THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number : 219/03
Reportable

In the matter between :
CONCOR HOLDINGS (PTY) LTD
t/a CONCOR TECHNICRETE
APPELLANT
and
HERMANUS PHILLIPUS POTGIETER
RESPONDENT
CORAM :
SCOTT, ZULMAN, FARLAM, CONRADIE, CLOETE JJA
HEARD :
21 MAY 2004
DELIVERED :  28 MAY 2004
ORDER:        In paragraph [14]
Summary:  Estoppel by conduct as defence to rei vindicatio ─ requirements for
representation clarified.
_________________________________________________________

JUDGMENT
CLOETE JA/

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 which
are in the respondent’s possession. The magistrate held that it is not. The
Pretoria High Court (Botha J, Patel J 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 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.’
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 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 directly to the site. They were laid on site, which
involved a number being cut to fit the terrain and layout and a
consequential high degree of wastage resulted. The respondent formally
admitted at the trial that the paving stones remained movables. The
respondent paid the builder for the works executed by him, which included
the paving stones. He testified that had he been aware of the reservation of
ownership clause, he would have ensured that the appellant was paid, and
this evidence was not challenged. The builder did not pay the appellant and
his estate was sequestrated.
[3] The appellant brought a rei vindicatio against the respondent for the
return of the paving stones. The respondent countered with a plea of
estoppel.
[4] The respondent was not represented before this court, but did not
concede the merits of the appeal. The primary question raised by the

appellant’s counsel was whether the appellant made a representation
which could found an estoppel. The court a quo reasoned as follows:
‘Ek vind dit moeilik om in te sien watter ander indruk die eiser kon geskep het, deur
plaveistene op ‘n bouperseel aan ‘n boukontrakteur af te lewer, stene wat getoets is om
in kleur by ander stene aan te pas, as dat die kontrakteur ten minste by magte was om
oor die stene te beskik. Die enigste logiese afleiding onder die omstandighede was dat
die kontrakteur die stene op die perseel vir die bouheer sou installeer. Onvermydelik het
dit die gevolg gehad dat hy in die proses die stene aan die bouheer verkoop het. Daar
was tussen die verweerder en die kontrakteur geen sprake van ‘n voorbehoud van
eiendomsreg nie… Die eiser het geen kennis gedra van wat die reëlings tussen die
verweerder en die kontrakteur was nie. Die eiser het geweet dat die bouheer nie vir
hom nie, maar vir die kontrakteur sou betaal. Onder die omstandighede meen ek dat die
waarskynlikhede daarop dui dat daar wel met die lewering van die  stene op die perseel
‘n voorstelling was dat die kontrakteur by magte was om oor die stene te beskik.’
[5] The appellant’s counsel submitted that this reasoning was wrong and
relied on a passage in B & B Hardware Distributors (Pty) Limited v
Administrator, Cape 1989 (1) SA 957 (A), subsequently followed by
Kannemeyer JP in Saflec Security Systems (Pty) Limited v Group Five
Building (East Cape) (Pty) Limited 1990 (4) SA 626 (E). In B & B, which
was a case concerning representation by conduct, Rabie ACJ said at 964I-
965B:

‘In order to found an estoppel, a representation must be precise and unambiguous.
(See Hartogh v National Bank 1907 TS 1092 at 1104, and the judgment of this Court in
the case of The Southern Life Association Limited v L C van Deventer  Beyleveld NO;
delivered on 22 September 1988 [1989 (1) SA 496 (A)]). In the present case, judging by
what is said in the papers, I am not sure that it can be said that the appellant, by
delivering the goods at the building site without informing the first respondent of its
reservation of ownership in the goods, clearly and unambiguously represented  to the
first respondent that Thomas Construction was the owner of the goods, or that it had the
jus disponendi in respect thereof. I do not, however, find it necessary to give a final
decision on this question…’
[6] In Saflec the facts were similar to the facts in the present case and
may be summarised as follows. The respondent contended that the
applicant was estopped from vindicating electronic metal detectors which it
had sold to a third party because the applicant knew that they would be
delivered to a construction site for a prison, which was being built for a
Government department, and that the equipment would therefore (in terms
of a standard clause in Government contracts) become the property of that
Government department on being brought onto the site. The respondent
further contended that by permitting or authorising delivery of the detectors
to the site, without advising the respondent of its reservation of ownership
therein, the applicant had represented to the respondent that the purchaser

