THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable /
CASE  NO: 77/2003
In the matter between :
IKEA TRADING UND DESIGN AG
Appellant
and
BOE BANK LTD
Respondent
_______________________________________________________________________
Before:
ZULMAN, FARLAM, NUGENT, LEWIS JJA & PONNAN AJA
Heard:
18 MARCH 2004
Delivered:
1 APRIL 2004
Summary:
Meaning of s 1(1) of the Security by Means of Movable Property Act
57 of 1993:  description of property in a notarial bond must be such
that it is readily recognisable from the description alone: resort to
evidence that supplements the description is impermissible.
_______________________________________________________________________
J U D G M E N T
_______________________________________________________________________
CH LEWIS  JA

[1] The meaning of s 1(1) of the Security by Means of Movable
Property Act 57 of 1993 is squarely in issue in this appeal. The
section provides:
‘1
Legal consequences of special notarial bond over movable
property
(1) If a notarial bond hypothecating corporeal movable property
specified and described in the bond in a manner which renders it readily
recognizable, is registered after the commencement of this Act in accordance
with the Deeds Registries Act, 1937 (Act 47 of 1937), such property shall-
(a)
subject to any encumbrance resting upon it on the date of
registration of the bond; and
(b)
notwithstanding the fact that it has not been delivered to
the mortgagee,
be deemed to have been pledged to the mortgagee as effectually as if it had
expressly been pledged and delivered to the mortgagee.’

The central issue is whether a bond registered under the section
complied with its requirements such that the ‘mortgagee’ had
security in the movable property referred to in the bond, and thus
ranked as a secured creditor when the debtor was liquidated.
[2] The first respondent, BOE Bank, is the holder of a general
covering notarial bond passed in its favour by Woodlam Industries
CC (‘Woodlam’) over the latter’s assets in 1991. Woodlam was
placed in final liquidation on 28 October 1999. BOE Bank applied
to the Eastern Cape High Court for an order that  the liquidation
and distribution account in respect of Woodlam Industries CC  be
redrawn so as to reflect its preference by virtue of that bond. At the
time of liquidation Woodlam owed BOE Bank R2 403 852.20. The
first and second respondents are the liquidators of Woodlam, the

first respondent having been responsible for the drawing of the
distribution and liquidation account.
[3] The appellant, the third respondent in the court of first
instance, is Ikea Trading und Design AG (‘Ikea’), which in 1998
had had registered in its favour a special bond, purportedly under s
1(1) of the Act, over assets of Woodlam listed in a schedule to the
bond. The basis on which BOE Bank has attacked this bond is that
it did not comply with the requirements of the section in specifying
and describing the assets referred to in the bond in a manner
which rendered the assets readily recognisable, and that the bond
accordingly did not confer on Ikea real security over the items
listed. The liquidation and distribution account reflected the sum
owing by Woodlam to Ikea as R2 619 951.44.

[4] BOE Bank succeeded before Mbenenge AJ in the court
below in obtaining an order (1) directing the first respondent to
redraw the liquidation and distribution account; (2) declaring that
the descriptions of the assets referred to in  Ikea’s ‘mortgage bond’
did not specify the relevant assets in a manner that rendered them
‘readily recognisable’; and (3) declaring that the bond registered in
1991 in favour of BOE Bank conferred a preference on it such that
BOE Bank’s claim was to rank ahead of Ikea’s, and other preferent
concurrent claims. Ikea now appeals against the order with the
leave of this court.
[5] The principal contention of Ikea on appeal is that the
property listed in the bond that was registered pursuant to s 1(1) of
the Act  can be identified with the aid of extrinsic evidence: thus, it

argues, it has a deemed pledge in them, and accordingly ranks as
a secured creditor in the estate of Woodlam.
[6] BOE Bank contends, on the other hand, that the assets must
be identifiable from the bond itself, and that extrinsic evidence
cannot be led to establish what they are. If such evidence were
admissible, then creditors of the pledgor, and of course
prospective purchasers, might well be defrauded. The purpose of
the section, argues BOE Bank, is to create a deemed pledge that
gives to third parties the same notice as would a real pledge – one
that requires actual delivery of the assets secured to the pledgee.
If the bond does not constitute notice itself – but has to be read
with reference to other documents or identification outside of the
bond – then the object of the legislation would be defeated.

