Merchant West (Pty) Ltd v Hellmann and Others (21/27401) [2023] ZAGPJHC 213 (10 March 2023)

Merchant West (Pty) Ltd v Hellmann and Others (21/27401) [2023] ZAGPJHC 213 (10 March 2023)

The court found that Merchant West could not acquire ownership of the aircraft by constitutum possessorium on the effective date because CDC did not possess or own the aircraft at that time. The agreements specified the dates for transfer, but CDC only acquired ownership on 6 November 2019, after the effective date. Furthermore, the transaction between CDC and MW was found to be simulated, as MW was aware CDC had already paid for the aircraft and the financing was not genuinely for purchase but rather a loan secured by pledge. The court distinguished Boland Bank v Joseph on the facts and followed Kaplan, holding that the requirements for constitutum possessorium were not met. The court...

Citation
[2023] ZAGPJHC 213
Parties
Applicant: Merchant West (Pty) Ltd; Respondent: Denise Hellmann; Respondent: CDC Aviation (Pty) Ltd (in liquidation); Respondent: South African Civil Aviation Authority
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 March 2023
Case Number
21/27401
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Ownership Dispute
Outcome
Application for leave to appeal dismissed with costs of two counsel.
Judges
N Manoim
Legal Topics
Ownership Transfer, Constitutum Possessorium, Simulated Transaction, Pledge and Security, Leave to Appeal, Costs Order
Commercial and Corporate Civil Procedure Ownership Transfer Constitutum Possessorium Simulated Transaction Pledge and Security Leave to Appeal Costs Order

Case Brief

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Parties

Merchant West (Pty) Ltd

Applicant

Denise Hellmann

Respondent

CDC Aviation (Pty) Ltd (in liquidation)

Respondent

South African Civil Aviation Authority

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment on Ownership Dispute

Legal Issues

  1. 1 Whether ownership of the aircraft passed to Merchant West (MW) by constitutum possessorium prior to delivery to Denise Hellmann.
  2. 2 Whether the transaction between CDC and MW was a simulated transaction constituting a pledge rather than a genuine sale.
  3. 3 Whether there is a reasonable prospect of success on appeal warranting leave to appeal.

Ratio Decidendi

The court found that Merchant West could not acquire ownership of the aircraft by constitutum possessorium on the effective date because CDC did not possess or own the aircraft at that time. The agreements specified the dates for transfer, but CDC only acquired ownership on 6 November 2019, after the effective date. Furthermore, the transaction between CDC and MW was found to be simulated, as MW was aware CDC had already paid for the aircraft and the financing was not genuinely for purchase but rather a loan secured by pledge. The court distinguished Boland Bank v Joseph on the facts and followed Kaplan, holding that the requirements for constitutum possessorium were not met. The court...

Court Disposition

Application for leave to appeal dismissed with costs of two counsel.

Orders

  • The application for leave to appeal is dismissed.
  • Costs are awarded against the applicant, including costs of two counsel.