By Dean Brainin
A client lent a trailer to a friend to use on a camping trip. The friend refuses to return it. What can the client do?
Our law defines “Lending” as granting to someone the use of something on the understanding that the borrower will return it. What happens when a person refuses to return the lent property or claims they are the owner of the property?
South African law provides a remedy allowing the owner to reclaim the loaned property from whoever is unlawfully in possession of the property. The legal relief is the Rei Vindicatio. The action is open to the owner regarding both moveable and immoveable property.
The client needs to prove three things to get his trailer back:
- He owns the trailer;
- It must exist and be identifiable; and
- When he sues for the return of the trailer, it must be in the physical control/possession of the borrower.
If the friend disputes that the client owns the trailer, he bears the onus to prove he owns it or has a right to it. The borrower may raise four defences:
- The person claiming ownership of the property is not, in fact, the owner;
- The person’s physical possession/control of the property in dispute is not unlawful (a limited real right or a personal right);
- The property in dispute no longer exists or is no longer identifiable; and
- The defendant did not have physical control of the property at the time when the Rei Vindicatio was instituted.
If a court finds that the lender of the property is the lawful owner of the property in question, however, the person alleging to be the owner of the property has already sold/disposed of the property, the court will order that the equivalent monetary value of the property be awarded to the lawful owner.