THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 917/2020

In the matter between:

RONEL NOLEEN SMIT
APPELLANT

and

CALVIN KLEINHANS                                                            RESPONDENT

Neutral citation: Ronel Noleen Smit v Calvin Kleinhans (case no 917/2020)
[2021] ZASCA 147 (18 October 2021)
Coram:
PETSE AP, and MOLEMELA, MBATHA JJA and KGOELE
and POTTERILL AJJA
Heard:

06 September 2021

Delivered:            This judgment was handed down electronically by circulation
to the parties' representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 18 October 2021.

Summary: Vindication of property by non-owner – rei vindicatio not available
to non-owner – bona fide possessor entitled to reclaim possession of property by
way of a possessory remedy.

ORDER

On appeal from: Eastern Cape Division of the High Court, Grahamstown
(Mnqandi AJ, Dawood J concurring, sitting as court of appeal):
The appeal is upheld with costs.
The order of the high court is set aside and in its place is substituted the
following:
‘1 The appeal is dismissed.
2 There is no order as to costs.’

JUDGMENT

Potterill AJA (Petse AP and Molemela, Mbatha JJA and Kgoele AJA
concurring):

[1] During June 2017 the appellant, Ms Ronel Noleen Smit (Ms Smit),
concluded a written instalment sale agreement (the agreement) with General
Motors South Africa Financial Services (GMSA) in terms of which she purchased
from GMSA a Chevrolet Utility 1.4 2017 model with registration number HYR
627 EC (the vehicle). In terms of clause 4.1 of the agreement GMSA retained the
ownership1 of the vehicle whilst Ms Smit undertook to bear all risks of loss or
damage in and to the vehicle.2 When Ms Smit concluded the agreement she was
in a romantic relationship with the respondent, Mr Calvin Kleinhans (Mr

1 Clause 4.1 of the agreement states: ‘We will remain owner of the Goods until you have paid all the amounts due
under this Agreement’.
2 Clause 2.5 states: ‘All risk in and to the Goods will pass to you and remain with you when you take delivery of
the Goods or when the risk leaves the Supplier of the Goods, whichever is the earlier'.

Kleinhans). Simultaneously with the conclusion of the agreement, Ms Smit
concluded an oral agreement with Mr Kleinhans.

[2] The undisputed terms of the oral agreement were that Mr Kleinhans would
have the exclusive use and enjoyment of the vehicle for his personal benefit, but
subject to him paying R5 000 to Ms Smit on the 15th of every month which
amount was equivalent to the monthly instalment payable to GMSA by the latter.
Mr Kleinhans also undertook to insure the vehicle and pay the yearly license
costs, all fines accrued in respect of the vehicle and the costs for servicing the
vehicle. It was further agreed between the parties that failure by Mr Kleinhans to
observe any one of these terms would constitute a material breach of the oral
agreement, entitling Ms Smit to the immediate restoration of possession of the
vehicle.

[3] During early to mid-2018 the relationship between these two parties broke
down irretrievably. With no meaningful communication between them, there was
a resultant silence pertaining to the fate of the vehicle. This was the beginning of
Ms Smit's woes. Mr Kleinhans' payments to Ms Smit became erratic and in July
2018 only R2 500 of the monthly amount payable was paid. Mr Kleinhans also
flatly refused to return the vehicle to Ms Smit despite demand by the latter for
him to do so. As a result, Ms Smit instituted legal proceedings against Mr
Kleinhans in the regional court Port Elizabeth for the return of the vehicle. Mr
Kleinhans opposed the application, but the regional court ordered that the vehicle
be returned to Ms Smit and also granted ancillary relief.

[4] In coming to the aid of Ms Smit, the regional court reasoned that by virtue
of being the registered owner of the vehicle, she was the lawful owner thereof.
Therefore she was entitled to vindicate it by invoking the rei vindicatio. And

because Mr Kleinhans was admittedly in possession of the vehicle, concluded the
regional court, Ms Smit had therefore discharged the onus resting on her.

