KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK 25

1996 (3) SA 273 AD

not always have been necessary or have been in the present context. The A
comments of Van den Heever JA in Benson and Another v Walters and
Others 1984 (1) SA 73 (A) at 86C-D, in my opinion, are a strong
indication that the Appeal Court also regards it as a healthy principle. I
also do not interpret the judgment of Thirion J in HMBMP Properties
(Pty) Ltd v King 1981 (1) SA 906 (N) as a rejection of the principle. That g
case concerned the commencement o f prescription in respect o f a claim
for damages which allegedly rose on repudiation of a contract. Thirion J
points out at 91 ID that repudiation in itself does not complete the
plaintiff’s cause o f action [262], but that it depends on whether the
creditor accepts the repudiation. That point of view, with respect, is
correct (see eg Culverwell and Another v Brown 1990 (1) SA 7 (A) at C
161—17B, Metalm.il (Pty) Ltd v AECI Explosives and Chemicals Ltd 1994
SA 673 (A) at 685E-G). The argument based on the principle under
discussion here, was not rejected in that case because the principle does
not exist, but because it was not applicable to the facts.
Even if my simpler approach to the case, based on the meaning o f the p
word claimable, should be incorrect, I would still uphold the special plea
and dismiss the claim with costs on the basis o f the principle that a
creditor cannot postpone the commencement of prescription by means
of his unilateral arbitrary conduct.
The order which I therefore make is that the defendant’s obligation to
grant the plaintiff a pension has been extinguished by prescription. The E
claim is therefore dismissed with costs.

KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS G

EN KIE (WP) BPK
APPELLATE DIVISION
BOTHA JA, E M GROSSKOPF JA, NIENABER JA, MARAIS JA and SCOTT JA
H
1996 March 7, 27 Case No 362/94
1996 (3) SA 273 (A)

Appeal from a decision in the Cape Provincial Division (Van der

Westhuizen AJ). The facts appear from the judgment of Nienaber JA. |
J J Botha for the appellant (plaintiff).
W de Haan for the respondent (defendant).
Apart from the authorities cited in the judgment of the Court, counsel
for both parties referred to the following authorities:
Barclays Western Bank Ltd v Fourie 1979 (4) SA 157 (K) J
 26 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK
NIENABER JA 1996 (3) SA 273 AD

A Borstlap v Spangenberg en Andere 1974 (3) SA 695 (A) op 704F-H

K alil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) op 981D-G
Melcorp SA (Pty) Ltd v Joint Municipal Pension Fund (Transvaal) 1980 (2)
SA 1214 (W) op 223C
Saflec Security Systems (Pty) Ltd v Group Five Building (East Cape) (Pty) Ltd
1990 (4) SA 626 (OK)
B Senekal v Roodt 1983 (2) SA 602 (T)
Southern Life Association Ltd v Beyleveld N O 1989 (1) SA 496 (A) op 5031
Western Bank Bpk v Trust Bank van Afrika Bpk en Andere N N O 1977 (2) SA
1008 (O) op 1021C-E.

Cur adv vult.

C
Postea (March 27).

Nienaber JA:
q Introduction
The appellant., a company, is the owner of the farm Konstanz in the
Jonkershoek Valley, Stellenbosch. Its manager, Kriel, concluded an
agreement with a close corporation, Pumps for Africa CC (Pumps for
Africa), represented by a certain Killian, to install an irrigation and
£ circulation system (the system) on the farm. Pumps for Africa bought the
components for the system, consisting o f pumps, pipes, key pieces,
valves, etc from the respondent, a wholesaler in Bellville, represented by
a certain Joubert. In terms of the agreement the respondent preserved
ownership of the equipment sold pending payment of the full purchase
price by Pumps for Africa. The respondent delivered the goods to Pumps
^ for Africa, Pumps for Africa installed the system on the appellant’s farm;
the appellant paid Pumps for Africa; but Pumps for Africa failed to pay
the respondent. The respondent obtained default judgment against
Pumps for Africa in the Cape Provincial Division in.case no 8805/93 for
payment of the amount of R34 176,18 together with interest and costs.
G It was further ordered:
‘3. Should payment not be made within 10 days o f judgment:
3.1 defendant is directed to return the goods purchased as set
out in annexures “ E” to “ Y” within three days,
3.2 failing compliance with 3.1 the Deputy Sheriff is to attach
L, and deliver the aforesaid goods to plaintiff.’
In execution o f the Court order the deputy sheriff attempted to attach
the equipment on the appellant’s property. His return reads, inter alia:
C
I thereupon judicially attached the list of articles mentioned in the document
“ E -Y ” but did not remove them on the client’s instructions as parts were built
in on the abovementioned farm.’
^ The appellant launched an application in the Cape Provincial Division
that the earlier judgment be rescinded and furthermore requested an
order
‘declaring that the abovementioned applicant is the owner of all of
the items referred to in the said order and which are at present in the
J applicant’s possession’ .
 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK 27
NIENABER JA 1996 (3) SA 273 AD

