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[2015] ZASCA 185
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Koster v Norval (20609/14) [2015] ZASCA 185 (30 November 2015)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20609/2014
Not
Reportable
In
the matter between:
RALPH
WERNER KÖSTER
APPELLANT
and
ARCHIBALD NORVAL
RESPONDENT
Neutral citation:
Köster
v Norval
(20609/14)
[2015] ZASCA 185
(30
November 2015)
Coram:
Ponnan, Majiedt, Pillay JJA and Van der Merwe and
Baartman AJJA
Heard:
02
November 2015
Delivered:
30
November 2015
Summary:
Sale ─ by
non-owner ─ obligations ─ required to deliver vacua
possessio only and to warrant against eviction ─
not obliged to
transfer ownership ─ appeal dismissed.
ORDER
On appeal
from
Western Cape
Division of the High Court
, Cape Town (Van
Staden AJ sitting as court of first instance):
The appeal is dismissed
with costs.
JUDGMENT
Pillay JA
and Van der Merwe AJA (Ponnan and Majiedt JJA and Baartman AJA
concurring)
[1] By the
middle of February 2004, Mr Archibald Norval, the respondent, was the
holder of or entitled to all the shares in Flexivest
6 (Pty) Ltd
(Flexivest). Flexivest owned land, game and farming equipment. The
respondent wished to dispose of the whole of his
interest in
Flexivest for a consideration of R8,5 million. On 18 February 2004,
he entered into two written agreements in respect
thereof with Mr
Ralph Werner Köster, the appellant. In terms of the first of
these agreements, the respondent sold all the
issued shares in
Flexivest to the appellant or his nominee for the purchase price of
R6,5 million. This agreement recorded that
the assets of Flexivest
consisted of fixed property, that is farmland, as well as farming
equipment listed in an annexure to the
agreement. In terms of the
second agreement, the respondent sold the game listed in an annexure
attached thereto, to the appellant
for the purchase price of R2
million. The contract provided that the purchase price was payable
five years after the date of the
agreement and provided that the
appellant was not liable for the payment of interest on the purchase
price. It is clear from the
evidence that the sole reason for the
separate agreement in respect of the game was to accommodate the
appellant’s request
for a five year interest free extension of
the date of payment of the purchase price. In return the respondent
obtained the right
to the occupation of the house and farmyard on the
farm Nooitgedacht for the period of five years.
[2] The
provisions of the sale agreement in respect of the Flexivest shares
were duly given effect to. The purchase price was paid
and the shares
were transferred to the appellant’s nominee, the Mimosa Lodge
Trust IT 613/2003. However, despite the effluxion
of the period of
five years, the appellant refused to make payment of the purchase
price of R2 million in respect of the game.
[3] The
respondent accordingly issued summons in the Western Cape Division of
the High Court. The court a quo (Van Staden AJ) gave
judgment in
favour of the respondent for payment of the amount of R2 million,
mora interest on that amount calculated from 29 April
2009 to date of
payment and costs of suit. It, however, granted leave to the
appellant to appeal to this court.
[4] As we
have said, the respondent was not the owner of the game. In his
particulars of claim he nevertheless pleaded that he had
performed
all his obligations in terms of the deed of sale in respect of the
game. This was in accordance with our law. It is trite
that it is not
a requirement for a valid contract of sale that the seller must be
the owner of the thing sold. In
Alpha Trust (Edms) Bpk v Van der
Watt
1975 (3) SA 734
(A) 743H-744A, Botha JA summarized the legal
position as follows:
‘
Dit
is duidelik dat vir ‘n geldige koopkontrak volgens ons reg geen
vereiste is dat die verkoper van die koopsaak eienaar
daarvan moet
wees nie. Ofskoon dit die doel van die koopkontrak is dat die koper
eienaar van die verkoopte saak moet word, is die
verkoper egter nie
verplig om die koper eienaar daarvan te maak nie. Hy moet die koper
slegs in besit stel en hom teen uitwinning
vrywaar. Dit beteken dat
die verkoper daarvoor instaan dat niemand met ‘n beter reg
daartoe die koper wettiglik van die verkoopte
saak sal ontneem nie,
en dat hy, die verkoper, die koper in sy besit van die saak sal
beskerm.’
G R J
Hackwill,
Mackeurtan’s Sale of Goods in South African
,
5
th
ed states:
‘
As
has been indicated elsewhere, although the parties to a contract of
sale usually contemplate a transfer of ownership in the thing
sold,
this is not an essential feature of the contract, and sales by
non-owners are quite permissible.’
(p 23,
para 3.1.1.)
‘
The
delivery required of a seller is the delivery of undisturbed
possession (
vacua
possessio
) coupled
with the guarantee against eviction. It is not necessary that the
seller should pass the ownership, for the implied engagement
of the
seller is a warranty against eviction and not a warranty of title,
but he must divest himself of all his proprietary rights
in the thing
sold in favour of the purchaser.’
(p 66,
para 6.2)
(See also De
Wet & Van Wyk,
Kontraktereg en Handelsreg
,
5th ed, vol 1 p 329.)
