Concor Construction (Cape) (Pty) Ltd v Santambank Ltd

• Jurisdiction: South Africa
• Judge: Joubert JA, Smalberger JA, Milne JA, Nicholas AJA and Kriegler AJA
• Judgment Date: 02 June 1993
• Citation: 1993 (3) SA 930 (A)
• Hearing Date: 17 May 1993
• Court: Appellate Division

Milne, JA.:

On 17 September 1981 a Caterpillar 631B road scraper ('the G scraper') was damaged in a collision with a truck driven by an employee of the appellant acting within the course and scope of his employment. The sole cause of the collision was the negligence of this employee. The respondent sued the appellant for damages in the sum of R54 000, alleging that at all times material it was the owner of the scraper. (I shall refer to the appellant as the defendant and to the respondent as the plaintiff.)

H The scraper was one of three sold by the plaintiff for R87 500 to J J P Steenkamp ('Steenkamp') and his brother in terms of a hire-purchase agreement dated 11 May 1979 ('the hire-purchase agreement'). The full purchase price had not been paid at the date of the collision. The Steenkamps leased the scrapers to the defendant and the terms of this I agreement ('the lease agreement') were reduced to writing on 30 May 1979.

The defendant's plea put in issue the allegation that the plaintiff was the owner and also put in issue all the plaintiff's allegations relating to damages. Judgment was granted to the plaintiff in the amount claimed. The defendant appeals with leave of the Court a quo (Selikowitz J).

In the absence of proof that it was the owner at the time of the J collision,

Milne JA

A the plaintiff's claim could not succeed. I accordingly deal with this aspect of the matter first. In its further particulars for trial the plaintiff alleged that it acquired the scraper from Spie Batignolles ('Spie'). The plaintiff accordingly alleges that it derived its ownership from Spie. The scraper is a movable. The derivative mode of acquisition of ownership on which the plaintiff relies is delivery. The requirements for B the passing of ownership by delivery include, inter alia, (a) that the transferor must be capable of transferring ownership; (b) delivery must be effected by the transferor with the intention of transferring ownership and taken by the transferee with the intention of accepting ownership; and (c) payment where the sale is a cash sale. Joubert (ed) The Law of South Africa vol 27 para 165. In Lendalease Finance (Pty) Ltd v Corporacion de C Mercadeo Agricola and Others 1976 (4) SA 464 (A) at 489H it was held that

'. . . ownership cannot pass by virtue of the contract of sale alone: there must, in addition, be at least a proper delivery to the purchaser of the contract goods . . .'

D and at 490A that

'. . . under a cash sale ownership is normally taken to have been intended to pass once there has been, in addition to delivery, due payment of the purchase price . . .'.

In Trust Bank van Afrika Bpk v Western Bank Bpk en Andere NNO 1978 (4) SA 281 (A) E at 301H-302A it was held that:

'Volgens ons reg gaan die eiendomsreg op 'n roerende saak op 'n ander oor waar die eienaar daarvan dit aan 'n ander lewer, met die bedoeling om eiendomsreg aan hom oor te dra, en die ander die saak neem met die bedoeling om eiendomsreg daarvan te verkry. Die geldigheid van die eiendomsoordrag staan los van die geldigheid van enige onderliggende F kontrak.'

It is clear, however, from the passage at 302G-H and the reliance upon the judgment of Centlivres JA in Commissioner of Customs and Excise v Randles, Brothers & Hudson Ltd 1941 AD 369 at 411 that the legal transaction preceding the delivery may be evidence of an intention to pass and acquire G ownership. Equally, the absence of such an agreement may, depending upon the circumstances, be evidence of the absence of any such intention. What is required for the transfer of ownership of movables is further analysed in Air-Kel (Edms) Bpk h/a Merkel Motors v Bodenstein en 'n Ander 1980 (3) SA 917 (A) at 922E-F where Jansen JA said:

'Blote ooreenkoms kan dus nie eiendomsreg oordra nie - traditio H (oorhandiging) moet ook geskied; en omgekeerd, blote oorhandiging is ook nie voldoende nie -

dit moet gepaard gaan met 'n ooreenkoms tussen oorhandiger en ontvanger dat daarmee eiendomsreg gegee en geneem word.'

After examining the meaning of traditio in our law, the following I conclusion is reached at 923H-in fine:

'. . . dat traditio neerkom op 'n besitsoordrag - hetsy met 'n verskuiwing van die regstreekse daadwerklike beheer van een persoon na 'n ander, hetsy daarsonder. In lg geval geskied daar geen verandering van persoon wat die regstreekse beheer betref nie, maar daar vind tog 'n besitsverskuiwing plaas deur ooreenkoms, op grond van toepassing van die leerstuk van middellike besit.

J Om eiendomsreg van 'n roerende saak oor te dra moet daar dus die nodige

Milne JA

A saaklike ooreenkoms wees (soos hierbo genoem) en ook traditio in die sin in die vorige paragraaf verduidelik.'

As I understood the argument on behalf of the appellant, it was contended that the plaintiff had failed to establish on a balance of probabilities

(a)

B that Spie was the owner of the scraper;

(b)

that there had been delivery to the plaintiff by Spie intending to transfer ownership to the plaintiff or the acceptance of delivery by the plaintiff intending to acquire ownership; and

(c)

that there had been proof of payment.

C It is necessary to analyse the pleadings and the evidence in order to test the validity of these submissions. As already mentioned, the plaintiff alleged in its particulars for trial that it acquired the scraper from Spie. It also alleged (by necessary implication) that this was in terms of a 'verbal' agreement entered into on or about 10 May 1979 D at Johannesburg, alternatively Calvinia. The plaintiff alleged that it acquired the scraper 'via the agency of W Marsay & Sons (Pty) Ltd of 341 Oak Avenue, Ferndale, Johannesburg' and that the price was to be paid in cash on delivery. The scraper was alleged to have been at Langebaan, Cape, in the custody of W Marsay & Sons (Pty) Ltd ('Marsay') 'for...