of the equipment was the owner of the goods and/or that the purchaser had
the jus disponendi in respect thereof. Kannemeyer JP quoted the passage
from B & B set out above and went on to say (at 634J-635A):
‘As in that case, so too in the present case it seems to me that the alleged
representation relied on by the respondent is not an unequivocal one.’
[7] The test postulated in B & B that ‘in order to found an estoppel, a
representation must be precise and unambiguous’1 has been held to be a
correct reflection of our law in a case involving a representation in words.2
The present is not such a case and the correctness of the decisions which
lay down that test in such cases was not debated before us. It is therefore
unnecessary and undesirable to express a view in this regard. But the test
in regard to a representation made by conduct has been formulated
differently. Our law is that a person may be bound by a representation
constituted by conduct if the representor should reasonably have expected
that the representee might be misled by his conduct3 and if in

1 This is the position in England, at least in regard to a representation in words: Woodhouse A.C. Israel
Cocoa Ltd SA and Another v Nigerian Produce Marketing Co Ltd [1972] AC 741 (HL, E) which
establishes that the words have to bear only one reasonable meaning (Lord Hailsham at 756D-F).
2 Hartogh v National Bank 1907 TS 1092 at 1104; Southern Life Association Ltd v Beyleveld 1989 (1) SA
496 (A) 503I-504C, but such an approach has been criticised by Rabie LAWSA reissue vol 9 para 456
and Rabie and Sonnekus The Law of Estoppel in South Africa (2 ed) p 75 para 5.3.3.3. The counter-
argument is put forcefully by Lord Denning MR in the Woodhouse case referred to in n 1 above in the
Court of Appeal [1971] 2 QB 23 (CA) 59H-60H.
3 Strachan v Blackbeard and Son 1910 AD 282 at 288-9; Monzali v Smith 1929 AD 382 at 386; Poort
Sugar Planters (Pty) Ltd v Minister of Lands 1963 (3) SA 352 (A) at 364F-G; Union National South British

addition the representee acted reasonably in construing the representation
in the sense in which the representee did so. It is true that in Service Motor
Supplies (1956) (Pty) Limited v Hyper Investments (Pty) Limited 1961 (4)
SA 842 (A) at 848G-H Hoexter ACJ referred to ‘the only inference’ which
the representee ‘could possibly have drawn from the conduct of’ the
representor. But that this dictum reflects the facts in the particular case and
is not to be taken as the requirement in all cases, appears from the
subsequent decision of this court in Poort Sugar Planters (Pty) Limited v
Minister of Lands4 at 365A-C where Ogilvie Thompson JA, dealing with
conduct on which it was sought to found an estoppel, said:
‘Moreover, in my judgment, a representation, to found an estoppel, must (to borrow a
phrase from Halsbury, 3rd ed. vol. 15 para. 426) be such as will reasonably be
understood by the person to whom it is made in the sense contended for … [I]t does not
appear to me that respondent’s conduct … could reasonably have been understood by
appellant in the sense now contended for by it.’
Furthermore, Trollip J said in Electrolux (Pty) Limited v Khota 1961 (4) SA
244 (W) at 246A-C:
‘Consequently, I think that generally and logically the first enquiry should be into what
was the specific conduct of the owner that the respondent relies upon for the estoppel. If

Insurance Co Ltd v Padayachee 1985 (1) SA 551 (A) at 562I-562B.
4 Above n 3

that conduct is not such as would in the eyes of a reasonable person, in the same
position as the respondent, constitute a representation that the swindler was the owner
of, or entitled to dispose of, the articles, then cadit quaestio ─ no estoppel could then
arise. But if such conduct does beget that representation, then the next enquiry would
logically be whether the respondent relied upon, or was misled by, that representation in
buying the articles.’
[8] Both the passage in Poort Sugar Planters and in Electrolux just
quoted were referred to by Rabie JA as authorities in support of the
following finding in his judgment in Van Rooyen v Minister van Openbare
Werke en Gemeenskapsbou 1978 (2) SA 835 (A) at 849D-F:
‘Appellant se getuienis hou nie steek nie. Vanweë sy bekendheid met die inhoud van
die ooreenkoms, het hy geweet wat die bevoegdhede van die ingenieur was en het hy
geweet dat slegs die Sekretaris van die Departement, of sy gedelegeerde, onder
klousule 18 kon optree. Hieruit volg dat daar nie optrede aan die kant van die
Department was wat appellant redelikerwys onder die indruk kon gebring het dat die
streekverteenwoordiger bevoegd was om die ooreenkoms te repudieer nie.’
And in the first edition of his book The Law of Estoppel in South Africa
published in 1992, Mr Justice Rabie himself said5 that the court in B & B
‘referred to Hartogh v National Bank and to Southern Life Association Ltd v
Beyleveld NO and failed to note that in those cases the rule that the