[7] It is clear that without reference to invoices and other
documents in respect of the items enumerated, or without the
intervention of some person who is able to say (with or without
reference to Ikea’s documentation) that the particular item listed is
subject to the bond, the items cannot be identified as those listed
in the bond. The assets allegedly bonded are set out in an
annexure to the bond. It is a schedule with three columns. The
schedule divides the assets into different categories: ‘machinery’,
‘vehicles’ and ‘factory equipment’. The headings of the three
columns for machinery are, respectively, ‘Description’, ‘Date of
Acquisition’ and ‘Supplier’. It is perhaps useful to give some
examples, randomly chosen, at this stage.
‘Grecon Optimiser: 1 Aug 1991: Grencor
Weinig Moulder and Infeed: 1 Aug 1990: Weinig
Nipples and Couples: 30 May 1991: Atlas Airpower

Rip Saw: 1 Aug 1990: Braun Woodwork.’
Vehicles include ‘Mercedes Truck’; ‘Forklift’; ‘Uno X 2’; ‘Truck with
crane’. Factory equipment includes items such as ‘3 roller table
trolleys’, ‘tube caps and steel plates’, ’10 T-bar cramps’. The list of
all these items extends over 12  A4 pages.
[8] How, asks BOE Bank, does one determine what a ‘Grecon
Optimiser’ is, let alone which one (if there is more than one item of
the same name) is subject to the bond? How does one determine
which Mercedes truck or Uno vehicle is bonded? Ikea responds by
saying that one must have regard to the invoices for each item,
which  together constitute an asset register, and, where necessary,
to the evidence of a former employee of Woodlam who is able to
identify the machinery.

[9] However, it was clear from the evidence of the manager of
BOE Bank and others that even where a machine could be
identified, for example as a Grecon Optimiser, there was no way in
which one could tell that it was the particular machine referred to in
the bond. Reference to invoices, or to the suppliers or
manufacturers, did not assist in this regard. Not a single item,
contended BOE Bank, could be determined by reference to the
bond alone. Not only were the descriptions in many instances
vague, but there was no means of identifying even the most
valuable of machinery and vehicles as the ones that had been
bonded.
[10] The test for determining whether an item is ‘readily
recognisable’ from the bond in terms of s 1(1), contends BOE
Bank, is whether third parties can determine the identity of each

asset without regard to extrinsic evidence. This is essential, it
argues, to avoid fraud and controversy, and leave no room for
conflict.
[11] In my view, the correctness of this test is evident from the
wording of the section itself: the property must be ‘specified and
described in the bond in a manner which renders it readily
recognisable’ (my emphasis). Of course the description of the
property in the bond must be related to the reality on the ground. In
dealing with a contract for the sale of land, where the material
terms are required by statute to be in writing, Watermeyer CJ said
in Van Wyk v Rottcher’s Saw Mills (Pty) Ltd 1948 (1) SA 983 (A) at
990:
‘A contract of sale of land in writing is in itself a mere abstraction, it consists of
ideas expressed in words, but the relationship of those ideas to the concrete

things which the ideas represent cannot be understood without evidence. . . .
In a Court of law, of course, in every case evidence is essential in order to
identify the thing which corresponds to the idea expressed in the words of the
written contract. The abstract mental conception produced by the words has
to be translated into the concrete reality on the ground by evidence.’
But evidence of that nature does not supplement the document. It
simply correlates the description with the property.1
[12] In the present case Ikea seeks to interpose another source
of identification of the property – a person who will say from his
own knowledge, or from reference to Ikea’s records, whether a
particular item was acquired from a particular supplier on a
particular date. That entails recognition by virtue of reference to a
person or another document, and not recognition from the bond
itself. That kind of extrinsic evidence is inadmissible because it

does not explain the bond or relate the description to the property,
but seeks rather to supplement it.
[13] Where one is dealing not just with the interpretation of a
contract between parties, but with an instrument creating a real
right, which avails against third parties, there cannot be anything
more added to the instrument. The third party must be able to take
the document and identify the ‘reality on the ground’ by reference
to the document alone, correlating the description in it and the
property that fits the description.
[14] This conclusion is reinforced by having regard to decisions of
the erstwhile Natal courts that dealt with similar legislation
applicable, until the passing of the Security by Means of Movable

1 See also Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA) paras 6

Property Act, in that province (the Notarial Bonds (Natal) Act 18 of
1932 (the ‘Natal Act’)). It is not necessary to deal with the history of
that legislation here. Suffice it to say that in Natal the courts had
recognised that a notarial bond could confer on the holder not only
a preference on the insolvency of the debtor (as was assumed to
be the case elsewhere in the country) but also a secured right in
the assets bonded. The Natal legislation was passed in order to
restore the rights that bondholders in Natal had held prior to an
amendment to the Insolvency Act 32 of 1916.  The development of
the law relating to the Natal bondholder’s position, and the
legislation enacted to restore it, are fully discussed in several
cases, including In re Umlaas Wool Washing and Milling Co Ltd (in
liquidation) 1934 NPD 18; Rosenbach & Co (Pty) Ltd v Dalmonte

and 14 and the cases there cited.