Before the application was heard, the parties represented by their A

respective counsel concluded an agreement with inter alia the following
purport:
‘For purposes of the adjudication of this application the parties agree that the
respondent’s claim in accordance with this honourable Court’s order of all the
components of the irrigation system which were bought from the respondent by □
Pumps for Africa and installed on the applicant’s farm by Pumps for Africa
should be regarded as if the respondent claims those components with the rei
vindicatio from applicant. [279] Any order which is made in this application shall
therefore have the same legal consequences as it would have had, had the
respondent claimed the components with the rei vindicatio.’
Two issues in particular are involved: Q
(1) did the equipment become part of the appellant’s property
through accessio
(2) is the respondent precluded by estoppel from invoking its
reservation o f ownership?
The Court a quo (Van der Westhuizen AJ) decided both issues in
favour of the respondent. The following order was made:
‘(a) Applicant’s application is dismissed and the respondent’s rei vindicatio
succeeds. Applicant is ordered to allow respondent to remove the items
installed in the pumphouse on the farm Konstanz and specified in
annexures E and Y of the court order issued in case No 8805/93 in the
case between Wm Spilhaus & Co (WP) Ltd and Pumps for Africa CC [r
subject to paras (b) and ( z) infra.
(b) Respondent is ordered to carry out the removal of the said items with
great care and immediately to repair any damage which may be caused to
the pumphouse (or any other components which are not removed).
(c) Respondent must give reasonable notice to the applicant of its intention
to remove the said items. Such period may not be less than 10 days and p
need not be more than 30 days in order to enable applicant to acquire
replacement components timeously.
(d) Applicant is ordered to pay the respondent’s costs in the action.’
It is against these orders that the applicant now appeals to this Court
with the leave of the Court a quo.
G
Accessio
The first question is whether the system became part of the land. If it
in fact didj the appellant is the owner thereof and the appeal must
succeed without more ado. If not, the respondent was still the owner of
the particular items and this raises the second question whether the H
respondent’s claim for the return thereof is not thwarted by the
appellant’s reliance on estoppel.
The system was designed and installed by Killian o f Pumps for Africa.
It is served by a reservoir which was built according to the design o f a
landscape architect at a cost o f approximately R 400 000. On the one ,
hand the dam is used for irrigation of a garden area of approximately 1,5
hectares and on the other hand for a trout hatchery. The circulation
system serves to regulate the oxygen content in the water for the trout.
The whole system is controlled by a computer. A pumphouse was built
at a cost o f approximately R 15 000 and was supplied with electricity. It
is a brick building with a slate roof, a sturdy foundation and a concrete J
 28 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK
NIENABER JA 1996 (3) SA 273 AD

A floor. Two pumps are anchored with bolts to the concrete floor in the
pumphouse. The pumps are powered by two electric motors, one of four
and one of 7,5 kilowatts also bolted to the concrete floor.
Killian states:
‘Both of these pumps have a so-called suction side and an outlet side. The
g suction side consist of an asbestos pipe which runs from the dam. At the point
where it is mounted in the dam a foot valve is attached to it. At that point [280]
it is cast in the concrete together with the pipe. It is cast in the concrete
approximately six metres under the water level. . . . The asbestos pipe runs from
the dam to the pumphouse and is buried approximately six metres underground.
The earth above it has been specially compacted. In order to remove this pipe,
q the dam would have to be emptied and heavy duty excavation equipment would
have to be used.’
The asbestos pipe is cast in concrete on the outside o f the pumphouse
and fastened with bolts on the inside to a 100 millimetre valve and is
eventually connected by means of special adapters to the pumps. The
four kilowatt pump is connected to a 75 mm plastic PVC pipeline which
is cast with concrete in the floor of the pumphouse and in turn is
attached to a 250 metre long pipeline installed three metres under­
ground. The 7,5 kilowatt pump is also connected to the main pipeline,
a 90 mm PVC plastic pipe, also buried three metres deep, which is part
of a whole network o f pipes. Killian continues:
E CI wish to point out that none of the pipelines which form part of this entire
system, can be moved. They are also installed in such a manner so that they
should be of a permanent nature without ever being moved.’
Both pumps are connected to an electrical panel and are controlled by a
computer. Killian states:
F ‘The system serves an area of approximately 1,5 hectares and it eventually
forms a web of pipes, electric cables and also electric valves.’
The underground pipes cover an area of approximately five kilometres
and are fitted with 800 sprinklers. Finally Killian declares:
‘All the components to which I have referred above, form an integral part of
the total permanent irrigation and circulation system and when I planned and
installed it, I did this with the idea that it would be of a permanent nature. Had
the intention been that these components would be moved, I would have
carried out the whole installation in another manner.’
To this Meyer, the group manager o f the respondent, answered as
H follows:
‘I deny that the pumps, filters and other components are an integral part of the
system and say that each component is an entity of which the identity has been
fully preserved which can be removed without damage to itself or to any other
component by simply unbolting it. I admit that most of the pipes and cables are
buried but do not know how deep and say that such buried pipes and cables can
I be dug up and removed with no damage to the pipe or cable and with minimal
damage to the soil which after replacement would be invisible.’
Despite the last averment the respondent does not claim the return of
all the components which were sold by him to Pumps for Africa. The
agreement entered into by counsel for the respective parties before the
J commencement of the hearing of the application, reads as follows:
 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK 29
NIENABER JA 1996 (3) SA 273 AD