presentation must be precise and unambiguous was mentioned in
connection with representations made by words’. The same comment by
the same learned author is to be found in the revised edition of LAWSA,
published in 19966.
[9] In view of the body of authority to which I have referred, including the
judgment of Rabie JA in Van Rooyen and his subsequent remarks
expressed extra-curially, I am driven to the respectful conclusion that the
statement in B & B incorrectly formulates the test for a representation by
conduct. The same criticism may be levelled at the decision in Saflec
where the test postulated was that the representation had to be
‘unequivocal’. 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.
[10] The appellant’s counsel placed much store by an alleged concession
wrung out of the respondent during cross-examination, which he submitted
was to the effect that any logical person, including Uys of the appellant,

5 Page 37
6 Vol 9 para 456

could have accepted that the respondent knew of a ‘general practice’
whereby ownership is reserved by the seller in building materials sold on
credit to a builder. The respondent’s evidence on this point is not clear from
the record inasmuch as a crucial answer given by him was not transcribed
in full. There was no evidence on record that the respondent
knew, or that Uys could reasonably have accepted that he knew, that
where building materials are sold on credit, the seller frequently or even
usually, much less invariably, reserves ownership in them until paid. At best
for the appellant the concession, if made, can only amount to this: That Uys
of the appellant was entitled to assume that the respondent knew that
sometimes building suppliers reserve ownership in goods sold on credit.
But that would not suffice to defeat the plea of estoppel. An owner’s rei
vindicatio can be defeated not only when the representation made by the
owner is that a third party is the owner, but also where the representation is
that the third person is entitled to transfer ownership to the representee.7 In
this latter regard there are the following important facts, all known to Uys.
The paving stones were going to form part of the works being constructed
by the builder for the respondent. They were purchased for that specific

7 Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk 1996 (3) SA 273 (A) 284I-J, the cases
quoted at 286H-288E and the conclusion reached at 288C.

purpose. Without them, the building works

could not be completed. The colour of the majority was chosen to match
the building. A number had to be cut and fitted. Although, on the evidence
of Uys, they could without difficulty be picked up, it is clear that some effort
would have been required to perform this task bearing in mind the area
(some 570 m²) and the fact that they had been embedded in a sand base.
All of these facts suggest that the paving stones, once laid, were going to
remain permanently in place and the admission by the respondent that they
remained movables does not  detract from this ─ it merely has the effect
that the respondent is precluded from arguing that he became the owner of
the paving stones by accessio.
[11] In the circumstances the conduct of the appellant could, despite the
alleged concession, reasonably have been expected to mislead the
respondent into believing that the builder (even if not the owner) had the
right to transfer ownership in the paving stones; and furthermore, the
respondent acted reasonably in forming the belief which he did: cf the
reasoning in Konstanz Properties (Pty) Limited v Wm Spilhaus & Kie (WP)
Beperk (above, n 7) at 286E-288D, and the autorities there quoted, none of
which it is necessary to repeat.
[12] The appellant also put in issue whether it was negligent. It clearly

was. The alienation of the paving stones in question by the builder to the
respondent took place with the approval and in accordance with the
expectations of the appellant ─ that was the very purpose for which they
were supplied. The builder was entitled to dispose of them in the ordinary
course of the building operations undertaken for the respondent, even
before he made payment to the appellant ─ indeed, they were required
urgently, and it could therefore have been expected that they would be laid
quickly. The appellant must have been aware of the possibility that the
builder might not pay the amount owing to it ─ it was for that very reason
that the appellant reserved ownership in the paving stones. But the
reservation of ownership created the further foreseeable possibility which
the appellant did not guard against, namely, that the respondent would pay
for the paving stones once they had been laid, in the belief that he would
thereby become the owner. The reasoning in Konstanz Properties at 288D-
I which I have largely paraphrased in this paragraph is directly applicable
and it is decisively against the appellant on this point.
[13] The other requirements of estoppel were not put in issue by the
appellant, and rightly so. They accordingly do not require consideration.

[14] The appeal is dismissed, with costs.
______________
T D CLOETE
JUDGE OF APPEAL
Concur:
Scott JA
Zulman JA
Farlam JA
Conradie JA