AXZS Industries v a F Dreyer (Pty) Ltd and Others

• Jurisdiction: South Africa
• Citation: 2004 (4) SA 186 (W)

AXZS Industries v a F Dreyer (Pty) Ltd and Others
2004 (4) SA 186 (W)

2004 (4) SA p186

Citation	2004 (4) SA 186 (W)
Case No	2576/03
Court	Witwatersrand Local Division
Judge	Willis J
Heard	February 6, 2004; February 7, 2004; February 8, 2004; February 9, 2004; February 10, 2004
Judgment	February 11, 2004
Counsel	D W K Nigrini (with H Kriel) for the plaintiff.; M M Segal for the defendants.

Flynote : Sleutelwoorde B

Evidence — Parol evidence rule — Parol evidence tendered by third party to contract — When admissible — Admissibility dependent upon purpose for which tendered — Third party tendering evidence of C conflicting oral agreement antecedent to written contract — Parol evidence by third party to contract admissible to prove facts invalidating contract — Parol evidence of antecedent oral agreement thus admissible by third party to prove written contract not correct reflection of agreement between parties — On facts, antecedent oral agreement invalidating written document.

Ownership — Movable property — Transfer of — Requirements — Auction D sale — Transfer of ownership of movables requiring delivery plus agreement to transfer ownership — In respect of auction sale, delivery taking form of traditio longa manu at auction premises or constitutum possessorium on date of confirmation of sale — Agreement to transfer ownership not necessarily taking form of contract of auction sale — On facts, ownership passing and plaintiff succeeding in rei vindicatio. E

Headnote : Kopnota

The plaintiff instituted a rei vindicatio for delivery to it of certain goods in the defendants' possession. In defence of the action, the defendants denied the plaintiff's ownership of the goods. The first and second defendants were trustees of a trust into which fell the immovable property of the company of which the F third defendant was provisional liquidator. The plaintiff claimed to have acquired ownership of the goods from the now-liquidated company by virtue of a contract of sale. The plaintiff alleged a written agreement of sale and an antecedent oral agreement. The written agreement, it alleged, had been concluded pursuant to an auction sale and had been confirmed by the plaintiff and the provisional liquidators of the seller and now-liquidated company. It alleged that the written G agreement did not reflect correctly the agreement between the parties in that the annexed list of items sold on auction did not include the goods in question, and that the true agreement between them had been contained in the antecedent oral agreement. The defendants denied the oral agreement. The plaintiff had taken possession of the goods and paid the agreed purchase price. By the time of the present action, possession of the goods had been restored to the defendants. H

Held, that it was clear from the conduct of the plaintiff after the confirmation of the auction that it had taken possession and control of the goods and that delivery to the plaintiff took place. (Paragraph [13] at 191D.)

Held, further, as to the defendants' denial of the oral agreement, that there would have to have been an agreement to conduct the auction and, inevitably, that agreement had to have been oral. (Paragraph [13] at 191F - G.) I

Held, further, that it was clear from the large number of goods sold on auction and the fact that an auction took place, that delivery of sold goods took the form of traditio longa manu at the fall of the auctioneer's hammer. Alternatively there had been constitutum possessorium on the date of confirmation of the written agreement by the plaintiff and the provisional liquidators of the third defendant. (Paragraph [15] at 192D.) J

2004 (4) SA p187

Held, further, that evidence as to the antecedent oral agreement could be allowed precisely because it appeared that the A plaintiff's case had been that what had been agreed between the parties had not been correctly reflected in the written agreement. (Paragraph [15] at 192E.)

Held, further, that, as an exception to the general exclusion of parol evidence, parol evidence by a third party to a contract was admissible to show 'some invalidating facts which would be available to the parties themselves'. The plaintiff's evidence had B been led precisely to show that there were 'some invalidating facts', viz that the written agreement did not reflect the true intention of the parties. The true intention had been that the goods in question be sold to the plaintiff. It seemed that the plaintiff would have succeeded had the first and second defendants been parties to the written agreement and had the plaintiff sought rectification of that C agreement. (Paragraph [17] at 193J - 194B and 194F - G.)