‘It is also hereby placed on record that respondent, during the hearing of this A
application, formally waived any right which the respondent might have to any
component which is not installed in the pumphouse, and indicated that
respondent only continues to claim from applicant those components which
are installed in the pumphouse.’
In essence, in this case, what is involved are only the articles in the g
pumphouse, more specifically the pumps with their respective connec­
tions and accessories. [281]
Whether movables become fixtures by attachment, depends on cir­
cumstances. No single criterion can provide for all cases. That is why
Innes CJ in the leading decision, MacDonald Ltd v Radin NO and the
Potchefstroom Dairies & Industries Co Ltd 1915 AD 454 at 466, first C
emphasised that ‘each case must depend upon its own facts’ before
mentioning the different circumstances which are normally taken into
consideration, to wit,
(a) the nature of the movable which is attached— with the emphasis
on its capacity of acceding to the immovable; p
(b) the manner of attachment— with the emphasis on the integration
o f the movable with the immovable and whether the movable can
be removed without damaging the one or the other;
(c) the intention with which the attachment occurred— with the
emphasis on whether the attachment was intended to be perma­
nent (cf further, Newcastle Collieries Co Ltd v Borough of Newcastle E
1916 AD 561 at 564-6; Van Wezel v Van Wezels Trustee 1924 AD
409 at 414; Standard-Vacuum Refining Co of SA (Pty) Ltd v
Durban City Council 1961 (2) SA 669 (A) at 677E-678C; Theatre
Investments (Pty) Ltd and Another v Butcher Bros Ltd 1978 (3) SA
682 (A) at 688D-H). F
One view (described as the ‘traditional5 approach) is that (c) only
matters where (a) or (b)3 viewed objectively, are ambiguous; likewise,
that (c) can do nothing to alter the matter where (a) or (b) are not
ambiguous. Another view (described as the new approach) is that (c)3
the subjective intention, sometimes expressed as the ipse dixit, is decisive
and that (a) and (b) as a question of degree are merely indicative o f (c)
(cf Van der Merwe Sakereg 2nd ed at 254-5; Silberberg and Schoeman
The Law of Property 3rd ed at 209-11). A further variant is the omnibus
approach of Van Zyl J in Sumatie (Pty) Ltd v Venter and Another NNO
1990 (1) SA 173 (T), which is criticised by Silberberg and Chemin (op cit
at 212) on the basis thereof that the sources cited do not support the H
proposed formulation and that it is doubtful whether the proposed
formulation will really contribute to a practical solution of this type of
problem. (C f also Van der Merwe 1990 Annual Survey of South African
Law at 216.)
Following on the different approaches the further question arises: .
whose intention? That of the owner o f the movables, that of the annexor
or that o f the owner of the land?
In numerous dicta, as in the MacDonald case itself, supra at 466,
reference is made to the intention of the annexor. (See for example, to
refer only to decisions of this Court, Newcastle Collieries Co Ltd v Borough
of Newcastle (supra at 564); R v Mabula 1927 AD 159 at 161; Pettersen J
 30 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK
NIENABER JA 1996 (3) SA 273 AD

