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Question 1

Issue
[1] This matter concerns the protection of ownership through rei vindicatio. Mr
Mazibuko sought a relief, that is, the return of the 1957 Ferrari 335 S Spider
Scoglietti by means of rei vindicatio from Mr Ngubane. Mr Mazibuko avers that he is
still the owner of the vehicle and demands that Mr Ngubane return the vehicle to him.
The principal issue I am called upon to determine is whether Mr Mazibuko is entitled
to raise this action against Mr Ngubane and if so, whether he has a chance at
successfully doing so.
Relevant Law
[2] There are a number of remedies that protect ownership. These remedies are:
real remedies that restore physical control of ones property, delictual remedies
where the owner has suffered financial harm and lastly, unjustified enrichment which
provide for the payment of compensation for unjustified enrichment 1. There are
mainly two types of real remedies, a) the rei vindicatio and, b) actio negatoria. The
particular remedy of concern in this instance is the real remedy of rei vindicatio. Rei
vindicatio is an action that may be instituted by an owner against anyone who
controls their property without their consent2. The general rule of this action is that no
one may be deprived of their property against their will: the so called nemo plus iuris
potest quam ipse habet3 rule. This principle was reiterated in Chetty v Naidoo4
where Jansen JA explained that one of the incidents of ownership is the entitlement
of exclusive possession of the res... The maxim ubi ream meam invenio, ibi vindico
is the crux of this action; as Mostert and Pope put it, where my property is found, I
can vindicate it5. Another point of relevance is the nemo plus iuris rule it is a basic
principle of transfer of ownership, namely that a person cannot transfer more rights
than he has6. Vindicatory action may be instituted against movables and immovables
(by means of an eviction order) as shown in Bester NO and others v Schmidt
Bou Ontwikkelings7. However, in Mlambo v Fourie8, the court confusingly
1 Mostert and Pope (eds): The Principles of Property Law in South Africa p. 215
2 Miss Starosta (Lecture Notes): Property Law Notes p. 1
3 Silberberg and Schoemans Badenhorst: The Law of Property 2003 4th ed p. 223
4 1974 (3) SA 13 (A)
5 Supra 1 p. 217
6 Supra 1 p. 217
7 2013 (1) 125 (SCA)
8 1964 (3) SA 350 (T)
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awarded damages where M had instituted rei vindicatio F. I criticise this decision
because rei vindicatio is a real remedy, not a delictual one.
[3] In Chettys case9, Chetty brought a rei vindicatio against Naidoo in respect of
property occupied by Naidoo, who claimed but could not prove that she had brought
the property. The case sets out the following rules:

the owner need not aver that the defendant is in unlawful control of his
property.
how the owner characterizes the defendants control is immaterial.
the burden is on the defendant to prove a right.
if the owner concedes any right to the defendant, he must show that right has
been terminated if he still wishes to succeed.

[4] An owner who wishes to institute the rei vindicatio must allege and prove the
following three elements10:
a) that he or she is the owner of the thing in question.
b) that the thing in question still exists and is identifiable.
c) that the thing being vindicated is in the physical control of the defendant.
I now turn to a more detailed discussion of the said elements:
a) The owner must prove that he or she is the owner of the thing in question;
It is the most important element of vindicatory action that the owner must prove, at
least on a preponderance of probabilities that he or she is the owner of the thing in
question. The nature of proof differs according to the circumstances of each case
and the type of property being vindicated, for example if it is a house then a title
deed shall suffice and if it is a car then registration papers are enough to establish
prima facie proof of ownership. In Grosvenor Motors (Potchefstroom) Ltd v
Douglas11 the court supported this principle when it held that as the respondent had
proved that he was the owner of the car, his vindicatory action could be successful.
This principle was once again stressed in Ebrahim v Deputy Sherrif12 where the
court held that the test whether the claimant has discharged the onus of proving his
ownership to movable property which is not in his possession is whether in the
result, the probabilities are balanced in his favour.
b) The thing in question must still exist and be identifiable;
The reason why an owner institutes vindicatory action is to regain physical control of
his property. It would therefore be illogical to raise vindicatory action in respect of
property that no longer exists or has been consumed, alienated or destroyed, the
9 Supra 4
10 Supra 3 p. 226
11 1956 SA (A)
12 1961 (D)
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appropriate remedy in this regard would be a delictual claim for damages. Moreover,
once property has lost its original form either through accession, mixing and fusing,
then the owner can no longer use the rei vindicatio.
c) The thing must be in the physical control of the defendant;
Logically speaking, a person against whom vindicatory action is being raised must
be in a position to carry out the order of return if the action succeeds. It is therefore
of paramount importance that the defendant be in physical control of the property at
the time the action is instituted. In Machaka v Mosala13 the court developed a
principle it is not for the applicant as owner to prove that possession of the car by the
respondent is unlawfulin principle, the onus rests on the respondent to prove that
his continued possession of the car is lawful.
[5]

