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[2020] ZASCA 10
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Griekwaland Wes Korporatief Beperk v Standard Bank of South Africa Limited (396/19) [2020] ZASCA 10 (19 March 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 396/19
In
the matter between:
GRIEKWALAND
WES KORPORATIEF BEPERK APPELLANT
and
STANDARD
BANK OF SOUTH AFRICA LIMITED RESPONDENT
Neutral
citation:
Griekwaland
Wes Korporatief Beperk v Standard Bank of South Africa Limited
(Case
no 396/19)
[2020] ZASCA 10
(19 March 2020)
Coram:
NAVSA, MOLEMELA and PLASKET JJA and
LEDWABA and GORVEN AJJA
Heard
:
12 March 2020
Delivered
:
19 March 2020
Summary:
Claim to
ownership – identification – documentary evidence –
whether the evidence adduced proved ownership.
ORDER
On
appeal from:
Free
State Division of the High Court (Jordaan J, sitting as court of
first instance):
The appeal is dismissed with costs, such costs to
include those consequent on the employment of two counsel where this
was done.
JUDGMENT
Gorven
AJA (Navsa, Molemela and Plasket JJA and Ledwaba AJA
concurring)
[1]
This appeal concerns the ownership of 306 beef calves. Vierfontein
Voerkraal (Eiendoms) Beperk (Vierfontein) ran a cattle feedlot
business on its farm (the farm). The appellant concluded two sets of
written agreements with Vierfontein. The first was a series
of
Liaison Service Transactions (LSTs). In these, the appellant was
reflected as an agent and charged commission. Vierfontein was
reflected as the purchaser. The series of LSTs reflected that 306
calves had been purchased for Vierfontein from various sellers
in a
number of transactions. The appellant paid the sellers and arranged
transport of the calves to Vierfontein’s farm. It
then invoiced
Vierfontein for the purchase price, its commission and transport
costs. The second agreement was
termed a
Non-Production Credit Facility. This
provided
Vierfontein with credit of R3 million
.
[2]
The respondent held a general notarial bond over all movables owned
by Vierfontein. On 16 March 2018 it obtained an order
that it
could perfect its security under this bond. In executing the order,
the sheriff attached all of the livestock on the farm.
Vierfontein
was provisionally liquidated on 12 April 2018 and finally
liquidated thereafter.
[3]
The appellant claimed to own 306 calves of those attached. It brought
an
ex parte
Anton Piller application, ostensibly to obtain documents and related
evidence as to its assertion of ownership. It obtained an
order on
14 May 2018 and executed it on 15 May, 18 May and 14 June
at the farm. This resulted in 306 calves being pointed
out as those
claimed by the appellant. The appellant thereafter supplemented the
application to apply for a declaration that it
was the owner of those
306 calves. The appellant claimed ownership based on certain terms of
the LSTs and the credit facility.
[4]
The respondent opposed this relief. The opposition had three
essential grounds. The respondent had invited the appellant to
identify those attached calves which it claimed to own. The
respondent was not satisfied that the appellant had done so or could
do so. The first ground of opposition, therefore, was that the
respondent disputed that the appellant could identify the claimed
306
calves. Secondly, it denied that, in law, the appellant became owner
of any of the calves purchased pursuant to the LSTs. Finally,
it
contended that, if it was held that ownership had passed to the
appellant as a result of the credit agreement, the provisions
of s 84
of the Insolvency Act
[1]
applied.
[5]
The matter came before Jordaan J in the Free State Division of the
High Court. He did find that the appellant had proved that
the 306
calves identified by it pursuant to the Anton Piller order were those
purchased under the LSTs. However, he held that the
appellant had not
proved ownership of the cattle which had been attached. For example,
the LSTs, by virtue of which all of the
calves were purchased,
reflected Vierfontein as purchaser and the appellant as agent. The
appellant reflected a commission payable
on each LST. This was
payable as the agent of Vierfontein. As a result, he found that it
could not be said that the various sellers
intended to transfer
ownership to anyone other than Vierfontein. The application for a
declaration of ownership was dismissed with
costs but leave to appeal
to this court was granted by the court of first instance.
[6]
The onus rests on the appellant to prove ownership. It conceded in
argument that there was no admissible evidence identifying
the calves
purchased as being any of those which had been attached. All that was
produced in the application was a series of documents
whose
provenance was not attested to. The concessions were correctly made.
It need hardly be said that, as a result, the appellant
was unable to
discharge the onus. This, too, was correctly conceded. This means
that, even if the appellant could show that it
obtained or reserved
ownership by virtue of the two sets of agreements, it cannot succeed.
The second and third grounds of opposition
accordingly need not be
dealt with. The conclusion of the court of first instance that the
appellant had failed to prove ownership
cannot be faulted. This means
that the appeal must fail. Both parties utilised two counsel and it
is appropriate that the costs
order include provision for this.
[7] In the result, the appeal is dismissed with costs,
such costs to include those consequent on the employment of two
counsel where
this was done.
________________________
GORVEN
AJA
ACTING
JUDGE OF APPEAL
Appearances
For
appellant: B Knoetze SC, with him JG Gilliland
Instructed
by: Van De Wall & Partners, Kimberley
Blair
Attorneys, Bloemfontein
For
respondent: P Zietsman SC, with him J Els.
Instructed
by: Phatshoane Henney Incorporated, Bloemfontein.
[1]
Insolvency Act 24 of 1936
.
Section 84
reads:
‘
(1) If any property was
delivered to a person (hereinafter referred to as the debtor) under
a transaction that is an instalment
agreement contemplated in
paragraph (a), (b), and (c) (i) of the
definition of 'instalment agreement' set
out in
section
1
of
the National Credit Act, 2005 (
Act
34 of 2005
),
such a transaction shall be regarded on the sequestration of the
debtor's estate as creating in favour of the other party to
the
transaction (hereinafter referred to as the creditor) a hypothec
over that property whereby the amount still due to him under
the
transaction is secured. The trustee of the debtor's insolvent estate
shall, if required by the creditor, deliver the property
to him, and
thereupon the creditor shall be deemed to be holding that property
as security for his claim and the provisions of
section 83 shall
apply.
(2)
If
the debtor returned the property to the creditor within a period of
one month prior to the sequestration of the debtor's
estate, the
trustee may demand that the creditor deliver to him that property or
the value thereof at the date when it was so
returned to the
creditor, subject to payment to the creditor by the trustee or to
deduction from the value (as the case may be)
of the difference
between the total amount payable under the said transaction and the
total amount actually paid thereunder.
If the property is delivered
to the trustee the provisions of subsection (1) shall apply.’