Held, further, that rectification could only be sought against the parties to an agreement. Presumably, that was why the plaintiff had not attempted to seek rectification against the defendants. It did not have to do so, but that did not mean that it could not lead evidence as to the true nature of the agreement. It had to be entitled to show 'some invalidating facts which would be D available to the parties themselves' and thus to show the 'truth and the whole truth of the contractual obligations' between itself and the provisional liquidators and the auctioneer. (Paragraph [19] at 195A - B/C.)

Held, further, that the plaintiff had clearly established that the annexure to the agreement which contained the list of items E sold had been a mutual or common mistake between the parties since it did not contain all the movable assets forming the subject-matter of the agreement. (Paragraph [20] at 195E - E/F.)

Held, further, that the oral agreement concluded between the parties prior to the holding of the auction had determined which goods had been intended to be sold to the plaintiff and those goods included the goods which formed the subject-matter of the present dispute. F (Paragraph [20] at 195F/G - G.)

Held, further, that for a transfer of ownership in movables there had to be delivery plus an agreement that ownership be transferred from the transferor to the transferee. On the facts of the present case, the plaintiff had taken possession of the goods at the auction premises (traditio) as well as an agreement to transfer the real right of ownership in the goods from the transferor to the transferee. This agreement did not have to be the written G agreement. Even if the written agreement had been valid and binding, it still did not have to have been the necessary agreement giving transfer of ownership. The plaintiff's claim was not based on contract. It was based on a claim of ownership which could have arisen and, in the present case, did arise, independently of the written agreement. (Paragraph [21] at 196A - B and 196C - F.) H

Held, accordingly, that the defendants be ordered to deliver the goods in question to the plaintiff. (Paragraph [24] at 12.)

Cases Considered

Annotations

Reported cases I

Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein en 'n Ander 1980 (3) SA 917 (A): dictum at 922E - F applied

Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A): dictum at 933B - C applied

Industrial Finance and Trust Co (Pty) Ltd v Heitner and Another 1961 (1) SA 516 (W): dictum at 522H applied J

2004 (4) SA p188

Johannesburg Municipal Council v Rand Townships Registrar and Others 1910 TS 1314: dictum at 1320 A applied

Neuhoff v York Timbers Ltd 1981 (4) SA 666 (T): referred to

Smith v Farrelly's Trustee 1904 TS 949: dictum at 958 applied

Town Council of Heidelberg v Kerkraad van die Nederduitsch Hervormde of Gereformeerde Gemeente, Heidelberg 1930 TPD 543: dictum at 553 - 4 applied B

Traub v Barclays National Bank Ltd; Kalk v Barclays National Bank Ltd 1983 (3) SA 619 (A): dictum at 630A - 631A applied

Trust Bank van Afrika Bpk v Western Bank Bpk en Andere NNO 1978 (4) SA 281 (A): dictum at 301H - 302A applied

Tschirpig and Another v Kohrs 1959 (3) SA 287 (N): dictum at 290C - F applied C

Van der Westhuizen v Santam Versekeringsmaatskappy Bpk 1975 (1) SA 236 (E): dictum at 240H - 241D applied

Von Ziegler and Another v Superior Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 (T): referred to

Weinerlein v Goch Buildings Ltd 1925 AD 282: referred to. D

Case Information

Rei vindicatio for delivery of movables. The facts appear from the judgment of Willis J.

D W K Nigrini (with H Kriel) for the plaintiff.

M M Segal for the defendants. E

Cur adv vult.

Postea (February 11).

Judgment

Willis J: F

[1] The plaintiff claims an order against the first and second defendants in the following terms:

'1.

Delivery of all the goods more fully described as follows:

1.1

Three dust extraction units and fans including duct extracting ducting;

1.2

One SSR 2000 Ingersoll Rand and one Atlas Copco compressor including connecting compressed air pipes thereto (the goods); G

2.

An order authorising and directing the sheriff to seize and deliver the goods to the plaintiff in the event of the defendants failing or refusing to deliver the goods to the plaintiff within a time stipulated by the above Honourable Court together with costs.'

In view of the fact that the first and second defendants have admitted the possession of the goods in question, the plaintiff does H not persist with its alternative claim.

[2] The third defendant is the provisional liquidator of A F Dreyer and Co (Pty) Ltd, a company in which the first defendant had a share-holding and was a director prior to its I liquidation. The second defendant is the wife of the first defendant. The third defendant was duly served with a copy of the summons and has never entered any appearance to defend. Prior to the appointment of the third defendant as liquidator, other parties had been appointed as provisional liquidators. The...