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[2022] ZANCHC 61
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Boshoff v Tristar Custom Feeders (Pty) Ltd and Others (2033/2020) [2022] ZANCHC 61 (30 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO: 2033/2020
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
E
.E. BOSHOFF
Applicant
and
TRISTAR
CUSTOM FEEDERS (PTY) LTD
First
Respondent
ACBP
BOERDERY (PTY) LTD
Second
Respondent
GRIEKWALAND
WES KORPORATIEF (GWK) BEPERK
Third Respondent
JUDGMENT
CHWARO
AJ
:
Introduction
[1]
In this application, Esaias Engelbertus Boshoff, (“
Boshoff
”),
the applicant, seeks payment of an amount of R821 869-34,
representing the proceeds of the slaughter of seventy-one
of his
Nguni-cross calves bearing a brand mark “
BEƎ
”,
from Tristar Custom Feeders (Pty) Ltd, (“
Tristar
”)
and Griekwaland Wes Korporatief Beperk, (“
GWK”
),
who are cited as the first and third respondents respectively.
[2]
This application is a sequel to an urgent
ex parte
application
that was launched on 17 November 2020 where Boshoff was granted
interim relief in the form of a
rule nisi
effectively securing
seventy-three Nguni cross calves (“the calves”) that were
delivered and stored at Tristar’s
feedlot from being
slaughtered or removed pending finalisation of the present
application.
[3]
On 21 May 2021, being the return date, the opposed application served
before my brother
Moses AJ who formed a view that since Boshoff’s
claim was premised on
rei vindicatio
, the limited issue
relating to ownership of the calves could not be resolved on papers.
Counsel for the parties were requested
to formulate a draft order
encapsulating this limited issue for referral to oral evidence in
terms of rule 6(5)(g) of the Uniform
Rules of Court.
[4]
For reasons unknown to me, the referral of the matter to oral
evidence could not be
finalised then. However, the matter served
before me on 13 August 2021 where I granted an order referring the
matter to oral evidence
on the crisp issue pertaining to whether or
not Boshoff was the owner of the calves bearing a brand mark “
BEƎ
”
as at 17 November 2020.
Background
[5]
Boshoff is a cattle farmer. On or about 27 August 2020, seventy-three
of his calves
were delivered to Tristar’s feedlot, following an
agreement concluded between his agent, Josua Johannes Truter
(“Truter”)
and Albert Botes, (“
Botes”
)
a former employee of Tristar in terms of which the said calves were
sold to ACBP Boerdery (Pty) Ltd, (“
ACBP Boerdery
”).
Boshoff contends that when the calves were delivered, he retained his
ownership over them pending payment of the full
purchase price on a
future date agreed upon, being 2 November 2020.
[6]
Tristar operates a feedlot for cattle in the Hartswater area and GWK
is its holding
company. ACBP Boerdery had an agreement with Tristar.
As part of this agreement, Tristar was to provide keeping space at
its feedlot
for the animals brought there by and on behalf of ACBP
Boerdery. In the event of there being any monies that are owed to it
by
ACBP Boerdery, Tristar would retain a lien over the same animals.
[7]
Both Tristar and GWK oppose the application. They contend that when
the calves were
delivered to Tristar’s feedlot on 27 August
2020, Boshoff passed ownership of such calves to ACBP Boerdery and
thus when
he instituted an application on 17 November 2020, the
calves were no longer his property.
[8]
It follows that the crisp legal issue that ought to be determined is
whether Boshoff
passed ownership of his calves to ACBP Boerdery on 27
August 2020, being the date when the calves were delivered to
Tristar’s
feedlot for and on behalf of ACBP Boerdery.
Evidence
tendered
[9]
Only the applicant, Boshoff and his agent, Truter testified.
Boshoff’s evidence
can be summarised thus: He is a cattle
farmer, having started to farm with Brahman cattle between 1981 and
1990. He thereafter
changed to Nguni-cross cattle from 1992. He
registered his own brand mark, “
BEƎ
”
on 20 May 1996 and since then, brands all his calves, after weaning
on 210 days, with this brand mark on the sides.
[10]
At the beginning of August 2020, he decided to sell some of his
calves . These were seventy-three
Nguni-cross calves of mixed sexes
and were bred by him from his farm. To that effect, he made a video
of the calves that were to
be sold and sent it to his appointed
agent, Truter. He informed Truter that the payment must be made on 2
November 2020 as he had
a financial obligation that he had to honour
by that date. Truter obtained the highest offer from Botes, who to
his knowledge,
was employed by Tristar.