[5] Dissatisfied with this outcome, Mr Kleinhans appealed to the Eastern Cape
Division of the High Court, Grahamstown (the high court). The high court upheld
the appeal and, as a result, set aside the order of the magistrate's court, substituting
it with an order dismissing the application with each party to pay their own costs.
The high court held that contrary to the conclusion reached by the magistrate's
court Ms Smit was not the common law owner of the vehicle. Therefore, the rei
vindicatio did not avail her. The high court reasoned that Ms Smit's reliance on
the National Road Traffic Act 93 of 1996 (NRTA) was misplaced for she was an
'owner' purely for purposes of the NRTA and not an owner in the conventional
sense in terms of the common law. In support of this conclusion the high court
relied on various decisions of this Court.3 The high court also made reference to
the decision of this Court in Goudini Chrome (Pty) Ltd v MCC Contracts (Pty)
Ltd [1993] 1 All SA 259 (A) in which the following was stated (at 259A-B):
'Since its claim is vindicatory in its nature, ownership was an essential averment which had to
be adequately proved by it.'
Consequently, the high court concluded that in a claim based on rei vindicatio it
was incumbent upon a party asserting ownership to prove such assertion.

[6] As already mentioned, the high court upheld the appeal with no order as to
costs. This appeal, with special leave granted by this Court, is against that order.

Issues to be decided
[7] At the core of this appeal is the question whether Ms Smit, as a bona fide
possessor, can rightfully invoke the rei vindicatio to claim the return of the

3 Estate Shaw v Young 1936 AD at 239; Dreyer and Another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548
SCA at 550 I-J; S v Levitt 1976 (3) SA 476 A.

vehicle. And if the rei vindicatio can not avail her, whether Ms Smit had, on the
facts alleged by her, established that she had a stronger right to possess the vehicle
and therefore entitled to its return as a consequence of the breach of the oral
agreement between the parties.

Rei vindicatio
[8] The objective of the rei vindicatio is to restore physical control of the
property to the owner, with ownership forming the basis for such a claim. Three
requirements must be met for the rei vindicatio to be successfully invoked.4 In
this case it is common cause that the vehicle existed and that it was in the
possession of Mr Kleinhans, thus leaving Ms Smit to prove ownership. In
addition, it is incumbent upon her to prove that Mr Kleinhans’ right to be in
possession of the vehicle was lawfully terminated.5

[9] One of the incidents of ownership, said Jansen JA in Chetty v Naidoo 1974
(3) SA 13 (A), 'is the right of exclusive possession of the res, with the necessary
corollary that the owner may claim his property wherever found, from
whomsoever is holding it. It is inherent in the nature of ownership that possession
of the res should be normally with the owner, and it follows that no other person
may withhold it from the owner unless he is vested with some right enforceable
against the owner.'6

[10] In terms of the written agreement between GMSA and Ms Smit the latter
is not the owner of the vehicle; GMSA retained ownership of the vehicle until all
the amounts owed in terms of the agreement have been paid in full. Although Ms

4 See G Muller et al The Law of Property: Silberberg and Schoeman’s 6 ed (2019) at 269-270 state that the three
requirements that the owner has to prove are: (a) he/she is the owner of the thing; (b) the thing was in the
possession of the defendant at the commencement of the action; and (c) the thing which is vindicated is still in
existence and clearly identifiable.
5 Chetty v Naidoo [1974] 3 All SA 304 (A); 1974 (3) SA 13 (A) at 15E-F.
6 At 20B-C.

Smit is the bona fide possessor of the vehicle, and bears all the risk of loss and
damage in respect of the vehicle in terms of the agreement, her possessory right
did not entitle her to re-claim the vehicle through the rei vindicatio as she was not
vested with full ownership of the vehicle.