[5] In the
court a quo, it was common cause that delivery of possession of the
game had been made to the appellant. The game was
on Flexivest’s
land at the time of the sale and remained on the land at all relevant
times thereafter. In the absence of
custom, trade usage or agreement
to the contrary, the obligation of the seller is to put the goods at
the disposal of the buyer
at the place where they were at the time of
the sale (see
LAWSA
, p
51 para 62 and p 54 para 65). This rule applied in this instance and
this is exactly what took place in this instance. It is
clear from
the evidence of both respondent and Mr van Velden, the attorney who
testified on behalf of the appellant, that the game
was made
available and placed at the disposal of the appellant as the game
remained on the land. The appellant did not testify.
He did not plead
that he was evicted nor was there any evidence that any person with a
better title had sought to lay claim to
the game.
[6] The
appellant sought to avoid the inevitable conclusion that he is liable
for payment of the purchase price of the game, by
pleading as
follows:
‘
2.2
The following were tacit, alternatively implied terms of the Deed of
Sale (Annexure “A”):
2.2.1
the Plaintiff was the owner of the game listed on “aanhangsel
A”;
2.2.2
the Plaintiff was capable of transferring ownership in the game to
the Defendant;
2.2.3
delivery of the game would be effected by the Plaintiff to the
Defendant with the intention of transferring
ownership in the game,
and delivery would be taken by the Defendant with the intention of
accepting ownership in the game.’
[7] In
response to a request for further particulars for trial, the
respondent denied the contents of paragraph 2.2.1 above, but
admitted
the contents of paragraphs 2.2.2 and 2.2.3. In our judgment these
admissions constitute errors of law and the respondent
is not bound
by them. There is a clear distinction between an implied term and a
tacit term of a contract. An implied term is a
rule of the law that
is applicable to such contracts unless validly excluded by the
contract itself. As we have pointed out, it
is certainly not a term
implied by law that the seller is obliged to transfer ownership of
the merx to the purchaser. A tacit term,
if it exists, must be found
by necessary implication in the unexpressed intention of the parties.
(See
Alfred McAlpine & Son (Pty) Ltd v
Transvaal Provincial Administration
1974 (3)
SA 506
(A) at 531-532.) From this flows the rule of the law that no
tacit term can be imported into a contract in contradiction of the
express terms of the contract.
(See
Robin v Guarantee
Life Assurance Co Ltd
1984 (41 SA 558
(A) at 567A-F).
The
express terms may also exclude the possibility of importing tacit
terms even when the express terms do not expressly deal with
the
matter. The sale agreement in respect of the game contained detailed
provisions, was efficacious and complete and there is
no necessary
implication that the parties’ unexpressed intention was that
the respondent was obliged to transfer ownership
of the game.
[8] In any
event, Mr Velden testified:
‘
Ja.
--- Maar daar was definitief wild op die plaas.
.
. .
En
u aanvaar dat hierdie wild vir R2 miljoen verkoop is en gekoop is
deur u kliënt: daaroor het ons geen problem nie? --- Die
wil[d]
was verkoop vir R2 miljoen. Daar was ‘n ooreenkoms aangegaan
met mnr Norval vir die aankoop van die wild vir R2 miljoen,
dis
korrek.
Goed.
Ek sê u het geen probleem daarmee dat hierdie wild vir R2
miljoen aangekoop is nie. Dit is nie die probleem nie? ---
Nee. Daar
was ‘n koopkontrak met mnr Norval vir R2 miljoen.
Ja.
--- Daar was ‘n ooreenkoms, ja.
.
. .
Ja.
Goed. So ons kan nou seker wees die wild wat hier ter sprake is, is
definitief gelewer; ons moet net vasstel wie het dit gelewer.
--- Ja.
Mnr Norval kon dit nie lewer nie want hy het nie eiernaarskap gehad
nie. So die enigste ander instansie wat kon gelewer
het, is
Flexivest, maar kon Flexivest gelewer het indien hy nie verkoop het
nie? So die wild was op die grond van Flexivest.
.
. .
Goed.
Nou met hierdie skets wat u nou vir die Hof gee en die agtergrond, is
ek nog steeds nie by die antwoord nie. Ek wil weet:
die R2 miljoen
wat vir die wild betaal moes word – want ons is dit eens:
Hierdie wild op bl 13 is gekoop deur u kliënt
vir R2 miljoen.
--- Dit is gekoop vir R2 miljoen, dis korrek.
En
hy het dit nooi[t] betaal nie. --- Hy het dit nie betaal nie.’
It was thus
undisputed that: (a) there was an agreement between the parties in
respect of the sale of the game; (b) the game was
on the farm at the
time of the sale, and as a consequence there had been delivery in
terms of our law; and (c) despite delivery
there was no payment for
the game. It must thus follow that the defence raised by the
appellant is contrived and disingenuous.
[9] In the
result the following order is made:
The appeal is
dismissed with costs.
_________________
R Pillay
Judge of Appeal
C H G Van der Merwe
Acting Judge
of Appeal
APPEARANCES:
FOR
APPELLANT:
J Muller SC
Instructed by:
Lombard & Kriek Attorneys, c/o MacGregor Stanford
Kruger,
Cape Town
Webbers Attorneys, Bloemfontein
FOR
RESPONDENT:
Mr S W W J Van Der Sandt
Instructed by: Hanekom & Bester Attorneys, c/o
Mauritz Briers, Cape Town
McIntyre & Van der Post Attorneys, Bloemfontein