A and Others v Soroaag 1955 (3) SA 624 (A) at 628A-D; Standard-Vacuum

Refining Co of SA (Pty) Ltd v Durban City Council (supra at 678C.)
Theatre Investments (Pty) Ltd v Butcher Brothers Ltd (supra at 688D—F).)
On the face of it this makes sense because after all the inquiry is directed
at the circumstances relating to the attachment as such. There is
g therefore something to be said for it that his point o f view ought to be
relevant when there is a dispute whether a particular attachment [282]
was intended to be permanent or merely o f a temporary nature. The
owner o f the movables is not necessarily involved in the attachment as
such; indeed he may possibly, as in the present case, not even be aware
thereof.
C In none of the cases mentioned supra, except for the MacDonald case
supra, did it matter on the facts whose intention had to be examined,
because in all the cases the annexor was at the same time also the owner
o f the movables. Thus in Trust Bank ofAfrica Ltd v Western Bank Ltd and
Others NNO 1978 (4) SA 281 (A) at 295E, reference is made for example
q to the owner-annexor. MacDonald (supra) was an exceptional case in so
far as the seller-owner o f the movable, a 12 ton refrigeration apparatus
with accessories, carried out the installation thereof at the instance o f the
hire purchase-purchaser but was still not regarded as the annexor. {C f
however, Commissionerfor Inland Revenue v Le Sueur 1960 (2) SA 708 (A)
at 712H.) The apparatus was installed in such a manner that it could
E easily be removed. When the hire purchase-purchaser went bankrupt
before payment, the question arose: who was entitled to the apparatus,
the appellant, as seller with reservation of ownership, or the respondent
on whose land the apparatus was installed? The Trial Court decided the
latter, this Court the former. Both Courts held the view that the hire
p purchase-purchaser was the actual annexor who in this regard merely
made use of the services o f the seller. According to Innes CJ the intention
o f the owner of the movables is decisive:
‘Were it otherwise, the ownership of the property would be dependent upon
the mental attitude of a man to whom it did not belong (the hire purchase-
purchaser), and who did not intend to deprive the true owner of his rights.5
G (At 469.)
Some of the authors, such as Van der Merwe (op cit at 257) and Carey
Miller The Acquisition and Protection of Ownership at 32-3, point out that
in the case of accessio by rights one is not dealing with a derived form of
transfer of ownership. The view that it is the intention o f the owner o f the
H movables rather than the intention of the annexor which is relevant, was
nevertheless followed in later cases without criticism (cf however, Cape
Town & District Gas, Light & Coke Co Ltd v Director of Valuations 1949 (4)
SA 197 (C) at 202) (cf further Land and Agricultural Bank of SWA v
Howaldt and Vollmer 1925 SWA 34 at 36-8; Champions Ltd v Van Staden
. Bros and Another 1929 CPD 330 at 333; Clarke v Uhlman 1943 CPD 124
at 127; Van Rooyen v Baumer Investments (Pty) Ltd 1947 (1) SA 113 (W)
at 117; Bester v Marshall 1947 (3) SA 206 (SR) at 208-9; Trust Bank of
Africa Ltd v Western Bank Ltd and Others NNO (supra at 295E); Falch v
Wessels 1983 (4) SA 172 (T) at 179D-180A). The Court a quo was bound
by this decision and based its judgment on it.
J Counsel for the appellant did not contend in this Court that this
 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK 31
NIENABER JA 1996 (3) SA 273 AD

