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26 Oct 2021
BY Aslam Moosajee AND Shenaaz Munga

Ownership when romantic relationships unravel

Rei vindicatio is a remedy aimed at restoring physical control of property to the owner. The basis of such a remedy is ownership. In order to successfully invoke this remedy, the following three requirements must be met:

  1. The person invoking the remedy must be the owner of the item;
  2. The item was in the possession of the other party at the commencement of the proceedings; and
  3. The vindicated item is still in existence and is clearly identifiable.

The Supreme Court of appeal, in the judgment of Ronel Noleen Smit v Calvin Kleinhans dealt with the issue of whether Ms Smit could invoke the remedy of rei vindicatio to claim return of a vehicle.

Ms Smit and Mr Kleinhans were in a romantic relationship. During their relationship, Ms Smit concluded an instalment sale agreement in terms of which she purchased a vehicle. Simultaneously with the conclusion of this agreement, Ms Smit and Mr Kleinhans concluded an oral agreement. 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;
  • Pay Ms Smit R5 000 a month;
  • Insure the vehicle; and
  • Pay the costs in respect of annual licensing, fines and servicing the vehicle.

It was also agreed between the parties that if Mr Kleinhans breached the agreement by failing to observe these terms, Ms Smit would be entitled to immediate restoration of possession of the vehicle.

The relationship between Ms Smit and Mr Kleinhans broke down and Mr Kleinhans’ payments to Ms Smit became erratic. Despite breaching the agreement, Mr Kleinhans refused to return the vehicle. Ms Smit successfully approached a court for an order requiring Mr Kleinhans to return the vehicle to her. Mr Kleinhans thereafter appealed and the first Appeal Court held that Ms Smit was not the common law owner of the vehicle and consequently, she could not invoke the remedy of rei vindicatio.

Ms Kleinhans then appealed to the Supreme Court of Appeal (“SCA”). The SCA accepted that Ms Smit was the good faith possessor of the vehicle, and bears all the risk of loss and damage in respect of the vehicle in terms of an instalment sale agreement. However, the instalment sale agreement provided that the other contracting party retained ownership until all amounts owned in terms of that agreement have been paid in full. Consequently, Ms Smit was not vested with full ownership and could not invoke the remedy of rei vindicatio.

However, that was not the end of the matter.

Ms Smit’s alternative claim was the return of the vehicle as a consequence of Mr Kleinhans breaching the oral agreement. The SCA held that Mr Kleinhans breached the oral agreement and Ms Smit was entitled to possession of the vehicle and her right to possession was stronger than that of Mr Kleinhans. Ms Smit’s “stronger” right to possession emanated from the instalment sale agreement. The SCA upheld the appeal and Mr Kleinhans was ordered by the SCA to return the vehicle to Ms Smit.

 

Aslam Moosajee

Executive | Dispute Resolution

amoosajee@ENSafrica.com

+27 82 461 5917

 

Shenaaz Munga

Senior Associate | Dispute Resolution

smunga@ENSafrica.com

+27 67 180 4706