Pettersen and Others v Sorvaag

• Jurisdiction: South Africa
• Citation: 1955 (3) SA 624 (A)

Pettersen and Others v Sorvaag
1955 (3) SA 624 (A)

1955 (3) SA p624

Citation	1955 (3) SA 624 (A)
Court	Appellate Division
Judge	Hoexter JA, Fagan JA and Steyn JA
Heard	May 26, 1955; May 27, 1955
Judgment	June 9, 1955

Flynote : Sleutelwoorde F

Fixtures — Movable or immovable — Pre-fabricated house from Norway erected by Norwegian on another's property — All interested G parties regarding it as a movable — Not a fixture.

Headnote : Kopnota

In an action for damages an important issue was whether a house which had been destroyed by fire was a movable or an immovable. The house was a pre-fabricated one which had been brought from Norway, where it was regarded as a movable by a Norwegian who had erected it on property belonging to another; it was very heavy and probably incapable of being H moved as a unit but was so constructed that it could be taken to pieces which could be removed and put together again on another site; in the process of assembling the house the parts, which were of wood and iron, had been fitted into one another but nails had also been used. In its completed state it was a large double-storied house of 14 rooms in all resting upon a brick or concrete foundation without being fixed to it. The trial Judge having found, on the evidence, that it had been erected for a permanent purpose, in an appeal,

1955 (3) SA p625

Held, regard being had finally to the fact that the house appeared to have been regarded as a movable by all the persons who had any interest in it, that the respondent had established that the house was a movable.

The decision in the Cape Provincial Division in Sorvaag v Pettersen and Others reversed on this point, but the appeal was disinissed with costs and a cross-appeal on the quantum of damages allowed with costs. A

Case Information

Appeal from a decision in the Cape Provincial Division (HERBSTEIN, J.). The facts in so far as are material to this report appear from the judgment of HOEXTER, J.A.

F. S. Smuts, for the appellants (respondents in the cross-appeal): Respondent failed to prove his ownership of the house in question as the B evidence established that the house was an immovable and the ground on which it stood was never registered in respondent's name. As to the factors to be considered when determining whether a structure is an immovable or a movable. See Olivier and Others v Haarhof & Co., 1906 T.S. 497; MacDonald Ltd v Radin, N.O. and Another, 1915 AD 454; C Newcastle Collieries Co. Ltd v Borough of Newcastle, 1916 AD at p. 564; van Wezel v van Wezel's Trustee, 1924 AD 409; R v Mabula, 1927 AD 161; Cairncross v Nortje, 21 S.C. 127; Venter v Graham and Muller, 23 S.C. 729; Smyth v Furter, 24 S.C. 424. As the house could not be owned apart from the ground on which it stood, respondent was not the owner of the house and his claim should therefore have been D dismissed; see van Wezel's case, supra at p. 417. On the pleadings, the Court a quo was not entitled to give judgment for respondent on the basis that he was a bona fide possessor. Respondent's possession and the bona fides of such possession were never in issue on the pleadings nor were they canvassed fully by appellants. See Cole v Government of the Union of S.A., 1910 AD at pp. 272 - 3. If it be held that respondent E was entitled to succeed if shown to be a bona fide possessor, the Court a quo erred in holding that he was such a possessor. As to bona fide possession, see Grotius, Introduction to Dutch Jurisprudence, 2.2.10. There is, in any event, no evidence of negligence on the part of the caretaker; see Voet, 9.2.20; Schorer's Note to Grotius, Introduction to Dutch Jurisprudence, 3.8.4.

H. W. Levy, for the respondent (appellant in the cross-appeal): The question whether a structure is movable or immovable is one which depends on the circumstances of each case. As to the points chiefly to be considered, see Olivier and Others v Haarhof & Co., 1906 T.S. 497; MacDonald Ltd v Radin, N.O. and Another, 1915 AD 454, 467, 477 - 8; G Wille, Landlord and Tenant in South Africa (p. 274); Spreeth v Lazarus, 1944 CPD at p. 82; Gault v Behrman, 1936 T.P.D. 37. On the facts, there is a presumption that the annexation was for a temporary and not for a permanent purpose, as it was not 'incorporated' into the land; see Wille, supra p. 276. If the intention cannot be ascertained H one way or the other, the onus is on the person alleging a change of character to prove such change. There is a presumption of fact that there is a continuance of a particular state of affairs; see R v Fourie and Another...