approach, which originated in the judgment of Innes CJ in the Mac- A

Donald case supra, must be reconsidered. This question was accordingly
not argued.
His contention was that the manner o f attachment made it unneces­
sary to go into the intention with which the attachment was made,
alternatively, [283] if one had to examine the respondent’s intention, that g
in any case he acquiesced in the permanent annexure of his property to
the appellant’s land.
During argument the first leg o f this contention unfolded as follows: all
the pipes, components, pumps etc which Pumps for Africa bought from
the respondent, were connected and strung together in one integrated
system. Sections thereof, such as the five km long pipeline, were installed C
underground, the ground was compacted and it could only be removed
with difficulty, at a cost and damage. The respondent in fact had waived
his claim to everything except for the property in the pumphouse and as
such in effect conceded that the rest had become a fixture. The
installation of the system was part o f the long term planning of the q
property. Without it the contemplated activities on the farm could not be
proceeded with. As such the entire system was destined to become a
permanent part of the farm. It was integrated into a physical, economic
and functional entity. Everything formed part o f a unit and the unit
formed part of the land. Consequently it is unnecessary to examine the
intention with which the attachment was carried out. E
The respondent’s answer was that the system was not physically
indivisible: the articles in the pumphouse retained their independent
identity and could be removed without much difficulty or damage. In
actual fact this was not a case where the nature and manner of
attachment, in any event as far as the goods in the pumphouse were p
concerned, were decisive witihout more ado. As far as the alleged
functional integration was concerned, reference was made to what was
said in Caltex (Africa) Ltd and Others v Director of Valuations 1961 (1) SA
525 (C) at 529C-G:
‘There was much discussion in argument about the question whether the pipes q
could be said to be an “ integral part” of the “ whole installation” . Language of
this nature is apt to be misleading when applied to an enquiry as to movability
or immovability. The article in issue could well be an integral part of something
which in some sense could be said to be a unit or entity, without the article itself
becoming immovable. If the unit or entity is something physical and immovable,
like a house, then an article which is in a physical sense an integral part thereof, |_|
like a door or window, would naturally also be immovable. But where a complex
of things is said to be a unit or entity in a mere functional sense, eg with regard
to an activity such as production, construction, storage or the like, then nothing
is gained in an enquiry of the instant kind by labelling an article as an “ integral
part” of that unit. Such a unit could obviously consist of things movable as well
as immovable; and the character of each component must be determined with j
reference to the principles and criteria applied earlier in this judgment. For the
reasons already stated there is in my view no justification for regarding the pipes
in the present case as being in a physical sense an integral part of any immovable
thing.’
Merely to consider the nature and manner of attachment, without
taking into account the intention with which the attachment was J
 32 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK
NIENABER JA 1996 (3) SA 273 AD

A made, amounts essentially to the so-called ‘traditional’ rather than the

‘new’ approach, to which reference was made earlier, being given
preference.
If the intention is taken into account, it is significant that the owner of
the movables in this case, quite different from what happened in the
g MacDonald case, did not sell a completed system. What was sold was a
number of loose items, under separate invoices, each with its own price.
From [284] the latter’s point of view, there was therefore no question of
an economic or functional unit. Only from Pumps for Africa and the
appellant’s point of view could it be regarded as an economic and
q functional unit— and this pertinently raises the question whether the
annexor’s intention, in the light of the MacDonald decision supra, is
relevant at all, even more so where the annexor, in this case Pumps for
Africa, like the annexor in the MacDonald case supra, knew that the that
the owner o f the annexed property reserved ownership.
In my opinion the first leg o f the argument can only be decided if
finality is reached concerning the two controversial questions which have
just been mentioned (the correct approach; whose intention is relevant).
During argument the two questions were hardly touched upon and
without proper argument I am disinclined towards pronouncing a
considered opinion in this regard.
E The second leg o f the appellant’s argument is founded on it being the
intention o f the respondent which is of importance. The respondent
knew that Pumps for Africa, from the nature of its business, would build
the purchased items into somebody’s irrigation system; parts thereof
were in fact, as Meyer conceded on behalf of the respondent, ‘ custom
F made connecting pipes in the pumphouse’ . Consequently it can be
accepted, according to the submission, that the respondent reconciled
itself with the eventual destination of the items as a permanent part of
somebody else’s system; briefly that the respondent intended that the
items sold would permanently become part of some stranger’s property.
q The submission is in contradiction with clause 2 o f the agreement
between the respondent and Pumps for Africa and with the affidavits
filed on behalf of the respondent, to wit that the respondent never
intended relinquishing its ownership before each and every item had
fully been paid for. No reasons were suggested as to why this statement
l_l must be ignored. The submission cannot be upheld.
If it is the respondent’s intention which is decisive, then the Court a
quo was naturally correct as far as the issue of accessio is concerned. But
this conclusion is based on the acceptance o f a dogmatic standpoint
which might, particularly in the light of the misgivings expressed against
the approach in the MacDonald’s case supra, possibly be reconsidered in
I the future. At present this cannot happen, because the appellant did not
argue its case on that basis. As a result I am prepared to assume against
the appellant and in favour o f the respondent that the MacDonald test
supra still applies, that the respondent’s intention therefore prevails and
that the appeal based on accessio therefore has to fail. Consequently it is
J necessary to examine the question of estoppel.
 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK 33
NIENABER JA 1996 (3) SA 273AD