[11]
On the morning of the delivery of the calves, he informed Truter that
ownership of the calves
should remain closed, meaning that he
retained ownership over the calves until full payment of the purchase
price is made by 2
November 2020. To that effect, he only issued an
undated invoice as he normally issues buyers with the original tax
invoice after
receipt of the purchase price. That practise made
business sense to him as he was able to pay value added tax on his
next due date.
[12]
Botes arranged transport for the delivery of the calves which
occurred on 27 August 2020. Before
the calves could be delivered,
Boshoff ensured that he weighed the delivery truck in its unloaded
form and thereafter weighed it
again with its various loads of the
calves. The weighing was done at the weighing scales found at GWK and
CCN Farming respectively.
[13]
Boshoff completed a removal certificate in respect of the two loads
which were collected at 10h00
and 14h00 respectively by the driver
from BW Visser Vervoer. The name of ACBP Boerdery was inserted under
the space provided for
the details of the client’s address on
the weighbridge certificates that was given to the driver. The
invoice, which the
applicant made out on 23 September 2020, was
addressed to ACPB Boerdery after their details were provided to him
by Truter.
[14]
The applicant testified that, from his previous experiences, he was
well versed with formulating
a sale agreement to retain ownership of
the goods he was selling until the payment of the full purchase
price. He would ensure
that such an agreement is procured especially
in cases where the potential purchaser is unknown to him.
[15]
Boshoff further testified that the undated invoice relating to the
seventy-three calves was sent
to Botes by electronic mail and later
by Whatsapp. Boshoff never received payment for the calves.
[16]
Truter testified that he was engaged by Boshoff to find a buyer for
his calves. He had an understanding
with Boshoff that if the purchase
of the calves was to be over an extended period, he will always
inform the buyer that ownership
over the calves is retained in favour
of Boshoff until full payment was made, a fact which, according to
him, was conveyed to Botes.
[17]
Tristar and GWK did not lead any evidence in support of their
contention that the calves were,
at the time when Part A of the
application was launched, not the property of Boshoff but belonged to
ACBP Boerdery.
Evaluation
[18]
It is common cause between the parties that the claim instituted by
Boshoff is based on the
rei vindicatio
, a well-known remedy
for the protection of ownership in terms of our law. Accordingly,
Boshoff was required to adduce evidence
to demonstrate that he was
the owner of the calves at the time when he launched the application
and that the calves were indeed
in the possession of Tristar and GWK.
[19]
In the often-cited case of
Chetty
v Naidoo
,
[1]
Jansen JA put the legal position in relation to what is expected of
an owner to be successful in pursuing this remedy in the following
terms:
“
It
is inherent in the nature of ownership that the possession of a
res
should
normally be with the owner, and it follows that no other person may
withhold it from the owner unless he is vested
with some right
enforceable against the owner (e.g. a right of retention or a
contractual right). The owner, in instituting a
reivindicatio
,
need, therefore, do no more than allege and prove that he is the
owner and that the defendant is holding the res --- the onus
being on
the defendant to allege and establish any right to continue to hold
against the owner.”
[20]
Tristar conceded that it was in possession of the calves on 17
November 2020. After the granting
of the interim order, the parties
agreed that Tristar would be entitled to slaughter the calves that
were deemed ready and the
proceeds from each slaughter would be
deposited into the trust account of Boshoff’s attorneys. This
agreement led to the
amendment of the notice of motion by Boshoff, in
terms of which his primary relief was to seek payment of the proceeds
of all slaughtered
calves that bore his registered brand mark.
[21]
In assessing whether the applicant managed to discharge the onus
placed on him to establish ownership,
this Court has to decide the
matter on the preponderance of probabilities, a well-established
standard applicable in matters of
this nature. In
Selamolele
v Makhado
[2]
the court held as follows regarding the applicable test:
“
Ultimately
the question is whether the
onus
on the party, who asserts a state of facts, has been discharged on a
balance of probabilities and this depends not on a mechanical
quantitative balancing out of the pans of the scale of probabilities
but, firstly, on a qualitative assessment of the truth and/or
inherent probabilities of the evidence of the witnesses and,
secondly, an ascertainment of which of the two versions is the more
probable..”
[22]
The above assessment will be done on the basis of the oral evidence
led considered together with
the undisputed evidence contained in the
affidavits already filed by the parties and relating to the limited
issue of prove
of ownership of the calves as at the date of the
institution of the application.
[3]
[23]
I find it not to be seriously disputed that Boshoff engaged the
services of Truter, as an agent
to market the calves to potential
buyers. Boshoff sent a video of the calves to Truter who eventually
concluded a deal with Botes.
