Flynote

Attachement - What constitute - Loose parts of a unit - Unit an attached fixture- Tests as to whether
loose parts/components of an accessory thing can be said to have acceded (attached) to the thing.
Headnote
The appellant had purchased a smallholding with a house situated thereon, including certain specified
furniture, from the respondent. A wooden unit, which matched the surrounding wood panelling, had
been built against a wall in the study. Two standard-sized steel cabinets fitted into the wooden unit.
These steel cabinets were separated from each other by a wooden cupboard which was part of the
built-in unit. The cabinets were light and could be removed readily, without in any way disturbing the
unit or having to remove any nails, screws or wire. In another room, a bar unit with a wooden counter
had been fixed to the floor. It was common cause between the parties that the bar unit was a fixture
(meaning an attachment) which formed part of the house. When the appellant had inspected the
house prior to purchasing it, there were six loose bar stools in front of the unit. It was apparent from
the design of the stools and the materials used in their construction and decoration that they matched
the unit. Neither the cabinets nor the stools had been specified as being part of the subject-matter of
the sale. After taking occupation of the house the appellant had removed the cabinets and stools from
an outside room on the property where the respondent had stored them. The appellant then installed
them in the house.
In an appeal from a decision in a magistrate's court where the appellant had been ordered to return
them to the respondent, ACKERMANN J held, that an accessory thing for purpose of a contract for sale
of immovables must be regarded as part of the res (immovable thing) sold if it was destined to be of
permanent service to the immovable res and if it is necessary for the effective use or exploitation of
the immovable res. The court held, further (per COETZEE J), that when a composite thing is designed
as a unit and the principal part thereof is incorporated (whether by weight or physical connection -
"aard of nagelvast") in an immovable res, then the loose parts of the unit, as part thereof, also become
prima facie immovable. It was further held, accordingly, that the appeal should succeed in so far as
the bar stools were concerned, but that, whereas the steel cabinets did not meet the above tests, they
should be restored to the respondent.