Estoppel

An owner’s rei vindicatio can be warded off with estoppel where

(a) he makes a representation towards the person raising estoppel
which reasonably misleads the latter into the belief that somebody
else, either as owner or as a person authorised thereto, was
entitled to transfer ownership of the property to the person raising
estoppel; and
(b) such representation must have been made with culpa's and [285]
(c) the person raising estoppel on the basis thereof acted to his
detriment (Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956
(3) SA 420 (A); Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970
(1) SA 394 (A); Oakland Nominees (Pty) Ltd v Gelria Mining &
Investment Co (Pty) Ltd 1976 (1) SA 441 (A); Pretorius v Loudon
1985 (3) SA 845 (A); Quenty’s Motors (Pty) Ltd v Standard Credit
Corporation Ltd 1994 (3) SA 188 (A)).
The respondent’s standpoint is that the appellant did not prove that
(a) the respondent made the representation towards it that Pumps for
Africa were entitled to transfer ownership in the property to the
appellant; and
(b) that the respondent was negligent. (C f B & B Hardware Distribu­
tors (Pty) Ltd v Administrator, Cape, and Another 1989 (1) SA 957
(A) at 964H-965B.)
The material on which the defence of estoppel is based, is indeed
scanty. Kriel, who speaks for the appellant, merely alleges that he
accepted the recommendations of Killian o f Pumps for Africa concern­
ing the installation of the system and that the planning and installation
thereof took place under his direct supervision; that he was unaware of
the existence of the said clause of the agreement; that the respondent
ought to have realised that any customer of Pumps for Africa buying
equipment supplied by the respondent to Pumps for Africa would have
laboured under the misconception that Pumps for Africa was the owner
of the property and was as a result entitled to sell it; that the respondent
did nothing to remove that misconception on the part of customers of
Pumps for Africa; and that he himself laboured under that misconcep­
tion when the appellant ordered the goods and paid for them.
What Kriel does not expressly say is in precisely what manner the
respondent created the impression, why he, Kriel, was under that
impression and in what regard the respondent was ostensibly negligent.
It is mainly on the basis of these apparent lacunae in the appellant’s
case that its defence o f estoppel failed in the Court a quo.
Kriel’s averment must however not be seen in isolation. Kriel and
Joubert also made affidavits and if the three versions are read together,
they indicate the following:
1. The respondent is a wholesaler that supplies pumps and other
irrigation apparatus and accessories to inter alia Pumps for Africa,
a retailer.
2. This took place with reservation of ownership.
 34 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK
NIENABER JA 1996 (3) SA 273 AD

A 3. The respondent is aware of the general nature o f the business of

Pumps for Africa, namely planners, designers and suppliers of
irrigation systems to farmers.
4. Notwithstanding the reservation of ownership credit was granted
to Pumps for Africa. Nothing in the agreement between the
g respondent and Pumps for Africa prohibited the latter from
selling the property before expiry of the period of credit. [286]
5. The goods which were supplied by the respondent to Pumps for
Africa and by Pumps for Africa to the appellant, consist of
components and accessories for an irrigation system.
6. Killian approached Joubert, an employee of the respondent, for
C expert advice.
7. In the light of his own expertise Joubert had to be aware that the
goods were destined to be resold by Pumps for Africa.
8. Pumps for Africa did not inform Kriel that ownership in the
articles was reserved by the respondent and Kriel did not become
□ aware thereof from any other source.
9. The appellant bought the equipment and accessories in good
faith, had it installed and paid for it while he was completely
under the impression that Pumps for Africa was entitled to
transfer ownership in the property to the appellant.
According to the Court a quo this combination of circumstances did
^ not justify the inference that the respondent created the impression
towards the appellant that Pumps for Africa was entitled to transfer
ownership in the articles to the appellant.
It is in fact the position that an owner does not place his ownership at
risk merely by entrusting the property into the care or possession of
F another (cf Electrolux (Pty) Ltd v Khota and Another 1961 (4) SA 244 (W)
at 246H-246E, 247H-248A; Oakland Nominees (Pty) Ltd v Gelria Mining
& Industrial Co (Pty) Ltd (supra at 452A-G)). A lot more is required
before there can be any mention o f estoppel. There was in fact something
more here. A wholesaler provided goods on credit to a retailer while he
r knew that the latter’s business was to sell the goods in turn to members
of the public. In my opinion, this is analogous to the case where an owner
allows his property to become part of the stock in trade o f a public
vendor, who according to expectation and in the normal course of
business sells it to members o f the public. In those circumstances it was
decided in our law on more than one occasion that the owner is
H prevented from relying on his ownership towards an innocent third party
who buys the property from the dealer. (C f Morum Bros Ltd v Nepgen
1916 CPD 392 at 404; Ross v Barnard 1951 (1) SA414 (T), United Cape
Fisheries (Pty) Ltd v Silverman 1951 (2) SA 612 (T) Electrolux (Pty) Ltd
v Khota and Another (supra) and Akojee v Sibanyoni and Another 1976 (3)
■ SA 440 (W).) In Ross v Barnard (supra) Clayden J at 420B-D stated as
follows:
‘Ordinarily where the owner has entrusted property to another, or knows that
another has his property with knowledge of his ownership, the only risk of
disposal of his property to a bona fide purchaser is the likelihood of a dishonest
act by the possessor. In such cases ordinarily the proximate cause of the prejudice
J to the bona fide purchaser is the dishonest act of the possessor. Here what the
 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK 35
NIENABER JA 1996 (3) SA 273 AD

