Maringa Boerdery (Pty) Ltd and another v JS Timbers (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mashile J
• Judgment Date: 14 April 2023
• Docket Number: 3523/2022
• Hearing Date: 14 April 2023
• Court: Mpumalanga Division, Mbombela

Mashile J:

[1]

This is an application founded on rei vindicatio. It is for the return of certain movable properties ("movables") sold to the Respondent ("Timbers") on 11 January 2022 by either the First Applicant ("Maringa)" or the Second Applicant ("Enslin"). Or both. I will refer to Maringa and Enslin as the Applicants where the context so requires. The sale was initially oral but was later reduced to writing. The Applicants subsequently cancelled the sale agreement ("the agreement") due to non-payment by Timbers.

[2]

The conclusion of the agreement by the parties is not contested nor are the movables that were sold. By the time this matter served before this Court on 13 April 2023, of the thirteen movables that were initially claimed only the return of one of them, the Agrico 2 tower centre pivot ("the Pivot"), remained in dispute. Ownership of the thirteen movables having been resolved and returned to the Applicants, the dispute concerns the Pivot referred to supra.

[3]

The facts of this matter are in fact common cause. For that reason, the need to delve into the facts beyond what I have described above, as this Court would under a different set of circumstances ordinarily do, does not exist. The core of the defence of Timbers is that there are disputes of fact, which the Applicants should have foreseen whose resolution cannot be accomplished on the parties' papers. To the extent that the Applicants did not deal with this aspect, argued Timbers, the matter cannot be referred for oral evidence but ought to be dismissed with costs on the attorney client scale.

[4]

Tersely, while the Applicants claim ownership of the Pivot, Timbers asserts that the Pivot belongs to another party. This contention is put forward in circumstances where it is not immediately decipherable from the papers who the owner is other than the Applicants. Moreover, although Timbers was able to exhibit an invoice indicating the amount for which the Pivot was sold and proof of payment, it could not disclose the name of the purchaser. Additionally, the papers of Timbers are silent on where the Pivot is and

2023 JDR 1396 p3

Mashile J

it was not forthcoming during argument in Court with its whereabouts. Timbers could only go as far as making an allegation of the existence of an adverse claim by another party.

[5]

Conversely, the Applicants are steadfast that insofar as they are concerned, they have satisfied the requirements of the remedy under which they seek return of the Pivot, rei vindicatio. For a party to succeed with rei vindicatio, they say, it needs to demonstrate ownership of the property claimed and that it is in the possession of the party from which it is claimed. They purchased the Pivot from an entity known as HJC Multi Services (Pty) Ltd ("HJC"). To that end, they have attached an invoice generated by HJC and proof of payment in respect thereof. The Applicants point out that...