Case Information
Appeal against the decision in the Magistrate Court. See facts in the judgment of ACKERMANN R.
JJ Pretorius on behalf of the appellant.
TJ Kruger on behalf of the respondent.
Cur adv vult.
Postea (February 22)
Judgment
ACKERMANN R: This is an appeal against a ruling of the Magistrate, Potchefstroom, in which it ordered
the appellant to deliver six bar stools and two steel cabinets to the respondent and to pay the
respondent's legal costs.
In accordance with a written deed of sale signed by the parties on 9 June, 1981 the respondent, inter
alia, sold immovable property to the appellant, namely holding 38, Mooivallei, for a purchase price of
R150 000. According to the deed of sale, the respondent also sold the following goods to the appellant:
all curtains present as on the property at date of the deed of sale for a purchase price of R2 000;
certain rolls of wire at the price for which the respondent purchased it; the master bedroom set for
R1 500; the living room set for R2 000 and the dining set for R1 000. In addition, the snooker table,
with all its accessories, was also sold to the appellant in terms of the deed of sale, but the price for
this is included in the purchase price of the holding. Clause 5 of the deed of sale provides, inter alia,
that the deed of sale is the exclusive agreement between the parties and no amendment to the
agreement will be valid unless written and signed by both parties.
Shortly before the appellant signed the deed of sale, he went to look at holding 38 in question and the
house which was built on it. At this point, as well as at the time of signing of the deed of sale, the steel
cabinets and bar stools that are the subject of the dispute, was present in the house in question. The
steel cabinets were in the study and the chairs next to a wooden bar in another room.
The respondent instituted two claims against appellant. "Claim no 1" was not placed before the
Magistrate for settlement. "Claim no 2" was the demand for the delivery of the steel cabinets and bar
stools, which was brought before the Magistrate. In para 1 of this claim, the respondent's case was
summarised in the following short and concise manner:
“1. The defendant is in unlawful possession of certain two steel cabinets and six bar stools
being the property of the plaintiff.”
In his defence to this claim, the appellant denied that he was in unlawful possession of the cabinets
and bar stools and he also disputed the respondent's property rights. Otherwise, he pleaded –
“that the furniture forms part of the immovable property being holding 38, Mooivallei, which
was sold to the respondent on 9 June 1981 by the plaintiff and in respect of which the
purchase price has been fully settled.”
On these issues, the parties went to trial. The Magistrate, after hearing the evidence, found that the
steel cabinets and bar stools do not constitute attachments of the immovable property, but that it
was movable property, and consequently allowed the claim of the respondent.
From the on-site inspection and the evidence provided, the following may be considered as common
cause. The two steel cabinets stood against a wall in the study. Between the two cabinets there was a
wooden cupboard with a wooden door. Around each steel cabinet was a wooden frame with skirting
below. This whole wooden frame was attached to the wall. The wooden frame matches the other
wood panels on the wall in terms of nature and appearance. The steel cabinets fit loosely in the
wooden frame and can be removed without the need to detach or take apart any part of the wooden
frame. The section of the wall against which the steel cabinets stood is unpainted. The steel cabinets
are a standard size and dimensions, and are freely available in the course of trade.
In a separate room there is a bar unit with a wooden counter. It is common cause that the bar unit
and counter is an attachment and form part of the immovable property. The six wooden bar stools
stood loose in front of the counter. They are not fixed to the floor or attached to the counter and also
not intended to be physically attached. The wood of which the chairs are, upon visual assessment,
similar to that of the counter. The pattern of the chairs also matches the pattern of the counter. The
brass footrest of the chairs in addition, corresponds to the brass bracket of the foot rest of the counter.
The chairs have green seat upholstery that matches the green paint on the stairs. Although the stated
value of the bar stools in the respondent's documents are R45 each, the respondent states in his
testimony that they are worth R100 each, but this evidence is based on the expert opinion of someone
else and is therefore inadmissible hearsay evidence. There is further undisputed evidence that the
house on holding 38 was built by one De Witt, who also installed the bar, bar counter and the six bar
stools. One Charles van Niekerk bought the house from De Witt and received the bar stools with the
property. Van Niekerk sold the house to respondent's son, delivering the bar stools along with the
fixed property. The respondent's son, in turn, sold the home to the respondent and the delivered the
chairs with the property. According to Van Niekerk there was no separate clause relating to the sale
or delivery of the bar stools in his purchase and sale agreement of the property. Regarding the
purchase of the property concerning the respondent from his son it does not appear that there was
any separate bargaining regarding the bar stools. The wood frame around the steel cabinets was
apparently fitted by respondent's son when he was still in possession of the property.
There is conflicting evidence on the record as to whether, during the negotiations prior to the
conclusion of the contract of sale, the respondent would’ve informed the appellant's daughter if the
bar stools are included in sale of the home. The appellant testifies that such an undertaking existed
but the respondent denies it. The appellant's daughter was not called as a witness. The magistrate
made no finding on this issue and no finding on appearance or credibility as far as the parties are
concerned. The magistrate's failure to rule on this point in the appellant's favour is not one of the
appellant's grounds of appeal. It is highly doubtful whether, in light of the provisions of clause 5 of the
deed of sale which I have already referred to and at absence of rectification of the deed of sale,
evidence of such undertaking is admissible. Furthermore, I consider that, given the conflict between
the two versions, the fact that the appellant's daughter did not testify and the absence of any evidence
in support of the appellant's version, it would not be possible to find on the record before us that the
alleged agreement has been proved on a balance of probabilities. (See Garzouzie v Smith 1954 (3) SA
18 (O) at 22 and Koster Ko-operatiewe Landboumaatskappy Ltd v Suid-Afrikaanse Spoorweё en
Hawens 1974 (4) SA 420 (W) at 425 - 427 as explained in African Eagle Life Insurance Co Ltd v Cainer
1980 (2) SA 234 (W) at 237 - 238.) Mr Pretorius, who appeared on behalf of the appellant, also then
expressly stated, in my opinion that he does not rely on such an undertaking. After signing the deed
of sale, the respondent removed the cabinets and bar stools from the residence along with certain
items of property that belonged to him and locked the items in the storeroom. Shortly thereafter, the
appellant broke the lock of this room and took the cabinets and bar stools back to the residence. There
is no evidence if the transfer of holding 38 had already been made to the appellant at the time of his
filing of the action. Apart from the facts I referred to above, there is in my opinion no other evidence
that is relevant.
I first deal with the question whether the cabinets and bar stools are part of property through
attachment or accessio. Although every case must be decided on its own merits and the application
of the right to particular facts are sometimes not without problems, certain principles have clearly
crystallized in our law when answering the question whether a thing, at first movable, became
immovable as a result of attachment by human intervention, to an immovable property. In MacDonald
Ltd v Radin NO and the Potchefstroom Dairies & Industries Co Ltd 1915 AD 454 the Chief Justice INNES
at 466 – 467 formulated the well-known tripartite test as follows:
“[T]he elements to be considered are the nature of the particular article, the degree and
manner of its annexation, and the intention of the person annexing it. The thing must be
inherently capable of acceding to realty, there must be some effective attachment (whether
by more weight or by physical connection) and there must be an intention that it should
remain permanently attached.”
(My italics.) These principles are, with or without development applied in our Courts since. There are
different dicta about the relative weight of each separate element of the test and to what extent the
first two tests is only prima facie or conclusive evidence as to determine the attacher’s intent (see
Melcorp SA (Pty) Ltd v Joint Municipal Pension Fund (Transvaal) 1980 (2) SA 214 (W) at 216 - 217; an
article "Superficies solo cedit - sed quid est superficies" by Carol Lewis in (1979) 96 SALJ 94; Van der
Merwe Sakereg at 159 - 168 and cases cited therein). It is for the purposes of this ruling unnecessary
to enter this debate. What I firmly believe is that there has never been any deviation from the
requirement set out in the MacDonald case supra in the italicized section of the quotation, namely
that there can be no claim that movable property has become immovable as consequence of accessio,
unless there is effective attachment of the movable to the immovable property, either by mere weight
or by actual physical coupling.
In the present case, the bar stools and steel cabinets are apparently so light that there is no question
of attachment by mere weight. In addition, it is common from the facts that that there is no physical
coupling between these items and the immovable property. The chairs can be moved around at will
and the cabinets can be moved with ease in and out of the wooden frame, without loosening a nail,
screw or wire. On the evidence there can therefore be no question that the cabinets or chairs did
become part of the immovable property by accessio, in the real sense.
Mr Pretorius, however, further relied on an analogous principle. Van der Merwe at 30 – 31 makes a
tripartite classification of "things considered to be immovable". Firstly, a demarcated piece of land
registered as such in the Deeds Office, together with the geological markers thereof. Secondly,
everything that is connected to the ground in a natural and artificial manner. The latter in this second
category would then be the real/true "accessio". He describes the third category as follows on page
31:
“(iii) matters which, although movable, have become so-called immovable by
intention/purpose because of their function to the immovable property, being of permanent
service, such as keys of a house, a compost heap which is destined for fertilizing a plot of land
and already lying on the land and the kettles of a beer brewery.”
The learned author also, at 36 - 37, distinguishes between principal thing (hoofsaak), accessory thing
(bysaak) and auxiliary thing (hulpsaak). Accessory things becomes physically part of the principal thing
due to accessio. With regard to auxiliary things, he says the following at 37:

"Unlike in the case of a secondary thing, there is no physical connection between the principal
thing and auxiliary things, but the economic purpose of the auxiliary thing causes a connection
 to the principal thing. Namely, an auxiliary thing is in an economic sense permanent in relation
to the principal thing, in the sense that it is destined to serve the principal thing and increase
its enjoyment and value ... Because furniture is not necessarily destined to serve a house it is
not considered auxiliary things ... Examples of genuine auxiliary things are a car's spare wheel
and the keys of a house or a closet. "

Based on these principles, it was argued that the cabinets and chairs were auxiliary things and as such
should be considered as part of the immovable property (the house).

Apart from the examples mentioned by Van der Merwe (ibid) there are many examples mentioned by
our institutional writers and in case law that dealt with instances of auxiliary things that are considered
part of immovable property. In Smyth v Furter (1907) 24 SC 424 a loose lid and pipe were considered
as immovable because they were part of an immovable steam boiler. In Van Wezel v Van Wezel's
Trustee 1924 AD 409 at 414 an easily removable water tank was considered part of an immovable
windmill. The keys of a residential house, the movable bars with which doors are closed and the lid of
a water well is considered part of the immovable property sold. (See Dig 19.1.17 and Voet 19.1.5 as
cited in Smyth v Furter (supra).) Huber Heedensdaegse Rechtsgeleertheyt 1.3.3.39 also refers to keys,
padlocks, pit lids and loose stairs and ladders to attics which otherwise could not be reached, as
included in the sale of a home. Reference to these examples is however of limited use because each
case must be decided on its own facts, on the basis of the applicable principles.

In principle, however, it seems incorrexct to speak of an auxiliary thing in a property law sense as
becoming immovable because it is the auxiliaryof an immovable thing.