Though Boshoff and Truter initially
thought that the calves were bought by Tristar, it eventually became
apparent that they were
sold to ACBP Boerdery. The transportation of
the calves from Boshoff’s place to Tristar’s feedlot was
arranged by Botes,
who engaged the services of a separate
transportation entity for these purposes.
[24]
It is similarly not in dispute that the transportation permit was
completed by Boshoff and he,
in his effort to determine the actual
weight of the calves, attended to the pre-load and post-load weighing
of the truck, beginning
with the initial fifty calves and later
twenty-three calves respectively before their transportation to
Tristar. The weighing certificates
that were eventually provided to
the driver who transported the calves indicated ACBP Boerdery as the
client of Tristar.
[25]
The fact that Truter engaged Botes as instructed by Boshoff, that the
calves had a brand mark
registered in the name of Boshoff, that he
personally participated at the weighing scales before the calves were
transported and
further that he completed the transportation permit
in respect of the calves, all point to an inescapable conclusion that
by 27
August 2020, when the calves were delivered to ACBP Boerdery at
Tristar’s feedlot, they were the property of Boshoff.
[26]
During argument,
Mr van Tonder
, counsel for Boshoff, contended
that though delivery of the calves from Boshoff to ACBP Boerdery
occurred on 27 August 2020, ownership
of the calves was not
transferred. This is so, since Boshoff, or his agent Truter, had no
intention to pass ownership before full
payment of the purchase price
was made on 2 November 2020. In his view, there was also no intention
on the part of ACBP Boerdery
and its representative, to become the
owner of the calves before full payment was made.
[27]
In developing this argument,
Mr
Van Tonder
relied on
Legator
McKenna Inc and Another v Shea and Others
[4]
where the abstract theory of passing ownership was explained to
entail delivery of the item coupled with the real underlying
agreement,
which encapsulates the intention on the part of the owner
to transfer ownership and the intention of the transferee to become
the
owner of the property.
[28]
Mr Knoetze SC
, counsel for Tristar and GWK, contended that
the seventy-three calves were transported, delivered and accepted by
Tristar as being
the property of ACBP Boerdery as no other
documentation that regulated the processing of the calves by Tristar
indicated that they
belonged to anyone else but ACDP Boerdery.
[29]
Placing reliance on the uncontrived fact that Boshoff knew how to
reserve his ownership on his
property before receipt of final
payment,
Mr Knoetze SC
further argued that it was improbable
that Boshoff and his agent conveyed a suspensive condition to the
actual buyer, who Boshoff
later came to know as being ACBP Boerdery ,
in respect of the ownership of the calves.
[30]
In his view and in line with the decision in
Laing
v South African Mining Co Ltd
[5]
,
Boshoff granted credit to ACBP Boerdery until 2 November 2020 but
disentitled himself of ownership when the calves were transferred
to
ACBP Boerdery on 27 August 2020. Resultantly, Boshoff was not the
owner of the calves on 17 November 2020, when he launched
the
application.
[31]
The credibility of Boshoff and Truter as witnesses cannot be
seriously attacked on any aspect
relevant for the determination of
the legal issue herein. In my view, it is the probabilities of their
versions, as seen against
the totality of the undisputed evidence
contained in the affidavits filed of record, that should be
determinative of the matter.
[32]
In my view and having considered the versions of Boshoff and Truter,
it cannot be contended otherwise
that when the calves were delivered
to ACBP Boerdery, Boshoff reserved his ownership over them until full
payment was made to him.
The evidence tendered indicate that this
fact was communicated to Truter, his agent. In all probabilities,
Truter conveyed it to
Botes.
[33]
I am fortified in my view on this aspect by the uncontrived version
of Boshoff that he had a
huge financial obligation that he wanted to
honour by 2 November 2020 and his decision to issue an undated
draft invoice
later in September 2020, knowing fully well that, as he
has indicated, the original invoice will only be issued after full
payment
has been made.
[34]
It cannot be contrasted that his
modus operandi
was that his
tax invoices are only issued after payment has been received to
enable him to comply with his value added tax obligations
once they
become due. However, I express no firm view on the appropriateness
and/or legality of this practise.
[35]
It is an established principle of our law that ownership of movable
property does not pass by
the making of a contract, it only passes if
delivery is accompanied by the intention of the transferor to pass
ownership and the
corresponding intention of the transferee to accept
ownership
[6]
.
