Under South African law, “rei vindicatio” — the fancy sounding Latin phrase (something that every first year law student learns about and that basically means “claim back what is mine”) empowers the rightful owner of any asset to recover that property from anyone who possesses such thing without the owner’s approval – even if there is no contract between them. The recent case of Barloworld Equipment Southern Africa v Mekgopaze Nkosi Trading Enterprise (Pty) Ltd & Others illustrates this principle in action and offers important lessons for businesses dealing with leased or borrowed assets.
Barloworld leased earthmoving trucks to Mekgopaze in 2022. The equipment was delivered to a mining site of a third party, Malonjeni, who was not a party to the lease. In early 2023, Mekgopaze defaulted on its payments due to Barloworld under the lease, so Barloworld remotely disabled the machines, cancelled the lease, and demanded the return of the equipment. Malonjeni, who was in possession of the trucks, refused to give them up despite knowing Barloworld was the owner, claiming that it had “no dealings” with Barloworld and would not release the machines until Mekgopaze’s dispute was resolved, effectively holding them hostage as leverage.
Barloworld then issued an urgent High Court application, relying on the rei vindicatio legal action to reclaim its property. Mekgopaze did not oppose the claim, leaving Malonjeni as the sole respondent. This set the stage for the court to decide if Barloworld’s ownership alone was enough to recover the machines from Malonjeni – a third party with no contract or ownership rights and who had not defaulted on any obligation to Barloworld (remember, it was Mekgopaze who did not pay Barloworld and for all that we know Malonjeni might very well have paid Mekgopaze in full).
As alluded to at the outset, the rei vindicatio is a fundamental principle of South African law that every first-year law student will (or at least should!) tell you allows a property owner to reclaim their property from anyone possessing it without a lawful right. It is a real action based on ownership itself, not requiring any contract or prior relationship with the possessor. What matters is the owner’s superior title. Even an innocent or good-faith possessor must return the property if they have no valid right to keep it.
The High Court brushed aside Malonjeni’s procedural objections and focused on the requirements for the rei vindicatio. To succeed, Barloworld had to prove it owned the equipment, that it still existed and was in Malonjeni’s possession, and that Malonjeni had no lawful right to keep it.
All these elements were met – Barloworld clearly owned the machines, which were undeniably in Malonjeni’s possession at the site, and Malonjeni had no legal justification to retain them (after Mekgopaze’s lease was terminated, Malonjeni was neither the owner nor the lawful possessor). With no valid defence from Malonjeni, the court ordered the equipment to be returned to Barloworld. The judgment affirmed that a rightful owner may reclaim property from a third party even without a contract, so long as the possessor cannot show a superior right. In other words, ownership trumped mere possession.
The Barloworld outcome strongly reaffirms that an owner does not lose their property rights simply because an asset is in someone else’s hands. A possessor can only defend the owner’s claim by proving a recognised legal right to hold the property, such as a valid contract, lien (a right to keep possession of property belonging to another person until a debt owed by that person is discharged), or estoppel (a legal rule that prevents someone from contradicting a previous statement or actions, especially if someone else relied on that statement or actions to their detriment), otherwise the owner will prevail.
Businesses must be mindful of the ownership status of assets in their possession because ignoring the true owner can leave a business exposed when the rightful owner comes to reclaim them.
This article was prepared by Dalen Mmako.