the
boiler and its component parts into the applicant's possession.
4. The second respondent
is directed forthwith to restore possession of the 12.5-ton boiler,
together with all its component parts,
to the applicant.
5.The respondents are
ordered to pay the costs of the application on Scale B.
S
C MIA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Appearances:
On
behalf of the applicant
:
Adv E Ahmed
:
[email protected]
Instructed
by
: Essy Attorneys
[email protected]
On
behalf of the 1
st
respondent
: Adv D. Vetten
[email protected]
Instructed
by
:
VD Merwe Berg Attorneys
[email protected]
On
behalf of the 2
nd
respondent :
Adv C. Gibson
[email protected]
Instructed
by
:
Senekal Simmonds Inc
[email protected]
Date
of hearing
: 10 February 2026
Date
of judgment
: 7 September 2026
[1]
Record, Founding Affidavit, paras 33–34.
[2]
Record, WhatsApp record, annexure E.
[3]
Chetty
v Naidoo
1974 (3) SA 13
(A) at 20B–D.
[4]
Groenewald
v Van der Merwe
1917 AD 233
[5]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).