1964 (2) SA 195 (N) and Nedbank Ltd v Norton 1987 (3) SA 619
(N).
[15] The current Act was intended to extend the availability of the
security made possible by the Natal Act to South Africa as a
whole.2  Case law dealing with the Natal Act thus remains of some
relevance in interpreting s 1(1) of the current Act. It is significant,
however, that the wording of the Natal Act is different. Section 1
provided that the Act applied ‘only to movables situate within the
Province of Natal, and shall apply to a notarial bond only in so far
as such bond hypothecates movables specially described and
enumerated therein: . . .’ (my emphasis).

2 The Act was passed pursuant to the recommendations of the South African Law
Commission contained in a report entitled ‘Report on the giving of security by means of
movable property’, published in February 1991. Paragraph 5.5.1 of the report expressly states
that the notarial bond in Natal should be extended to the rest of the Republic. See also

[16] In the Rosenbach case, above, Caney J (delivering the
judgment of the full court) stated that the Natal Act was ‘concerned
to prescribe safeguards in the interests of other creditors by
requiring definition of the movables hypothecated ‘in order to
render identification as easy as possible with a view to shutting the
door to frauds and reducing controversy to a minimum’ (at 201H-
202A).  The learned judge thus held (at 204G-205A) that –
‘[I]t is not a compliance with the Statute to describe the assets to be
hypothecated in wide general terms, as “goods, wares, merchandise, stock-in-
trade, fixtures, fittings, furniture and appliances”. It is necessary to know what
are the goods, wares, merchandise and so on, the nature of them and the
types or kind of each of them, and also the number of them, (eg so many 1 lb
tins of A make of jam, so many of B make, so many 5 lb tins of C make
biscuits, so many rolls of suiting material and of dress material and so on, as
in a stock list) described so that at any given moment they may be identified;

Bokomo v Standard Bank van SA Bpk 1996 (4) SA 450 (C) at 454E-F and 17 Lawsa

so, also, with the fixtures, fittings, furniture and appliances and any other
movables. It is necessary to know particulars of them, of what they consist, in
detail,  . . .’ .
[17] In reaching this conclusion the court had regard to several
English cases dealing with bills of sale, governed by a statute that
required an inventory of chattels ‘specifically described’. In
Carpenter v Dean [1889] 23 QBD 566 Fry LJ said (in a passage
quoted in Rosenbach at 205E-G) that the words ‘specifically
described’ were used
‘ . . . to facilitate the identification of the articles enumerated in the schedule
with those found in the possession of the grantor – that is to say, to render the
identification as easy as possible, and to render any dispute as to the
intention of the parties as rare as possible, and to shut the door to fraud and
controversy, which almost always arise when general descriptions are used.

(reissue) para 516. Section 1(3) of the Act regulates the effect of any other notarial bond

That is to be done as far as possible; by which I mean, as far as is reasonably
possible – so far as a careful man of business trying to carry the object of the
Act into execution could and would do without going into unreasonable
particulars.’
[18] All the more so should this be the case where the written
document is not merely a contract, but also an instrument
hypothecating property. The need for certainty from the instrument
itself is not only to achieve clarity for the parties: an instrument that
gives rise to a real right of security also constitutes notice to third
parties that the assets are bonded. For such notice to be effective
third parties must be able to determine from its terms that the
property is subject to another’s right – that that particular thing is
encumbered.

registered before the commencement of the Act (7 May 1993).

