SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 20609/2014
Not Reportable

In the matter between:

RALPH WERNER KÖSTER                                                                           APPELLANT

and

ARCHIBALD NORVAL                                                                               RESPONDENT

Neutral citation:   Köster v Norval (20609/14) [2015] ZASCA 185 (30 November 2015)

Coram:
Ponnan, Majiedt, Pillay JJA and Van der Merwe and
Baartman AJJA

Heard:

02 November 2015
Delivered:

30 November 2015

Summary:
Sale ─ by non-owner ─ obligations ─ required to deliver vacua possessio
only and to warrant against eviction ─ not obliged to transfer ownership ─ appeal
dismissed.

ORDER

On appeal from Western Cape Division of the High Court, Cape Town (Van Staden AJ
sitting as court of first instance):

The appeal is dismissed with costs.

JUDGMENT

Pillay JA and Van der Merwe AJA (Ponnan and Majiedt JJA and Baartman AJA
concurring)

[1] By the middle of February 2004, Mr Archibald Norval, the respondent, was the
holder of or entitled to all the shares in Flexivest 6 (Pty) Ltd (Flexivest). Flexivest owned
land, game and farming equipment. The respondent wished to dispose of the whole of
his interest in Flexivest for a consideration of R8,5 million. On 18 February 2004, he
entered into two written agreements in respect thereof with Mr Ralph Werner Köster, the
appellant. In terms of the first of these agreements, the respondent sold all the issued
shares in Flexivest to the appellant or his nominee for the purchase price of R6,5 million.
This agreement recorded that the assets of Flexivest consisted of fixed property, that is
farmland, as well as farming equipment listed in an annexure to the agreement. In terms
of the second agreement, the respondent sold the game listed in an annexure attached
thereto, to the appellant for the purchase price of R2 million. The contract provided that
the purchase price was payable five years after the date of the agreement and provided
that the appellant was not liable for the payment of interest on the purchase price. It is
clear from the evidence that the sole reason for the separate agreement in respect of the
game was to accommodate the appellant‟s request for a five year interest free extension
of the date of payment of the purchase price. In return the respondent obtained the right
to the occupation of the house and farmyard on the farm Nooitgedacht for the period of
five years.

[2] The provisions of the sale agreement in respect of the Flexivest shares were duly

given effect to. The purchase price was paid and the shares were transferred to the
appellant‟s nominee, the Mimosa Lodge Trust IT 613/2003. However, despite the
effluxion of the period of five years, the appellant refused to make payment of the
purchase price of R2 million in respect of the game.

[3] The respondent accordingly issued summons in the Western Cape Division of the
High Court. The court a quo (Van Staden AJ) gave judgment in favour of the respondent
for payment of the amount of R2 million, mora interest on that amount calculated from 29
April 2009 to date of payment and costs of suit. It, however, granted leave to the
appellant to appeal to this court.

[4] As we have said, the respondent was not the owner of the game. In his particulars
of claim he nevertheless pleaded that he had performed all his obligations in terms of the
deed of sale in respect of the game. This was in accordance with our law. It is trite that it
is not a requirement for a valid contract of sale that the seller must be the owner of the
thing sold. In Alpha Trust (Edms) Bpk v Van der Watt 1975 (3) SA 734 (A) 743H-744A,
Botha JA summarized the legal position as follows:
„Dit is duidelik dat vir „n geldige koopkontrak volgens ons reg geen vereiste is dat die verkoper
van die koopsaak eienaar daarvan moet wees nie. Ofskoon dit die doel van die koopkontrak is
dat die koper eienaar van die verkoopte saak moet word, is die verkoper egter nie verplig om die
koper eienaar daarvan te maak nie. Hy moet die koper slegs in besit stel en hom teen uitwinning
vrywaar. Dit beteken dat die verkoper daarvoor instaan dat niemand met „n beter reg daartoe die
koper wettiglik van die verkoopte saak sal ontneem nie, en dat hy, die verkoper, die koper in sy
besit van die saak sal beskerm.‟
G R J Hackwill, Mackeurtan’s Sale of Goods in South African, 5th ed states:
„As has been indicated elsewhere, although the parties to a contract of sale usually contemplate
a transfer of ownership in the thing sold, this is not an essential feature of the contract, and sales
by non-owners are quite permissible.‟ (p 23, para 3.1.1.)
„The delivery required of a seller is the delivery of undisturbed possession (vacua possessio)
coupled with the guarantee against eviction. It is not necessary that the seller should pass the
ownership, for the implied engagement of the seller is a warranty against eviction and not a
warranty of title, but he must divest himself of all his proprietary rights in the thing sold in favour of
the purchaser.‟ (p 66, para 6.2)
(See also De Wet & Van Wyk, Kontraktereg en Handelsreg, 5th ed, vol 1 p 329.)

[5] In the court a quo, it was common cause that delivery of possession of the game
had been made to the appellant. The game was on Flexivest‟s land at the time of the sale
and remained on the land at all relevant times thereafter. In the absence of custom, trade
usage or agreement to the contrary, the obligation of the seller is to put the goods at the
disposal of the buyer at the place where they were at the time of the sale (see LAWSA, p
51 para 62 and p 54 para 65). This rule applied in this instance and this is exactly what
took place in this instance. It is clear from the evidence of both respondent and Mr van
Velden, the attorney who testified on behalf of the appellant, that the game was made
available and placed at the disposal of the appellant as the game remained on the land.
The appellant did not testify. He did not plead that he was evicted nor was there any
evidence that any person with a better title had sought to lay claim to the game.