[11] Accordingly, Ms Smit's reliance on the motor vehicle licence issued in her
name to prove that she is the owner of the vehicle is misplaced. Her assertion that
she was the owner as defined in s 1 of the NRTA7 does not assist her. Ownership
in terms of the NRTA is confined only to the purposes of the NRTA and whatever
else is regulated by the NRTA. It therefore follows that the various judgments
upon which Ms Smit relied in support of her contentions that she was the owner
of the vehicle and could therefore rightfully invoke the rei vindicatio are clearly
wrong. However, the conclusion that the rei vindicatio does not avail Ms Smit is
not necessarily the end of the matter. Rather, it raises the question as to whether
Ms Smit had established under the rubric of her prayer for further or alternative
relief that she is entitled to have the vehicle's possession restored to her.

[12] Undoubtedly, Ms Smit is the bona fide possessor of the vehicle. However,
she relinquished physical possession to Mr Kleinhans pursuant to the parties' oral
agreement. Ms Smit is, in terms of the agreement with GMSA, entitled to be in
possession of the vehicle; but Mr Kleinhans was, in turn, entitled to be in
possession of the vehicle in terms of the oral agreement. For Ms Smit to be
successful in her claim for the return of the vehicle she must prove that she is
entitled to possession (ie ius possidendi) and that her right to possession is
stronger than that of Mr Kleinhans.8 Although Ms Smit did not have the physical

7 Section 1 of the National Road Transport Act 93 of 1996 defines 'owner' insofar as is relevant to this case as:
'(a) the person who has the right to the use and enjoyment of a vehicle in terms of . . . a contractual agreement
with the title holder of such vehicle.'
8 27 Lawsa Second Ed para 118; Also see H Mostert et al The principles of the Law of Property in South Africa
(2010) para 4.4.2.3.

possession of the vehicle (detention), she did have the ius possidendi derived from
the agreement with GMSA. To succeed in her claim, Ms Smit bore the onus to
prove that Mr Kleinhans had breached the parties' oral agreement.

[13] It was submitted in the heads of argument filed on behalf of Mr Kleinhans
that there was a genuine dispute of fact on the papers pertaining to whether there
was a breach of the oral agreement. Consequently, it was contended that the
matter could not be decided on the papers without referral to oral evidence to
resolve the dispute. The approach to determining whether there is a factual
dispute was explained in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd [1984] 2 All SA 366 (A); 1984 (3) SA 623 (AD) at 634H-I as follows:
‘. . . It is correct that, where in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant’s affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent, justify such an order. The power
of the Court to give such final relief on the papers before it is, however, not confined to such a
situation.’

[14] In her founding affidavit Ms Smit stated that: ‘. . . I concluded the deal in
question and the motor vehicle was subsequently delivered in my absence to the
Respondent’. In his answering affidavit, Mr Kleinhans said: ‘The Respondent
collected and/or took possession of the vehicle from GMSA, Williams Hunt
Moffet, on or about 21 June 2017, after the Applicant signed the instalment sale
agreement with GMSA Financial Service’. Yet, in the replying affidavit Ms Smit
then contradicts herself saying: ‘I deny that the vehicle was never delivered to me
or that I never took possession of the vehicle. I maintain that the vehicle was
delivered to me when I purchased it and I accepted delivery thereof in person’.
Ms Smit alleged that the monthly instalment that should have been paid over in
July was R5 227.58 and in the reply she does not answer to the averment by Mr
Kleinhans that the monthly instalment was R4 831.16 per month. Ms Smit baldly

denied the further term of the oral agreement as alleged by Mr Kleinhans that
once the vehicle has been paid for in full, it would become his sole property. In
support of this averment Mr Kleinhans alleged that he had modified the vehicle
because it was ultimately going to become his property once it was fully paid for.

