If you are holding onto something that does not belong to you, and you cannot prove you have a legal right to keep it, you will have to give it back. That is the essence of a well-established legal principle, rei vindicatio, which allows an owner to reclaim their property from anyone who has it. This principle was recently confirmed in the case of Swissport South Africa (Pty) Ltd v Cemair (Pty) Ltd.
Swissport, a company providing aviation services, leased ground handling equipment to Cemair, an airline, on a month-to-month basis. In the very first month, Cemair defaulted by not paying the required rental and, understandably, Swissport cancelled the lease. After that, Cemair did not return the equipment and instead claimed that there was a tacit (implied) lease agreement that allowed them to keep using the equipment, or alternatively, that they had a right of retention (or lien) because they spent money on repairs or suffered damages. The court was convinced that Swissport proved that it owned the equipment and that Cemair was clearly in possession of it, but Cemair could not prove any legal right to keep it. The court found no evidence of a new lease and dismissed the claimed lien as vague and unsupported. As a result, Cemair was ordered to return the equipment.
Rei vindicatio is a legal remedy that enables a property owner to reclaim their goods from someone who is holding them without a valid legal right to do so. To succeed in such a claim, the owner must prove three key elements. Firstly, they are the owner of the item. Secondly, that the item still exists and can be clearly identified, and thirdly, that the other party is currently in possession of the item. Once these elements are established, the burden of proof shifts to the possessor, who must then demonstrate a lawful right to retain the property.
A possessor can successfully defend against a rei vindicatio claim by proving a valid legal right to retain the property. In other words, a possessor must demonstrate a right that is enforceable against the owner. This may include (i) a binding contract, such as a lease or rental agreement (ii) a lawful lien, which allows them to hold onto the item until expenses, such as improvements are reimbursed or (iii) estoppel, where the owner’s conduct led the possessor to reasonably believe they were entitled to keep the property. In the Swissport v Cemair case, however, Cemair failed to establish any of these defences. Their assertions lacked both evidentiary support and legal merit, and as a result, even if they acted in good faith (which they did not), they were still required to return the goods.
This case is another clear reminder that possession alone is not enough. If you do not own the item and cannot prove a lawful right to keep it, you are legally required to return it. For businesses, the key takeaway is the importance of maintaining clear written agreements, understanding the scope of their legal rights and responsibilities, and recognising that merely holding onto property does not create a legal advantage. In the absence of a valid defence, ownership will always prevail.
This article was compiled by Dalen Mmako and Wildu du Plessis.