In passing, it can be noted that Van der Merwe at 36, footnote 149, shows that in Roman law the
expression quasi pars rei was used in relation to auxiliary things, which is indicative of working with a
fiction. Voet 19.1.5 states in his discussion of what should be delivered with a home when selling it
the following (Gane's translation band 3 at 379):

"also furthermore all things that have been set in and embodied in the building and which are
held for the house with a view to permanent use, and are as it were a part of it (quasi pars
aedium sunt) such as the covering of a well, vessels for drawing water and tubs (as to which
see Gothofredus in his Notes) ... So in addition ... with bars also and keys and bolts, though
they do not hold to the earth (licet terra se non teneant)"

(My italics.) The clear impression created is that, despite the facts that this movable property is not
part of the immovable property, it is the seller’s duty to deliver them with the house. It may be that
for certain purposes, the auxiliary thing is treated legally in the same way as the immovable thing,
while for other purposes it is not treated the same why as the principal thing. The fact that the auxiliary
thing is included in the purchase contract of the immovable property it serves, does not necessarily
mean that it is part of the immovable thing in the proprietary sense of the word, only that it is also
included in the res vendita of the contract of sale, although not explicitly stated. This can be done by
way of a tacit provision (in the true consensual sense of the word) of the agreement or implicitly, ex
lege, without reference to the real intent of the parties, provided that it does not conflict with the
express terms of the contract. In Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506 (A) at 531-532 the Acting Court of Appeal Judge CORBETT refers to the confusion that
exists between the two categories because of, inter alia, the indiscriminate use of the words "tacit"
and "implied" to describe both categories. With regard to the implied term which forms, ex lege part
of the agreement (without reference to the actual intent of the parties), the learned Appellate Judge
says the following at 531H:
 "Such implied terms may derive from common law, trade usage or custom, or from statute."

It seems to me that where reference is made by our authors and in our case law to say movable
auxiliary things form part of the immovable property for the purpose of a contract of sale res vendita,
or included in the res vendita, one actually has to do with a tacit negotiation that is inserted ex lege,
in the above sense, and not with a situation where the auxiliary thing has become immovable in the
property law sense.

The key question is, which principles are appropriate to determine whether these seemingly
movables, as auxiliary things, can be considered as part of the thing sold. Huber (ibid) states,
concerning auxiliary things, such movable property must also follow the purchaser -

“al wat tot noodig gebruik van een huis voor soo veel het een huis is vereyst... maer geen...
andere dingen, die of tot beter gebruik van't huis of tot gerief van de geene die 'er in woonen
behooren.”

(Gane band I at 408 translates this phrase into English as:

"everything which is requisite for the necessary use of a house as a house ... but not ... other
things which pertain either to the better use of a house or to the comfort of those who live in
it”).

In Smyth v Furter (supra at 426), Chief Justice DE VILLIERS considered the movable things as part of
the immovable boiler because they were "essential appurtenances/service" of the latter.

In Van Wezel v Van Wezel's Trustee (supra at 414) the test for necessity service / essential service to
the immovable property, as required in Smyth v Furter, was seemingly supported. Similarly, see cases
such as Lewis v Ziervogel 1924 CPD 310; Clark v Uhlmann 1943 CPD 124; Spreeth v Lazarus 1944 CPD
79 and Salisbury Municipality v Nestlé's Products (Rhodesia) Ltd. 1963 (1) SA 339 (SR) at 342A - 346B.

In Western Bank Ltd v Trust Bank of Africa Ltd and Other NNO 1977 (2) SA 1008 (O) at 1021D, Judge
M T STEYN formulated the principle as follows:

"So, because of the purpose for which it is installed, a particular item ... which is basically
movable in nature, become immovable due to being linked to an object which provides an
immovable improvement to the property, and the particular item concerned is intended to
form part of the immovable item as part of the particular system and is essential to its
intended and effective operation."

(My italics.)

In view of the foregoing authority, I consider that the principle, for the purposes of the present case,
can be formulated as follows: An auxiliary thing will be, for the purposes of a purchase contract of
immovable property, considered as part of the property sold, if it is intended to be of permanent
service to the immovable thing and is essential for its efficient use or utilization of the immovable
thing (which is the principal thing).

Subject to insertion of the requirements of necessity for efficient use or utilizing of the immovable
property, I would also want to emphasise the following statement from Van der Merwe at 31:

"Things that, although movable, have become immovable by intention because their function
has the purpose to be of permanent service to the immovable thing."
Next, this principle must be applied to the facts of the case in question. Concerning the steel cabinets,
the test need only be formulated to reach the conclusion that justify that the cabinets never became
auxiliary, immovable things through purpose. The reason is, in my opinion, simple; they were never
destined to service any immovable things permanently or otherwise. The cabinets had an independent
existence at all times and the installation of the wooden frame was merely for aesthetic purposes and
indeed to assist the auxiliary thing. (See the comments of Judge HOWES in Clarke v. Uhlmann (supra
at 128).) In my opinion, the magistrate was therefore perfectly correct to find that the steel cabinets
did not form part of the sale and that it was movable at all times, in the fullest sense of the word.