owner might anticipate was not a possible dishonest act by a possessor, but an A
almost certain sale by a possessor who claimed the right to sell, whose business
it was to sell, and to whom the general public came to buy. Except that the goods
here were not “ sold” to the shopkeeper this is the illustration given by Juta JP in
Morum Bros Ltd v Nepgen (supra).’ [287]
And in the Electrolux case supra at 247B-E Trollip J states, in a dictum
which is cited with approval by this Court in Quenty’s Motors (Pty) Ltd v ^
Standard Credit Corporation Ltd (supra at 199C-F):
‘To give rise to the representation of dominium or jus disponendi, the owner’s
conduct must be not only the entrusting of possession to the possessor but also
the entrusting of it with the indicia of the dominium or jus disponendi. Such indicia
may be the documents of title and/or of authority to dispose of the articles, as, for q
example, the share certificate with a blank transfer form annexed, as in West v De
Villiers 1938 CPD 96, and the other cases referred to therein; or such indicia may
be the actual manner or circumstances in which the owner allows the possessor
to possess the articles, as, for example, the owner/wholesaler allowing the retailer
to exhibit the articles in question for sale with his other stock in trade (see Morum
Bros3case supra at 4 0 2-3, 404; United Cape Fisheries (Ply) Ltd v Silverman 1951 q
(2) SA 612 (T); Ross v Barnard 1951 (1) SA 414 (T) at 420C-E). In all such
cases the owner “provides all the scenic apparatus by which his agent or debtor
may pose as entirely unaccountable to himself, and in concealment pulls the
strings by which the puppet is made to assume the appearance of independent
activity. This amounts to a representation, by silence and inaction . . . as well as
by conduct, that the person so armed with the external indications of indepen- [=
dence is in fact unrelated and unaccountable to the representor, as agent, debtor,
or otherwise.” (Spencer Bower on Estoppel by Representation at 208.)’
It is apparent from the said decision that in our law a need exists to
protect the bona fide purchaser of property at the expense o f the true
owner thereof if the owner allows the property to be sold as part of the
wares of a public vendor in the normal course. F
The latest judgment in this vein is Quenty3s Motors (Pty) Ltd v Standard
Credit Corporation (supra). The appellant delivered his two luxury cars,
on consignment to a motor dealer. Love Motors Durban CC, owned by
a certain Love. The understanding was that Love Motors could sell each
of the vehicles in its own name. Should it succeed, the purchase price q
after deduction o f the commission would be paid to the appellant and
ownership would be transferred to Love Motors. Should it not succeed,
the vehicles would be returned to the appellant. With the appellant’s
knowledge the cars were exhibited on the floor at Love Motors as part of
its stock in trade. Love Motors sold the vehicles under a floor plan
agreement to the respondent, a finance company. The respondent paid
Love Motors, but Love disappeared with the money without paying the
appellant. The respondent took possession of the vehicles.The appellant
claimed them on the basis o f its ownership. Its application failed in the
Court a quo as well as on appeal. Nicholas AJA stated at 199J-200B:
‘The vehicles were to be delivered to Howard Love; they were to be exhibited for I
sale at Love Motors; and it was contemplated that they would be sold, and that
when each was sold Howard Love would pay Quenty’s Motors therefor. It is not
disputed that the two vehicles were displayed in the showroom of Love Motors,
together with other vehicles displayed by it for sale. When Mohamed Ahmed (a
director of the appellant) went to Durban on 26 November 1990 he looked for
the vehicles at the premises of Love Motors. Adapting the words of Trollip I, J
 36 KONSTANZ PROPERTIES (PTY) LTD v Wm SPILHAUS EN KIE (WP) BPK
NIENABER JA 1996 (3) SA 273 AD