[15] In Fakie N O v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) this Court
stated the following regarding disputes of facts in motion proceedings (para 55):
‘That conflicting affidavits are not a suitable means for determining disputes of fact has been
doctrine in this court for more than 80 years. Yet motion proceedings are quicker and cheaper
than trial proceedings, and in the interests of justice courts have been at pains not to permit
unvirtuous respondents to shelter behind patently implausible affidavit versions or bald denials.
. . .’
Despite the shortcomings and what appears at face value to be contradictions in
the affidavits, I am satisfied that final relief can be granted without recourse to
oral evidence on the basis of the facts averred in the founding affidavit that have
been admitted by Mr Kleinhans together with the facts alleged in the latter's
answering affidavit.9 Thus, referral to oral evidence would be inappropriate
because ‘[a] real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed. . .’.10 Mr
Kleinhans did not meaningfully address the short payment of the instalment for
July 2018 so as to raise a real and genuine dispute of fact on the papers.11

[16] It remains to express our gratitude to Mr S Grobler SC who, together with
Ms R Mofokeng, argued the appeal at the request of this Court because Mr
Kleinhans had run out of funds. Consequently, his attorneys were constrained to

9 See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984
(3) SA 620 and the cases therein cited.
10 Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; [2008] 2 All SA 512
(SCA); 2008 (3) SA 371 (SCA) para 13.
11 See in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 TPD at 1163-
1165; Da Mata v Otto NO 1972 (3) SA 585 (A) at 882D-H.

withdraw and indicated that there would be no appearance on behalf of Mr
Kleinhans at the hearing of the appeal. We are grateful to counsel for coming to
the assistance of the Court in keeping with the best traditions of the Bar and for
their concise and lucid heads of argument.

[17] Accordingly, the following order is made:
The appeal is upheld with costs.
The order of the high court is set aside and in its place is substituted the
following:
'1 The appeal is dismissed.
2 There is no order as to costs.’

S POTTERILL
ACTING JUDGE OF APPEAL

Appearances:

For appellant:
V Madokwe (heads of argument prepared by
A Beyleveld SC with him V Madokwe)
Instructed by:

Mandy Miller Attorneys, Port Elizabeth
Honey Attorneys, Bloemfontein

For respondent:

No appearance

For amicus:

S Grobler SC (with him R Mofokeng)
THE SUPREME COURT OF APPEAL OFSOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED

FROM

The Registrar, Supreme Court of Appeal

DATE

18 October 2021

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part
of the judgment.

Ronel Noleen Smit v Calvin Kleinhans (case no 917/2020) [2021] ZASCA 147 (18
October 2021)

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) upheld an appeal against an order of the
Eastern Cape Division of the High Court, Grahamstown (high court), and substituted
the high court order by dismissing the appeal.

Ms Smit and Mr Kleinhans were in a romantic relationship. Ms Smit concluded a written
instalment sale agreement with a Credit Provider for a motor vehicle. She did so, as
to provide the use of the vehicle to Mr Kleinhans. In return, they orally agreed that he
would pay the monthly instalments to her that she in terms of the written agreement
had to pay to the Credit Provider. He was also responsible for all ancillary costs and
maintenance. If he defaulted on any of these payments, Ms Smit would be entitled to
the return of the vehicle. The relationship broke down and Mr Kleinhans defaulted on
payment for July 2018 and refused to return the vehicle. Ms Smit successfully
instituted the rei vindatio remedy for the return of the vehicle in the Port Elizabeth

regional court. However, the high court on appeal dismissed the application because
Ms Smit was the bona fide possessor of the vehicle and not the owner.

The issue before the SCA was whether Ms Smit could rightfully invoke the rei vindicatio
to claim the return of the vehicle, and if not whether she had established that she had
a stronger right to possess the vehicle and therefore entitled to for its return as a result
of the breach by Mr Kleinhans. The SCA on appeal upheld the finding that the rei
vindicatio is not available to a non-owner. However, the SCA found that a bona fide
possessor is entitled to reclaim possession of the vehicle by way of a possessory
remedy. As Mr Kleinhans breached the oral agreement, Ms Smit was entitled to the
return of the vehicle.

--- ends --