I now consider the legal position regarding the bar stools. By the nature of their wood type, design,
shape, upholstery and brass fittings, they have formed an aesthetic unity with the bar counter and the
bar itself. In this sense, as well as their apparent function, they were destined to serve the bar and bar
counter, and this point of view, in my opinion, is evident from the fact that they were seen as such by
all previous owners of the holding in question and was used for this purpose. Of course, it is possible
to use the bar and bar counter without using the chairs. Can it therefore be said that they are essential
to the efficient operation of the bar? The notion of necessity is not an absolute one. It would be
undesirable, if not impossible, to lay down a norm in this regard that must be applied to all cases.
Every case should be, as best possible, judged on its own merits.

The bar and bar counter can of course be used while people are standing. However, given the fact that
this is a bar in a private home, a seemingly luxurious one, I am of the opinion, in the context of
prevailing usage and social beliefs (see Van der Merwe at 168), that it is reasonable to assume that a
substantial number of the users of the bar will want to use it while being be seated. Without chairs,
the social utility of the bar would, in my opinion, be materially reduced and the bar could not be used
effectively. I think, accordingly, that the bar stools are essential to the efficient operation of the bar
unit and that they were, considering their particular design and appearance, permanently intended
for this purpose. It being the case, the bar stools were therefore immovable by its destined use, and
must therefore be considered as part of the bar unit and consequently also the immovable property,
which respondent sold to appellant.

Mr Kruger, who appeared on behalf of respondent during appeal, raised an alternative argument
regarding the bar stools, if they were found to be immovable at the time of closing the deed of sale.
The argument went as follows. The deed of sale (creating a binding legal relationship
(verbintenisskeppende ooreenkoms)) must be distinguished from the real agreement (which regulates
the duty to delivery and the right to receive delivery). The respondent remains owner of the property
until registration takes place in the name of the appellant. Occupation by the appellant occurs on
September 1st 1981, which makes it likely that registration of the property in his name did not occur
before that date. The respondent removes the chairs before the appellant takes possession or
becomes the owner of the property and chairs and consequently the chairs are made movable by the
owner of it. The appellant unlawfully removes the chairs from the storeroom, so he is a mala fide
possessor and he cannot become the owner of the thing. Accordingly, the respondent should succeed
with the rei vindicatio. In my opinion, this argument cannot succeed for several reasons. Once it is
established that the chairs are included in the sale, the respondent cannot by his actions, after the
conclusion of the contract, change the content of the contract or its obligations by taking possession
of the chairs. According to the deed of sale, the respondent had to give possession of the property,
including the auxiliary things, to the applicant, on September 1, 1981. The burden of proof was on
respondent to prove that he was the owner of the chairs. There is no evidence as to when the
immovable property was transferred in the name of the appellant. Even if it is accepted in the
respondent's favour that the transfer took place after September 1, 1981, it does not weaken the
respondent's obligation to transfer possession of the property (38 Mooivallei) and the chairs to the
appellant on September 1, 1981. As of September 1, 1981, the respondent, even if he was still the
owner of the chairs, had no right to recover them from appellant. After all, he was obliged to deliver
them to the appellant. Therefore, there can be doubt that the respondent cannot use rei vindicatio to
claim the chairs. If it was respondent's grievance was that appellant wrongfully removed chairs from
his possession, he could conceivably regain possession with the mandament van spolie. This was
clearly not his case in the court a quo. If he brought his case in the court a quo on this basis, it may be
conceivable that the appellant would’ve immediately gave the respondent possession of the chairs
and immediately after instituted an action for delivery of the chairs against the respondent in terms
of the deed of sale. If the respondent is allowed to take this point on appeal, the possibility of prejudice
of the appellant respondent cannot be excluded and accordingly this point won’t be taken up now.
(See Shill v Milner 1937 AD 101.)

The conclusion to which I come is that the respondent was not entitled to claim the six bar stools and
to that extent the appeal must succeed. The appellant's success is in my opinion desirable, having
regard to the fact that the chairs in respect of which the appeal was successful should be worth
between R270 and R600, so there is no reason why respondent should not pay the costs of appeal.

The following order is made.

The appeal succeeds with costs. The magistrate's order is set aside and replaced with the
following:

"Defendant is ordered to deliver the two steel cabinets to plaintiff and to pay plaintiff's
litigation costs."