[36]
The above position was also applied with approval in
Cornelissen
NO v Universal Caravan Sales (Pty) Ltd
[7]
where the majority of the Appeal Court held as follows:
“
The
words “sold and delivered” do not necessarily connote
that ownership in the goods has passed to the purchaser, for
it is
trite law that mere physical delivery of property, unaccompanied by
an intention to transfer ownership, does not give the
recipient
dominium.
”
[37]
The contention made on behalf of Tristar and GWK to the effect that
it was legally possible for
ownership of the calves to have passed
from Boshoff to ACBP Boerdery on 27 August 2020 in the sense
that the former gave ACBP
Boerdery credit, cannot be sustained. In
Eriksen
Motors ( Welkom) Ltd v Protea Motors, Warrenton and Another
[8]
the court held that the general rule that in a sale on credit,
ownership passes on delivery is not an irrefrangible principle of
law. The determining factor is the conspectus of the facts which will
indicate whether the parties intended ownership to pass or
not. In
other words, the nature of the sale, be it cash or credit, is a
relevant factor to be considered but is not conclusive.
[38]
In the present case, the evidence tendered on behalf of the applicant
indicate that though the
payment of the purchase price was deferred
to a later date, the seller, Boshoff, did not intend to pass
ownership with the delivery
of the calves. In this regard, Boshoff
was very clear in his testimony that he never had any intention of
passing ownership of
the calves when they were delivered to the
buyer. He informed his agent, Truter, that ownership “
stays
closed
”.
[39]
Boshoff’s intention was confirmed by Truter, who though not
forthright with the clear instructions
given to him in respect of
this very aspect, confirmed that he and Boshoff always had an
understanding that if the sale is a down
payment or it is an extended
payment, ownership remained with Boshoff.
[40]
In the premises, it is my finding that at the time of institution of
the application that was
launched on 17 November 2020, Boshoff was
the owner of the calves that were delivered to ACBP Boerdery and kept
at Tristar’s
feedlot. He reserved his ownership of the calves
and had no intention to transfer ownership of the said calves before
receipt of
full payment of the purchase price on 2 November 2020.
Costs
[41]
The applicant has urged this Court to award a punitive costs order
against Tristar and GWK, jointly
and severally, the one paying the
other to be absolved. It was contended that their opposition of the
application was without merit,
especially since they did not suggest
any impropriety on the part of Boshoff in relation to his claim to
the calves.
[42]
I am of the view that the opposition by Tristar and GWK was not
without merit. This view must
be seen against the agreement between
Tristar and ACBP Boerdery providing for a lien over the live animals
that were kept at the
feedlot under the name of the latter as well as
the vexed legal question relating to the actual passing of ownership
of the calves.
The usual principle, which I have no intention to
depart from, is that costs follow the result. The applicant is
successful, and
he is entitled to his costs.
Order
[43]
In the premises, the following order is made:
1.
The first and
third respondents are ordered to release the proceeds of the
slaughter of seventy-one of the applicant’s seventy-three
Nguni-cross calves with brand
“
BEƎ
”,
in the total amount of R821 869-34,(eight hundred and twenty-one
thousand eight hundred and sixty-nine rand and thirty-four
cents)
currently held in the trust account of the applicant’s
attorneys of record, which proceeds are to be paid to the applicant.
2.
The
first and third respondents are ordered to pay the costs of the
application, inclusive of the hearing of oral evidence, on a
party
and party scale, jointly and severally, the one paying the other to
be absolved.
OK
CHWARO
ACTING
JUDGE OF THE HIGH COURT
DATES
OF HEARING:
25-26
April 2022 and 12 September 2022
DATE
OF JUDGMENT:
30
September 2022
APPEARANCES:
For
the Applicant:
Adv. A.G. van
Tonder
Instructed
by: Haarhoffs
Inc,
Kimberley
For
the First and Third Respondent
:
Adv
B. Knoetze SC
Instructed
by: Van
De Wall Inc,
Kimberley
[1]
1974
(3) SA 13
(AD) at 20B-D
[2]
1988
(2) SA 372
(V) at 374J-375A
[3]
Vide
Lekup Prop Co No 4 (Pty) Ltd v Wright
2012 (5) SA 246
(SCA) at
258H-I
[4]
2010
(1) SA 35
(SCA) at para 22
[5]
1921
AD 387
at 389-395
[6]
See
Commissioner of Customs and Excise v Randles Brothers & Hudson
Ltd
1941 AD 369
at 398 and Weeks and Another v Amalgamated Agencies
Ltd
1920 AD 218
at 230
[7]
1971
(3) SA 158
(A) at 179D-E
[8]
1973
(3) SA 685
(A)