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

• Jurisdiction: South Africa

Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter
2004 (6) SA 491 (SCA)

2004 (6) SA p491

Citation	2004 (6) SA 491 (SCA)
Case No	219/03
Court	Supreme Court of Appeal
Judge	Scott JA, Zulman JA, Farlam JA, Conradie JA and Cloete JA
Heard	May 21, 2004
Judgment	May, 28 2004
Counsel	J J Goodey SC for the appellant.; No representation for the respondent.

Flynote : Sleutelwoorde D

Estoppel — By conduct — Requirements for representation by conduct clarified, and distinguished from those for E estoppel by representation — Person bound by representation constituted by conduct if representor ought 'reasonably to have expected' that representee might be misled by conduct and in addition representee acted reasonably in construing representation in sense in which he/she did — Test that representation has to be 'precise and unambiguous' or 'unequivocal' not applicable to F cases involving representation by conduct — If representation by conduct plainly ambiguous, representee not entitled to rely on one of possible meaning without making further enquiries to clarify position.

Vindication — Estoppel raised against owner — Owner's rei vindicatio defeasible by estoppel not only where owner made representation that third party G owner, but also where representation made that third party entitled to transfer ownership to representee.

Headnote : Kopnota

The test postulated in B & B Hardware (Pty) Ltd v Administrator, Cape 1989 (1) SA 957 (A) that 'in order to found an estoppel, a representation must be precise and unambiguous' H (followed in Saflec Security Systems (Pty) Ltd v Group Five Building (East Cape) (Pty) Ltd 1990 (4) SA 626 (E), in which the test was stated to be that the representation had to be 'unequivocal') is not applicable to cases involving a representation by conduct. A person may be bound by a representation constituted by conduct if (1) the representor ought reasonably to have expected that the representee might be misled by his conduct and (2) the representee I had acted reasonably in construing the representation in the way he or she did. (Paragraph [7] at 495A/B - B/C.) Nevertheless, if a representation by conduct is plainly ambiguous, the representee would not be acting reasonably if he chose to rely on one of the possible meanings without making further enquiries to clarify the position. (Paragraph [9] at 496D - E.) J

2004 (6) SA p492

An owner's rei vindicatio can be defeated by defence of estoppel not only when the representation made by the owner is that a A third party is the owner, but also where the representation is that the third party is entitled to transfer ownership to the representee. (Paragraph [10] at 496H - H/I.)

Cases Considered

Annotations

Reported cases B

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

Electrolux (Pty) Ltd v Khota and Another 1961 (4) SA 244 (W): dictum at 246A - C applied

Hartogh v National Bank 1907 TS 1092: referred to

Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) (Edms) Bpk 1996 (3) SA 273 (A): applied C

Monzali v Smith 1929 AD 382: dictum at 386 applied

Poort Sugar Planters (Pty) Ltd v Minister of Lands 1963 (3) SA 352 (A): dicta at 364F - G and 365A - C applied

Saflec Security Systems (Pty) Ltd v Group Five Building (East Cape) (Pty) Ltd 1990 (4) SA 626 (E): criticised D

Service Motor Supplies (1956) (Pty) Ltd v Hyper Investments (Pty) Ltd 1961 (4) SA 842 (A): dictum at 848G - H explained

Southern Life Association Ltd v Beyleveld 1989 (1) SA 496 (A): referred to

Strachan v Blackbeard & Son 1910 AD 282: dictum at 288 - 9 applied

Union National South British Insurance Co Ltd v Padayachee and Another 1985 (1) SA 551 (A): dictum at 561I - 562B applied E

Van Rooyen v Minister van Openbare Werke en Gemeenskapsbou 1978 (2) SA 835 (A): dictum at 849D - F applied

Woodhouse AC Israel Cocoa Ltd SA and Another v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 (CA) ([1971] 1 All ER 665): referred to

Woodhouse AC Israel Cocoa Ltd SA and Another v Nigerian Produce Marketing Co Ltd [1972] AC 741 (HL) ([1972] 2 All ER 271): compared. F

Case Information

Appeal against a decision of the Transvaal Provincial Division (Botha J and Patel J). The facts appear from the reasons for judgment.

J J Goodey SC for the appellant.

No representation for the respondent. G

Apart from the cases cited in the judgment of the Court, counsel for the appellant referred to the following authorities:

Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1977 (4) SA 310 (T) at 335 - 6

Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A) at 260

Martin v De Kock 1948 (2) SA 719 (A) at 735 H

Universal Stores Ltd v OK Bazaars (1929) Ltd 1973 (4) SA 747 (A) at 761

Harms Amler's Precedents of Pleadings 5th ed at 186 - 7.

Cur adv vult. I

Postea (May 28).

Judgment

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

2004 (6) SA p493

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...