Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter

• Jurisdiction: South Africa
• Judge: Scott JA, Zulman JA, Farlam JA, Conradie JA and Cloete JA
• Court: Supreme Court of Appeal
• Citation: 2004 (6) SA 491 (SCA)
• Docket Number: 219/03
• Counsel: J J Goodey SC for the appellant. No representation for the respondent.
• Hearing Date: 21 May 2004

Cloete JA:

[1] The sole issue in the present appeal is whether the appellant is estopped from vindicating paving stones of which it is the owner and J

Cloete JA

which are in the respondent's possession. The magistrate held that it is not. The Pretoria High Court (Botha J, Patel J A concurring) reversed the decision but granted leave to appeal to this court.

[2] The facts fall within a small compass. The appellant manufactures and supplies paving stones. One of its customers was a builder, Mr Van Dyk, who traded as Polokwane Homes. The builder purchased the paving stones from the appellant. The purchase was B governed by the following clause in the appellant's standard credit application form which had previously been completed by the builder:

'The ownership in the goods supplied shall remain vested in the supplier until date of payment. The supplier shall be entitled to repossess all goods not paid for.' C

The appellant knew, through its salesman Mr Uys, who concluded the contract with the builder for the purchase of the paving stones, that they were going to be used by the builder to cover the parking area for a building and that they were required with some urgency for that purpose. The building site was owned by the respondent, with whom the builder had concluded a contract for the erection of the building D and for paving of the adjacent parking area. As Uys knew, the colour chosen for most of the paving stones from samples taken by him to the site and shown to the respondent, was 'apricot', to match the building. Some of the paving stones were collected by the builder from the appellant's premises and some were delivered by the appellant E directly to the site. They were laid on site, which involved a number being cut to fit the terrain and layout and a consequential high degree of wastage resulted. The respondent formally admitted at the trial that the paving stones remained movables. The respondent paid the builder for the works executed by him, which included the paving stones. He testified that had he been aware of the reservation of F ownership clause, he would have ensured that the appellant was paid, and this evidence was not challenged. The builder did not pay the appellant and his estate was sequestrated.

[3] The appellant brought a rei vindicatio against the respondent for the return of the paving stones. The respondent countered with a plea of estoppel. G

[4] The respondent was not represented before this court, but did not concede the merits of the appeal. The primary question raised by the appellant's counsel was whether the appellant made a representation which could found an estoppel. The Court a quo reasoned as follows: H

'Ek vind dit moeilik om in te sien watter ander indruk die eiser kon geskep het, deur plaveistene op 'n bouperseel aan 'n boukontrakteur af te lewer, stene wat getoets is om in kleur by ander stene aan te pas, as dat die kontrakteur ten minste by magte was om oor die stene te beskik. Die enigste logiese afleiding onder die omstandighede was dat die kontrakteur die stene op die perseel vir die bouheer sou installeer. Onvermydelik het dit die gevolg gehad dat hy in I die proses die stene aan die bouheer verkoop het. Daar was tussen die verweerder en die kontrakteur geen sprake van 'n voorbehoud van eiendomsreg nie. . . . Die eiser het geen kennis gedra van wat die reëlings tussen die verweerder en die kontrakteur was nie. Die eiser het geweet dat die bouheer nie vir hom nie, maar vir die kontrakteur sou betaal. Onder die omstandighede meen ek dat die J

Cloete JA

waarskynlikhede daarop dui dat daar wel met die lewering van die stene op die perseel A 'n voorstelling was dat die kontrakteur by magte was om oor die stene te beskik.'

[5] The appellant's counsel submitted that this reasoning was wrong and relied on a passage in B & B Hardware Distributors (Pty) Ltd v Administrator, Cape, and Another 1989 (1) SA 957 (A), subsequently followed by Kannemeyer JP in Saflec Security Systems (Pty) Ltd v Group Five Building (East Cape) (Pty) Ltd 1990 (4) SA 626 (E). B In B & B, which was a case concerning representation by conduct, Rabie ACJ said at 964I - 965B:

'In order to found an estoppel, a representation must be precise and unambiguous. (See Hartogh v National Bank 1907 TS 1092 at 1104, and the judgment of this Court in the case of The C Southern Life Association Ltd v L C van Deventer Beyleveld NO; delivered on 22 September 1988 [1989 (1) SA 496 (A)].) In...