[6] The appellant sought to avoid the inevitable conclusion that he is liable for
payment of the purchase price of the game, by pleading as follows:
„2.2
The following were tacit, alternatively implied terms of the Deed of Sale (Annexure “A”):
2.2.1
the Plaintiff was the owner of the game listed on “aanhangsel A”;
2.2.2
the Plaintiff was capable of transferring ownership in the game to the Defendant;
2.2.3
delivery of the game would be effected by the Plaintiff to the Defendant with the intention
of transferring ownership in the game, and delivery would be taken by the Defendant with the
intention of accepting ownership in the game.‟

[7] In response to a request for further particulars for trial, the respondent denied the
contents of paragraph 2.2.1 above, but admitted the contents of paragraphs 2.2.2 and
2.2.3. In our judgment these admissions constitute errors of law and the respondent is
not bound by them. There is a clear distinction between an implied term and a tacit term
of a contract. An implied term is a rule of the law that is applicable to such contracts
unless validly excluded by the contract itself. As we have pointed out, it is certainly not a
term implied by law that the seller is obliged to transfer ownership of the merx to the
purchaser. A tacit term, if it exists, must be found by necessary implication in the
unexpressed intention of the parties. (See Alfred McAlpine & Son (Pty) Ltd v Transvaal
Provincial Administration 1974 (3) SA 506 (A) at 531-532.) From this flows the rule of the
law that no tacit term can be imported into a contract in contradiction of the express
terms of the contract. (See Robin v Guarantee Life Assurance Co Ltd 1984 (41 SA 558
(A) at 567A-F). The express terms may also exclude the possibility of importing tacit
terms even when the express terms do not expressly deal with the matter. The sale

agreement in respect of the game contained detailed provisions, was efficacious and
complete and there is no necessary implication that the parties‟ unexpressed intention
was that the respondent was obliged to transfer ownership of the game.

[8] In any event, Mr Velden testified:
„Ja. --- Maar daar was definitief wild op die plaas.
. . .
En u aanvaar dat hierdie wild vir R2 miljoen verkoop is en gekoop is deur u kliënt: daaroor het
ons geen problem nie? --- Die wil[d] was verkoop vir R2 miljoen. Daar was „n ooreenkoms
aangegaan met mnr Norval vir die aankoop van die wild vir R2 miljoen, dis korrek.
Goed. Ek sê u het geen probleem daarmee dat hierdie wild vir R2 miljoen aangekoop is nie. Dit is
nie die probleem nie? --- Nee. Daar was „n koopkontrak met mnr Norval vir R2 miljoen.
Ja. --- Daar was „n ooreenkoms, ja.
. . .
Ja. Goed. So ons kan nou seker wees die wild wat hier ter sprake is, is definitief gelewer; ons
moet net vasstel wie het dit gelewer. --- Ja. Mnr Norval kon dit nie lewer nie want hy het nie
eiernaarskap gehad nie. So die enigste ander instansie wat kon gelewer het, is Flexivest, maar
kon Flexivest gelewer het indien hy nie verkoop het nie? So die wild was op die grond van
Flexivest.
. . .
Goed. Nou met hierdie skets wat u nou vir die Hof gee en die agtergrond, is ek nog steeds nie by
die antwoord nie. Ek wil weet: die R2 miljoen wat vir die wild betaal moes word – want ons is dit
eens: Hierdie wild op bl 13 is gekoop deur u kliënt vir R2 miljoen. --- Dit is gekoop vir R2 miljoen,
dis korrek.
En hy het dit nooi[t] betaal nie. --- Hy het dit nie betaal nie.‟

It was thus undisputed that: (a) there was an agreement between the parties in respect of
the sale of the game; (b) the game was on the farm at the time of the sale, and as a
consequence there had been delivery in terms of our law; and (c) despite delivery there
was no payment for the game. It must thus follow that the defence raised by the appellant
is contrived and disingenuous.

[9] In the result the following order is made:
The appeal is dismissed with costs.

_________________

R Pillay

Judge of Appeal

C H G Van der Merwe
Acting Judge of Appeal

APPEARANCES:

FOR APPELLANT:

J Muller SC

Instructed by:
Lombard & Kriek Attorneys, c/o MacGregor Stanford
Kruger, Cape Town

Webbers Attorneys, Bloemfontein

FOR RESPONDENT:

Mr S W W J Van Der Sandt

Instructed by: Hanekom & Bester Attorneys, c/o
Mauritz Briers, Cape Town
McIntyre & Van der Post Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 November 2015
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Köster v Norval (20609/14) [2015] ZASCA 185

The Supreme Court of Appeal (SCA) today dismissed an appeal against the order of the
Western Cape Division of the High Court, Cape Town, ordering the appellant to pay to the
respondent an amount of R2 million with interest together with costs.

The appellant and respondent had entered into an agreement for the sale of a game farm
in February 2004. At the same time, in a separate contract, the respondent sold to the
appellant all the game on the farm. When these contracts were entered into the farm, the

farming implements and the game formed the assets of a company known as Flexivest 6
(Pty) Ltd. In terms of the contract in respect of the sale of the game, the appellant was to
make payment of R2 million for the game five years after the contract was entered into.
When that period had elapsed the appellant refused to make payment to the respondent
who then sued him.

The appellant contended that he was not liable to make such payment in the light of the
fact that the respondent was not the owner of the game. It was found that ownership of a
thing is not an essential feature of the contract and sales by non-owners are quite
permissible. This is precisely what the court below found as also that the game stock was
on the farm and put at the disposal of the appellant when the latter took occupation of the
farm. The appellant indeed, with his son, traded with that game stock during the course of
the game farming business conducted thereafter.

This court found that all that was needed was for the respondent to deliver undisturbed
possession of the game and to warrant against eviction thereof. Having found that both
these requirements had been complied with, it accordingly dismissed the appeal with

costs.