[19] In my view the learned judge in the court below was correct
in finding that the legislature, when enacting the Act, must be
assumed to have been aware of the provisions of the Natal Act,
and the cases that interpreted it. The introduction of the phrase
‘readily recognisable’, and the use of the words ‘specified and
described’ (instead of ‘specially enumerated’, the term used in the
Natal Act) indicate that the legislature intended a stricter test to be
applied than did the Natal Act. It would thus not be sufficient to
describe the property by reference to quantity and kind (as was
suggested by Caney J in Rosenbach): the property itself must be
‘specified’.
[20] ‘Specify’, according to the Shorter Oxford English Dictionary,
means ‘To mention, speak of, or name (something) definitely or
explicitly; to set down or state categorically or particularly; to relate

in detail’. ‘Describe’ means ‘To set forth in words by reference to
characteristics; to give a detailed or graphic account of’. ‘Readily’
means ‘Quickly, without delay; also without difficulty, with ease or
facility’. ‘Recognisable’ means ‘Capable of being recognised’, and
‘recognise’ means ‘To know by means of some distinctive feature;
to identify from knowledge of appearance or character’.3
[21] In my view, therefore, for property to be pledged in
accordance with s 1(1) of the Act the unique item of property must
be readily recognisable from its description in the bond. Whether
or not expertise is required in order to correlate the property and
the description is not the point. It must be capable of being done
merely from the description in the bond. Where a generic item is
sought to be pledged it is the unique item that is the subject of the

3 These definitions are appropriate samples of the meanings attributed in the Shorter OED

pledge and it is not enough to describe it only with reference to its
generic characteristics. Nor is it sufficient to describe generic items
with reference to the source or date of acquisition, as in this case,
for then they are recognisable not from the description in the bond
but rather from an external source. A member of the public must
be able to establish from the information lodged at the deeds office
whether particular assets of a debtor have been pledged (whether
or not he requires expert knowledge to do so).
[22] Section 1(1) states that the movable property bonded is
‘deemed to have been pledged’ as ‘effectually as if it had expressly
been pledged and delivered to the mortgagee’. In my view,
therefore, the bond must, in so far as possible, have the same
characteristics as does a pledge. Third parties must be able to tell,

and are not exhaustive.

without reference to extrinsic evidence, that the creditor has a right
in the property pledged. For a pledge to be valid the creditor
(pledgee) must be in possession of the property. That is why a
pledge cannot be effected by constitutum possessorium.4 If the
owner of the property were to remain in possession of the
property, the likelihood that third parties, such as other creditors or
prospective purchasers, would be deceived would be greatly
increased. The fact of actual physical control of the pledged
property constitutes notice to the world that someone other than
the owner has a right in the property, and in particular, the power
to control the property. Thus for property to be deemed to be
pledged, under s 1(1) of the Act,  the bond in question must,
without reference to the owner or anyone else, make readily
identifiable the property so pledged. Any person seeking to

4 See, for example, Goldinger’s Trustee v Whitelaw & Son 1917 AD 66 and Vasco Dry

establish, from information in a deeds office, whether a debtor’s
property is encumbered, must be able to do so from the bond
itself.
[23] The importance of being able to determine the asset pledged
from the bond itself was emphasised in relation to the Natal Act in
Durmalingam v Bruce NO 1964 (1) SA 807 (D) at 812G-813B. In
holding that the ‘public generally’ should be able to identify the
property bonded, without recourse to extrinsic evidence, Friedman
AJ stated that the purpose of requiring movables to be ‘specially
described and enumerated’ was to ‘give notice to the public
generally of the movables specially hypothecated under the bond’.
Thus, the court held, a term could not be implied into the bond in
question since the implication would depend on the leading of

Cleaners v Twycross 1979 (1) SA 603 (A) at 611G-612D.

extrinsic evidence of facts known only to the parties – and that
would inevitably be to their prejudice.
[24] The consequence of that is that one cannot simply
enumerate items in a bond and create a deemed pledge without
more. The property must be so described that only it, and not other
property of like kind, can be identified as that which is pledged. In
my view there should be no difficulty in identifying machinery,
vehicles, even furniture, that is bonded by reference to labels,
numbers or bar codes. The Grecon Optimiser, or the Uno vehicle –
each of the assets enumerated – could be given an identifying
mark referred to in the bond. The third party would then readily be
able to recognise the thing from the reference in the bond. What is
essential is that each item pledged must be recognisable from its
description in the bond.

[25] The notarial bond registered by Ikea over the movable
property of Woodlam accordingly does not meet the requirements
of s 1(1) of the Act. The assets enumerated are not specified and
described in the manner required by the section. That some of
them could be, and indeed were, identified with the aid of extrinsic
evidence does not help Ikea. Third parties – indeed even the
liquidators – were not able to take the bond and correlate the so-
called descriptions with the assets on the factory floor. In the
circumstances the bond did not create a deemed pledge over the
property of Woodlam, and Ikea was not a secured creditor.
[26] The appeal is accordingly dismissed with costs.
_____________

C H Lewis
Judge of Appeal
Concur:
Zulman JA
Farlam JA
Nugent JA
Ponnan AJA