THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 396/19
In the matter between:

GRIEKWALAND WES KORPORATIEF BEPERK        APPELLANT
and
STANDARD BANK OF SOUTH AFRICA LIMITED    RESPONDENT

Neutral citation: Griekwaland Wes Korporatief Beperk v Standard Bank of
South Africa Limited (Case no 396/19) [2020] ZASCA 10
(19 March 2020)

Coram:
NAVSA, MOLEMELA and PLASKET JJA and LEDWABA
and GORVEN AJJA

Heard:
12 March 2020
Delivered: 19 March 2020

Summary:  Claim to ownership – identification – documentary evidence –
whether the evidence adduced proved ownership.

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ORDER
_____________________________________________________________

On appeal from: Free State Division of the High Court (Jordaan J, sitting as
court of first instance):
The appeal is dismissed with costs, such costs to include those consequent on
the employment of two counsel where this was done.
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JUDGMENT
________________________________________________________________________

Gorven AJA (Navsa, Molemela and Plasket JJA and Ledwaba AJA
concurring)

[1] This appeal concerns the ownership of 306 beef calves. Vierfontein
Voerkraal (Eiendoms) Beperk (Vierfontein) ran a cattle feedlot business on
its farm (the farm). The appellant concluded two sets of written agreements
with Vierfontein. The first was a series of Liaison Service Transactions
(LSTs). In these, the appellant was reflected as an agent and charged
commission. Vierfontein was reflected as the purchaser. The series of LSTs
reflected that 306 calves had been purchased for Vierfontein from various
sellers in a number of transactions. The appellant paid the sellers and arranged
transport of the calves to Vierfontein’s farm. It then invoiced Vierfontein for
the purchase price, its commission and transport costs. The second agreement
was termed a Non-Production Credit Facility. This provided Vierfontein with
credit of R3 million.

[2] The respondent held a general notarial bond over all movables owned
by Vierfontein. On 16 March 2018 it obtained an order that it could perfect its
security under this bond. In executing the order, the sheriff attached all of the
livestock on the farm. Vierfontein was provisionally liquidated on 12 April
2018 and finally liquidated thereafter.

[3] The appellant claimed to own 306 calves of those attached. It brought
an ex parte Anton Piller application, ostensibly to obtain documents and
related evidence as to its assertion of ownership. It obtained an order on
14 May 2018 and executed it on 15 May, 18 May and 14 June at the farm.
This resulted in 306 calves being pointed out as those claimed by the
appellant. The appellant thereafter supplemented the application to apply for
a declaration that it was the owner of those 306 calves. The appellant claimed
ownership based on certain terms of the LSTs and the credit facility.

[4] The respondent opposed this relief. The opposition had three essential
grounds. The respondent had invited the appellant to identify those attached
calves which it claimed to own. The respondent was not satisfied that the
appellant had done so or could do so. The first ground of opposition, therefore,
was that the respondent disputed that the appellant could identify the claimed
306 calves. Secondly, it denied that, in law, the appellant became owner of
any of the calves purchased pursuant to the LSTs. Finally, it contended that,
if it was held that ownership had passed to the appellant as a result of the credit
agreement, the provisions of s 84 of the Insolvency Act1 applied.

1 Insolvency Act 24 of 1936. Section 84 reads:
‘(1) If any property was delivered to a person (hereinafter referred to as the debtor) under a transaction that
is an instalment agreement contemplated in paragraph (a), (b), and (c) (i) of the definition of 'instalment
agreement' set out in section 1 of the National Credit Act, 2005 (Act 34 of 2005), such a transaction shall be

[5] The matter came before Jordaan J in the Free State Division of the High
Court. He did find that the appellant had proved that the 306 calves identified
by it pursuant to the Anton Piller order were those purchased under the LSTs.
However, he held that the appellant had not proved ownership of the cattle
which had been attached. For example, the LSTs, by virtue of which all of the
calves were purchased, reflected Vierfontein as purchaser and the appellant as
agent. The appellant reflected a commission payable on each LST. This was
payable as the agent of Vierfontein. As a result, he found that it could not be
said that the various sellers intended to transfer ownership to anyone other
than Vierfontein. The application for a declaration of ownership was
dismissed with costs but leave to appeal to this court was granted by the court
of first instance.

[6] The onus rests on the appellant to prove ownership. It conceded in
argument that there was no admissible evidence identifying the calves
purchased as being any of those which had been attached. All that was
produced in the application was a series of documents whose provenance was
not attested to. The concessions were correctly made. It need hardly be said
that, as a result, the appellant was unable to discharge the onus. This, too, was
correctly conceded. This means that, even if the appellant could show that it
obtained or reserved ownership by virtue of the two sets of agreements, it

regarded on the sequestration of the debtor's estate as creating in favour of the other party to the transaction
(hereinafter referred to as the creditor) a hypothec over that property whereby the amount still due to him
under the transaction is secured. The trustee of the debtor's insolvent estate shall, if required by the creditor,
deliver the property to him, and thereupon the creditor shall be deemed to be holding that property as security
for his claim and the provisions of section 83 shall apply.
(2) If the debtor returned the property to the creditor within a period of one month prior to the sequestration
of the debtor's estate, the trustee may demand that the creditor deliver to him that property or the value thereof
at the date when it was so returned to the creditor, subject to payment to the creditor by the trustee or to
deduction from the value (as the case may be) of the difference between the total amount payable under the
said transaction and the total amount actually paid thereunder. If the property is delivered to the trustee the
provisions of subsection (1) shall apply.’

cannot succeed. The second and third grounds of opposition accordingly need
not be dealt with. The conclusion of the court of first instance that the
appellant had failed to prove ownership cannot be faulted. This means that the
appeal must fail. Both parties utilised two counsel and it is appropriate that
the costs order include provision for this.

[7] In the result, the appeal is dismissed with costs, such costs to include
those consequent on the employment of two counsel where this was done.

________________________
GORVEN AJA
ACTING JUDGE OF APPEAL

Appearances

For appellant:
B Knoetze SC, with him JG Gilliland

Instructed by:
Van De Wall & Partners, Kimberley
Blair Attorneys, Bloemfontein

For respondent:
P Zietsman SC, with him J Els.
Instructed by:
Phatshoane Henney Incorporated, Bloemfontein.