B & B Hardware Distributors (Pty) Ltd v Administrator, Cape, and Another

• Jurisdiction: South Africa
• Citation: 1989 (1) SA 957 (A)

B & B Hardware Distributors (Pty) Ltd v Administrator, Cape, and Another
1989 (1) SA 957 (A)

1989 (1) SA p957

Citation	1989 (1) SA 957 (A)
Court	Appellate Division
Judge	Rabie ACJ, Hoexter JA, van Heerden JA, Grosskopf JA, Eksteen JA
Heard	November 3, 1988
Judgment	December 1, 1988

Flynote : Sleutelwoorde B

Estoppel — By representation — Such raised as a defence — What defendant must allege and prove — Defendant a juristic person (a Provincial Administration) — Incapable itself of holding a belief, C or making a decision — It necessarily has to act through its officials — Such a defendant therefore has to adduce evidence by an official or officials that he or they, representing the defendant, believed the representation by the plaintiff which he or they relied on to be true and that he or they acted to the prejudice of the defendant D in reliance thereon — No such evidence adduced — Failure by defendant Administration to establish defence of estoppel.

Headnote : Kopnota

The Cape Provincial Administration (the first respondent) had entered into an agreement with a construction company (T) in terms of which T was to erect a hospital. The appellant, trading as a supplier E of ironmongery, had complied with an order from T to supply certain goods subject to the appellant's 'standard terms and conditions', one of which was that ownership in the goods would remain vested in the appellant until the purchase price had been paid to the appellant. T had been liquidated the following year without any such payment having been made to the appellant. The appellant had thereafter written to the F liquidators of T cancelling its agreement with T and demanding the return of the goods. A month later the first respondent entered into an agreement with the second respondent in terms of which the latter was to complete the erection of the hospital. Thereafter the first respondent entered into an agreement with the liquidators in terms of which T sold its plant and equipment to the second respondent. In reply to the appellant's demand for return of the goods, the liquidators' attitude was that they had no interest in the goods and that the first respondent had become the owner thereof. The attitude of the first respondent was G that it had paid T for the goods, considered itself the owner thereof and was not prepared to give an undertaking that the goods would not be used in the construction of the hospital. On the return day of a rule nisi calling upon the respondents to show cause why the appellant should not be declared to be the owner of the goods and why the respondents should not be ordered to hand over the goods, a Provincial Division had held that the appellant was the owner of the goods but that it was estopped from asserting its ownership therein. The Court a quo had H accordingly discharged the rule nisi with costs. In an appeal, the Court, after rejecting on the evidence a fresh contention attacking the finding that the appellant was the owner of the goods, dealt with the first appellant's contentions which were devoted solely to the issue of estoppel, ie the issue on which the Court a quo had held that the appellant had delivered the goods to T for the purpose that they be installed in the building which T was engaged upon erecting, in which I event the goods would accede to the building, and that the appellant must have contemplated that the goods would be at the building site in circumstances no different from other building materials and thus with the appellant's consent in such a manner as to proclaim that the dominium or jus disponendi thereof vested in T. The Court a quo had accordingly held that the appellant had clothed T with the apparent authority vis-a-vis the first respondent to dispose of the goods as if they were part of T's materials and that that representation by conduct on the part of the appellant had been negligently made - at the J very least, in order to protect itself, the

1989 (1) SA p958

A appellant should have informed the first respondent or the architect of the terms of the agreement between itself and T. The Court a quo had accordingly held that the appellant was estopped from asserting its rights to the goods concerned.

Held, that in order to found an estoppel a representation had to be precise and unambiguous and that it was doubtful whether it could be said that the appellant, by delivering the goods at the building site B without informing the first respondent of its reservation of ownership in the goods, clearly and unambiguously represented to the first respondent that T was the owner of the goods or that it had the jus disponendi in respect thereof.

Held, further, that a person who raised a defence of estoppel had to allege and prove that he relied on the representation made to him by the person against whom the defence was raised and that, in doing so, he had acted to his detriment.

Held, further, that the first respondent, being a juristic person, necessarily had to act through its officials or other C persons representing it: it could not by itself hold a belief or make a decision.

Held, further, therefore, that the Court would have expected the first respondent, if it had intended to raise a plea of estoppel, to have put before it evidence by an official, or officials, to the effect that he, or they, representing the first respondent, had believed the representation contended for by the first respondent to be true and had acted in reliance thereon: there was however no such evidence.

D Held, further, therefore, that the first respondent had failed to establish that it had relied on the representation allegedly made by the appellant, and that such reliance had caused it to act to its prejudice.