The defendant can raise the following defences against the rei vindicatio:

a) the defendant can allege that the claimant is no longer the owner of the thing. In
Concur Construction (Cape) (Pty) Ltd v Santam Bank Ltd14 the court held that
in some instances it might be necessary to prove the owners intention to relinquish
ownership.
b) that the thing has been destroyed or alienated.
c) that the defendants possession is, in fact lawful.
d) that the defendant was no longer in physical control of the property at the time the
action was instituted.
According to FNB v Perry15, good faith is no a defence to rei vindicatio, hence even
if the defendants is under the impression that their possession is bona fide the owner
may still vindicate the thing from them.
Application
[6] It is necessary to stress that Jabulani does not own the vehicle in question, he
was merely in possession of the car and was instructed to return the car after
graduation. Now in this instance, the strict rule of transfer of ownership applies; Jabulani cannot transfer more rights of ownership unto another, especially since he
himself is not legally vested with this right.
[7] I now proceed to the first element of rei vindicatio, it is common cause that this
vehicle was sold to Mr Ngubane without Mr Mazibukos knowledge. It naturally
follows that since Mr Mazibuko was unaware of this sale and transfer of ownership,
he cannot be said to have possessed an intention to transfer ownership of the
vehicle. The law, as I conceive it to be, is that Mr Mazibuko is therefore still the
owner of the Ferrari.
13 2006 (OPD)
14 1993 (3) SA 930 (AD).
15 2001 (3) SA (SCA)
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[8] With regards to the second prerequisite, it is not in dispute that the thing being
vindicated still exists and that it is clearly identifiable. The car is not a consumable
good, nor has it been dismantled or damaged beyond repair. I think it is therefore
safe to conclude that Mr Mazibuko has passed the second hurdle. Moving on to the
third and final prerequisite.
[9] It is stated in the facts that immediately after purchasing the Ferrari, Mr
Ngubane sold the car to one Mrs Van Rooyen who purchased the car. It is not
necessary to go to any further details since it has already been established that Mr
Ngubane is no longer in physical possession of the said vehicle. How then can Mr
Ngubane be ordered to return a vehicle that is no longer in his physical control? Let
alone one that he no longer owns? Clearly it cannot be so. I hold that the third
element of rei vindicatio has not been satisfied by Mr Mazibuko.
Conclusion
[10] Since it is a trite requirement that all three elements of vindicatory action must
present concurrently so as to ensure a successful outcome for the owner, the
conclusion is inescapable that Mr Mazibukos chances of successfully raising this
action are slim. The application will not succeed.

Question 2
Issue
[1] The sole issue in this instance is whether estoppel, as a limitation to the rei
vindication shall bar Mr Mazibukos vindicatory action against Mrs Van Rooyen.
Relevant Law
[2] One of the restrictions of the owners entitlement to vindicate his/her property is
based on the Doctrine of Estoppel16. As a limitation on the use of rei vindicatio,
estoppel acts to bar vindicatory action. According to the doctrine, ownership of the
person instituting the vindicatory action is not disputed and essentially remains in
place, but the owner is unable to regain possession of the property for the duration of
the estoppel. Simply put, a successful defence of estoppel suspends the owners
right to vindicate his property. At first, estoppel case law dealt mostly with movable
property, however in AGS of South Africa v Capes17 it was confirmed that
estoppel can apply to immovable property as well.
[3] Estoppel acts as a defence to vindicatory action where the owner of the
property has placed it in the hands of another person in the circumstances which
may lead third parties to mistakenly believe that such other person is in fact the

