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The application is properly before the court. The rei vindicatio is a common law remedy which is based on the principle that an owner is entitled to recover his property from whoever may possess it without his consent. See Chetty v Naidoo 3 SA It is inherent in the nature of ownership that possession of the rei should normally be 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 e.
It is common cause that the vehicle in issue is owned by the applicant and the respondent possesses the vehicle without its consent. He is only entitled to hold onto the vehicle upon establishing a defence that entitles him to continue holding onto the vehicle The onus is on the respondent to allege and establish the right to continue holding onto the vehicle. The respondent avers that in the first three years of his employment he used his own vehicle and the applicant paid all running costs.
That he was issued with the vehicle in terms of his contract of employment in June and only used the vehicle for two years. He contends that his contract of employment entitled him to purchase the vehicle and further that the years during which he used his personal vehicle are part and parcel of the five years, thus entitling him to purchase the vehicle.
Clause 6 of his letter of appointment reads as follows:. The respondent was in terms of his contract required to develop a vehicle scheme. The respondent has produced a motor vehicle scheme which he avers he developed. The applicant contends that he failed to produce one. The respondent has asked this court to dismiss the application and refer it to trial on the basis of the existence of a material dispute of fact over the existence of the vehicle scheme. I am going to take a robust approach and resolve the issue on the papers before me.
I will examine the scheme and determine if the respondent was in terms of that scheme entitled to purchase the vehicle. Except when directed by the board otherwise or in specific contractual circumstances vehicles will be depreciated over a five year period. The vehicles would be depreciated over a five year period.
Secondly clause 4 presupposes that the incumbent will be required to have driven the vehicle for 5 years before he can purchase it. That vehicle had not been depreciated over a five year period. There was no direction by the board waiving this requirement to sell the vehicle before the 5 years had elapsed.
The applicant drove the vehicle for just two years and is not in terms of clause 4 entitled to purchase the vehicle. He was paid his capital and running expenses and was therefore adequately compensated. The respondent has not been able to point to any right or entitlement to the car. The applicant is entitled to the return of its vehicle. The respondent therefore has no basis to continue holding onto the vehicle.
That in the event of the Respondent failing to comply with Paragraph 1 hereof, the Deputy Sheriff for Harare be and is hereby ordered, authorized and required, to seize the aforesaid motor vehicle from Respondent, or from whomsoever and wherever it be found, and to deliver same to the Applicant at the aforesaid premises.
That the costs of this application, together with any costs attendant upon giving effect to this order, shall be paid by the Respondent. Skip to main content. An HIV mother breastfeeding a baby: Did she commit a criminal offence? Capitec launches virtual banking card Read more. Digital workers can help the SA contact centre industry grow, not shed jobs Read more. Interest rate disappoints, but South Africans will buy property this festive season Read more. Low interest rate and realistic pricing sustaining buoyant residential property market Read more.
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