Held, accordingly, that the order made by the Court a quo had to be set aside and the respondents ordered to return to the applicant all the goods concerned which had, at the date of the application, not been incorporated in the building erected by T in terms of its agreement E with the first respondent; the respondents to pay appellant's costs jointly and severally.

The decision in the Eastern Cape Division in B & B Hardware Distributors (Pty) Ltd v Administrator, Cape, and Another reversed.

Case Information

Appeal from a decision in the Eastern Cape Division (Jennett J). The facts appear from the judgment of Rabie ACJ.

F P A Solomon for the appellant referred to the following authorities: Marcus v Stamper and Zoutendijk 1910 AD 58 at 78; Groenewald v Van der Merwe 1917 AD 233 at 238 - 9; Weeks and Another v Amalgamated Agencies Ltd 1920 AD 218 at 230 - 1; Commissioner of Customs and Excise v Randles, Brothers and Hudson Ltd 1941 AD 369 at 410 - 11; R v Markins Motors (Pty) Ltd and Another 1959 (3) SA 508 (A) at 512; Air-Kel (Edms) G Bpk h/a Merkel Motors v Bodenstein en 'n Ander 1980 (3) SA 917 (A) at 922F; Terry v Senator Versekeringsmaatskappy Bpk 1984 (1) SA 693 (A) at 697H - 698A; Peterson v Cuthbert & Co Ltd 1945 AD 420 at 428 - 9; Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 - 5; Da Mata v Otto NO 1972 (3) SA 858 (A) at 882D - H H; Plascon-Evans Paint Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C; Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (A) at 23I - 24C; Standard Vacuum Refining Co of SA (Pty) Ltd v Durban City Council 1961 (2) SA 669 (A); Theatre Investments (Pty) Ltd and Another v Butcher Bros Ltd 1978 (3) SA 682 (A); Melcorp SA v Joint Municipal Pension Fund (Transvaal) 1980 (2) SA 214 (W) at 220B - I 224C; Oakland Nominees Ltd v Gelria Mining & Investment Co Ltd 1976 (1) SA 441 (A) at 452; Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (A) at 427D; Standard Bank of South Africa Ltd v Coetzee 1981 (1) SA 1131 (A) at 1135D - G and 1145E - H; Spencer Bower Actionable Misrepresentation 6th ed at 54 et seq ; Weiner v Gill [1905] 2 KB 172; Truma v Attenborough 103 LT 118; Bold v Cooper 1949 (1) SA 1195 (W) J at 1200 - 1; Union Government

1989 (1) SA p959

v National Bank of SA Ltd 1921 AD 121; Ross v Barnard 1951 (1) SA 414 (T) at 418E - 419; Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A); Martin v De Kock 1948 (2) SA 719 (A) at 735; Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A); Joubert (ed) Law of South Africa vol 9 para 371 at 194; Electrolux v Khota and Another 1961 (4) SA 244 (W) at 247; Brockman v TCD Motors 1949 (4) SA 418 (T) at 424 - 5; Standard Bank of SA Ltd v Stama (Pty) Ltd B 1975 (1) SA 730 (A) at 743B - D as inserted by 1975 (4) SA 965; G P Quail The Building Contract. A

L E Leach for the first respondent referred to the following authorities: Oakland Nominees Ltd v Gelria Mining and Investment Co Ltd C 1976 (1) SA 441 (A) at 452; Thompson v Voges 1988 (1) SA 691 (A) at 709H; United Cape Fisheries (Pty) Ltd v Silberman 1951 (2) SA 612 (T); Electrolux (Pty) Ltd v Khota and Another 1961 (4) SA 244 (W); Akojee v Sibanyoni and Another 1976 (3) SA 440 (W); Zandberg v Van Zyl 1910 AD 302 at 308; Vasco Drycleaners v Twycross 1979 (1) SA 603 (A) at 615.

D A J G Lang for the second respondent referred to the following authorities: Hoffmann and Zeffertt South African Law of Evidence 3rd ed at 229, 231; Hutton v Watling [1948] Ch 389 ([1948] 1 All ER 803); Gordon Wilson (Pty) Ltd v Barkhuizen 1947 (2) SA 244 (O); Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43; Johnston v Leal 1980 (3) SA 927 (A) at 944; Grosvenor Motors (Pty) Ltd v Douglas 1956 (3) SA 420 (A); Johaadien v Stanley Porter (Paarl) (Pty) Ltd E 1970 (1) SA 394 (A); Oakland Nominees Ltd v Gelria Mining and Investment Co Ltd 1976 (1) SA 441 (A); Joubert (ed) The Law of South Africa (Butterworths) vol 9 para 382 at 203.

Cur adv vult.

F Postea (December 1).

Judgment

Rabie ACJ:

On the...