16 Supra 3 p. 236
17 1978 (4) SA 485 (CC)
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owner of the thing that has been entrusted to him or he/she has been duly
authorised to dispose of it on the owners behalf 18.
[4] The following requirements were set out as follows in Oakland Nominees v
Gelria Mining and Investment Co.19 and Quentys Motors (Pty) Ltd v
Standard Credit Corporation Ltd20:
a) The owner must create an impression that the intention is to transfer
ownership to the controller or that the controller is empowered to transfer
ownership on behalf of the owner.
b) The misrepresentation must be made intentionally or negligently (fault).
c) The person raising the estoppel must have relied on this misrepresentation.
d) The action taken because of the misrepresentation must have been to the
defendants detriment.
I now turn to a more detailed discussion of each of these elements.
[5]
With regard to a), the question of when an owners conduct will amount to a
misrepresentation that the person who disposed of his/her property was the owner of
it or was entitled to dispose of it, it has been held in Electrolux (Pty) Ltd v Khota21
that a) the mere entrusting of control/ possession is insufficient it must be entrusted
with indicators of ownership or entitlement of disposal, and b) if that conduct is not
such as would in the eyes of a reasonable person, in the same position as the
respondent, constitute a representation that the possessor was the owner of, or
entitled to dispose of the articles, thenno estoppel could arise. But if such conduct
does beget that representation, then the next enquiry would logically be whether the
respondent relied upon, or was misled by, that representation in buying the articles.
[6]
With regard to b), it now seems that the owner, as a general rule must have
acted negligently when he/she entrusted his property to another person who
subsequently disposed of it to a third party. The question is whether a reasonably
prudent person would, in those circumstances have foreseen harm and guarded
against it. Furthermore, in Quentys case, the owner placed his vehicle in the
possession of the dealer with signs attached that indicating that it was for sale. The
dealer displayed this vehicle among the other stock in trade. The court took the view
that the owner should have foreseen that ordinary members of the public would be
misled into thinking that the dealer was authorised to sell the vehicle. Consequently,
the owner had acted negligently by not taking steps to prevent the
misrepresentation. Also, in Johaadien v Stanley Porter (Paarl) (Pty) Ltd 22 the

18 Supra 3 p. 236
19 1976 (1) SA 441 (A)
20 1994 (3) SA (A)
21 1961 (4) SA 244 (W)
22 1970 (1) SA 394 (A)
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court held that negligence on the part of the owner must be proved before the
defence of estoppel can succeed.
[7]
Moving on to c), the defendant raising estoppel must have relied on this
misrepresentation. The onus rests largely on the defendant to prove that but for the
misrepresentation, he/she would not have entered into the transaction. The
defendant must make it clear that it is the misrepresentation and nothing else that
led him/her into the particular transaction. In ABSA Bank t/a Bankfin v Jordasche
Auto CC.23 the defence of estoppel was unsuccessful because the defendant could
not provide sufficient evidence that it relied on the misrepresentation.
[8] The final requirement is that the defendant must have acted upon the
misrepresentation to his detriment. In other words, the defendant must show that
reliance on the misrepresentation was the cause of his decision to transact, which
led to the negative consequences that followed. Reliance on the misrepresentation
must inevitably have resulted in the defendant acting to his detriment.

Application
[9] Beginning with the first element of estoppel, Mr Mazibuko borrowed Jabulani his
Ferrari in good faith, Mr Mazibuko then asked Jabulani to assist him with license
renewal and so provided him with the logbook of the car in case of any queries
raised at the licensing office while he was away. In my view, there is nothing in these
actions that create an impression, even to the slightest degree that Jabulani was
empowered with the authority to dispose of or even alienate the vehicle. Mr
Mazibuko merely entrusted control and possession of the vehicle to Jabulani, and
this is not enough to fully establish the first requirement of estoppel.
[10] Secondly, Mr Mazibuko did not intend to give Jabulani an impression that he
had the authority to sell his Ferrari, nor was he negligent in this respect. I advance
two reasons in support of this contention: a) Mr Mazibuko specifically told Jabulani
that the vehicle is to be returned to him after Jabulanis graduation (14 April). If
Mazibuko had intended to pass ownership to Jabulani then why would he have
requested that the car be returned on the said date? I see no other reason besides
that of regaining possession, b) with regards to the statement Jabulani my son,
whats mine is yours in considering the high value of this car (R15 Million and
over R100 Million internationally) I doubt that a reasonable person in Jabulanis
position would have or should have taken this statement literally. Regardless of the
fact that Mazibuko is a multi-billionaire, I do not believe that he or anyone else in his
position would so lightly give away a car of such high value.
[11]
Now since I have established that there was no misrepresentation on Mr
Mazibukos part, common sense dictates that it cannot follow that Mrs Van Rooyen
23 2003 (1) SA 401 (SCA)
6

relied on any such misrepresentation, or that the misrepresentation was to her


detriment.
Conclusion
[12]
I am of the view that Mr Mazibuko does indeed have a chance of success
against Mrs Van Rooyen and that it is probable that his vindicatory action will
succeed.

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