A Love Motors dealt with the vehicles with Quenty’s Motors5consent [288] in such
a manner as to proclaim that the dominium or jus disponendi was vested in Love
Motors. Holmes JA’s first requirement was satisfied.’
(The first requirement, to which reference is made, is the statement of
Holmes JA in the Oakland Nominee case supra at 452A:
g ‘that an owner is estopped from asserting his rights to his property only—
(a) where the person who acquired his property did so because, by the culpa
of the owner, he was misled into the belief that the person, from whom he
acquired it, was the owner or was entitled to dispose of it;. . . ’ .)
The same argument also applies here. By providing Pumps for Africa,
a retailer, with the goods in the knowledge that they would become part
C of the latter’s stock in trade, and as such in the normal course o f events
be freely alienable, the respondent by its conduct, in my view, represents
to any client o f the retailer buying such goods that the dealer has the
authority to transfer ownership thereof to the buyer.
Factually the representation, contrary to what the Court a quo held,
q was therefore proved, although not in those precise words as set out in
the appellant’s affidavit.
The following question is whether negligence was also proved on the
part o f the respondent. What was said in this regard in Quenty’s Motors
(Pty) Ltd v Standard Credit Corporation Ltd (supra at 200B-C) applies
equally to the present case:
^ ‘In regard to the second requirement (negligence), Mohamed Ahmed should
reasonably have contemplated that a prospective purchaser might act on the
representation to his prejudice, and he was negligent in not taking reasonable
steps to prevent it.’
Here too the respondent should reasonably have foreseen that a buyer
p in the appellant’s position could possibly be misled and prejudiced.
Quite differently from the type of case where an intermediary alienates
the property unexpectedly in a thieving or fraudulent manner (cf
Grosvenor Motors (Potchefstroom) Ltd v Douglas (supra); Oakland Nominees
(Pty) Ltd v Gelria Mining & Industrial Co (Pty) Ltd (supra)), the actual
alienation transpired here with the approval and in accordance with the
expectation o f the owner. Pumps for Africa was entitled to alienate the
articles in the normal course of its affairs before it made payment to the
respondent. The respondent was aware of the possibility that Pumps for
Africa could possibly not settle its debt. For that reason ownership was
reserved. But the reservation of ownership created the further foresee-
H able possibility which was not guarded against, that an unsuspecting
client of Pumps for Africa such as the appellant would buy the goods in
question and pay for them under the impression that he would become
owner thereof by delivery. Hence the negligence and hence the estoppel.
Negligence in this sense is clear, even if it was not plainly averred in the
I papers. (Johaadien v Stanley Porter (Paarl) (Pty) Ltd (supra) which
required that negligence must be specifically alleged, was an exception.)
The result is that the respondent’s reservation of ownership cannot
succeed against an innocent buyer; it could only have prevailed had the
goods still been in the possession o f Pumps for Africa when respondent
laid claim to them.
J In my opinion the representation and negligence requirements were
 SCHIPPER v DE BOD NO AND ANOTHER 37
MYNHARDT J 1996 (3) SA 309 TPD

complied with for the successful invocation of estoppel. [289] The other A
requirements for estoppel were not in dispute. The appellant’s invoca­
tion of estoppel was therefore wrongly dismissed by the Court a quo.
The following order is made:
(1) The appeal succeeds with costs.
(2) The order of the Court a quo is set aside and substituted with the g
following order:
(1) Paragraphs 3.1 and 3.2 of the Court order, dated 2 September
1993, in case No 8805/93, are set aside.
(2) It is declared that the respondent is not entitled to the return of the
items mentioned in annexures E to Y to the summons in the said case No
8805/93. C
Botha JA, E M Grosskopf JA, Marais JA and Scott JA concurred.

SCHIPPER v DE BOD NO AND ANOTHER

TRANSVAAL PROVINCIAL DIVISION
MYNHARDT J

1994 May 19 Case No 1572/94 p

1996 (3) SA 309 (T)

Application for the review and setting aside of a decision of the first
respondent. The facts appear from the judgment.
S J J van Niekerk for the applicant. G
No appearances for the first respondent.
G Bofilatos for the second respondent.

Mynhardt J: This is an application for review of the first respondent’s

decision o f 6 December 1993 that the applicant’s legal representative H
was not entitled to cross-examine a witness who testified during pro­
ceedings which were held in terms o f the provisions of s 22 of the
Agricultural Credit Act 28 of 1966 (‘the Act’), and, secondly, that the
applicant’s legal representative was only entitled to question witnesses
whom he represented. I
The relief requested by the applicant is that the decision of the first
respondent be reviewed and set aside and that it be substituted with an
order in terms whereof it be declared that the applicant’s legal represen­
tative is in fact entitled to question the witness, who has already testified,
Mr Visser, and that he is also entitled to examine other witnesses who
may still be called and examined, in addition to Mr Visser. What it J