Marais v Melck and Another

The Applicant, a farmer, sought the return of farming equipment (two tractors, two ranking machines, and two harvesters) from the Respondents. The Applicant alleged he owned the equipment through a joint venture with the Second Respondent, his nephew, to exploit Kalahari melon seed oil. The equipment was removed from the Applicant's farm with his consent, on the understanding it would be used elsewhere and returned. It was not returned. The Second Respondent denied the Applicant's ownership, alleging the equipment belonged to Trend Global Corporation Limited and Origins UK, and that the Applicant merely used it. The Applicant brought an ex parte application for the equipment's return, later opposed by the Second Respondent, who also filed a counterapplication (withdrawn before the hearing).

• Whether the Applicant proved ownership of the farming equipment to succeed with the rei vindicatio.
• Whether the Applicant discharged the onus of proof regarding ownership of movable property not in his possession.
• Whether the Applicant could introduce a new cause of action (spoliation) in the replying affidavit.
• Whether the matter should be referred to trial or oral evidence due to factual disputes.

The application is dismissed with costs, including counsel's fees on the B scale.

To succeed with a rei vindicatio for movable property, an applicant must prove ownership on a balance of probabilities, which includes establishing delivery by a person entitled to pass ownership with the intention to transfer ownership and the intention to receive ownership. Registration of a vehicle under the National Road Traffic Act does not constitute proof of common law ownership. The onus is heavier for movable property because of the presumption that the possessor is the owner. A party cannot introduce a new cause of action in a replying affidavit. A court will not refer a matter to trial if the applicant has failed to make out a cause of action in the founding affidavit, as this would allow the applicant an unfair procedural advantage.

The court expressed concern that the Second Respondent removed the equipment under a 'false pretext' after the Applicant consented to its removal on the understanding it would be returned, noting it was 'highly unlikely' the Applicant would have agreed had he known the equipment would not be returned. The court also commented on the inordinately lengthy judgment due to the expansive factual disputes, emphasising that a judgment is primarily for the benefit of the parties.

This case underscores the stringent requirements of the rei vindicatio in South African law, particularly the onus on an applicant to prove ownership of movable property in the possession of another. It reaffirms the principle that a party must make out its case in the founding affidavit and cannot introduce a new cause of action in a replying affidavit. It also illustrates the court's reluctance to refer matters to trial where the applicant has failed to establish a cause of action on the papers.