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Cooper and Others v Dabbs (92/2003)  ZANWHC 24 (1 October 2004)
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CASE NO 92\2003
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
BRIAN ST CLAIR COOPER APPELLANTS
FERDINAND ZONDACH NNO
JOHN DABBS RESPONDENT
FULL BENCH APPEAL
MOGOENG JP; NKABINDE J; MOKGOATLHENG AJ;
FOR THE APPELLANTS : H LEVER SC
FOR THE RESPONDENT : J H F PISTOR
DATE OF HEARING: 20 AUGUST 2003
DATE OF JUDGMENT : OCTOBER 2004
 The Appellants are the judicial managers of the North West Development Corporation Pty Ltd, a statutory company, under final judicial management with limited liability duly incorporated in terms of an extraordinary Provincial Gazette No 5350, with its registered address situated at Development House; University Drive, Mmabatho.
 The Respondent is John Dabbs an adult male business man presently residing in the United States of America.
 The Fourth Respondent is Ward P Aviation CC a Close Corporation, incorporated in terms of the Close Corporation Act 69\1984 with its principal place of business situated at Mmabatho International Airport.
 On the 13th May 1997, the Respondent entered into an agreement of sale with the Fourth Respondent in terms whereof Respondent purchased a Zen-Air Sky-Jeep Aircraft from the Fourth Respondent for an amount of R194 520.00.
 On the 31st January 2002, the Appellants applied under Case Number 16\2002 for an order authorising them to attach movable property of the Fourth Respondent wherein they bought the perfection of their rights under two notarial bonds granted in their favour by the Fourth Respondent and Nicholas Jon Downie, who was then a member of the Fourth Respondent.
 On the 1st February 2002 pursuant to an order issued by this Honourable Court in the aforesaid application, the Deputy Sheriff attached the Zen-Air Sky-Jeep Aircraft on the premises of the Fourth Respondent.
 Consequent to the aforesaid attachment, the Respondent instituted these proceedings in this Honourable Court on Notice of Motion wherein he sought, and obtained an order delivered by Landman JA declaring:
(a) That the Zen-Air Sky-Jeep Aircraft attached by the Deputy Sheriff on the 1st February 2002 in terms of an order granted under Case Number 16\2002, be released to the Applicant or his duly authorised representative, effectively Respondent was declared the owner of the Zen-Air Sky-Jeep Aircraft.
(b) The Appellants are ordered to pay the costs of the application.
The Appellants withe leave of the Court a quo, now appeal against the decision declaring the Respondent the owner of the Zen-Air Sky-Jeep Aircraft.
A summary of the grounds of Appeal are as follows:
 The Court a quo erred in law and on fact by finding that delivery of the Zen-Air Sky-Jeep Aircraft was effected possessorium in terms of the constitution.
 The Court a quo erred in law and on fact by ignoring that the Respondent did not plead that delivery of the Zen-Air Sky-Jeep Aircraft eventuated.
 The Court a quo erred on fact by finding that a passage in the email communication constituted a clear unambiguous declaration that there had been a change of ownership, further that there was a corresponding change of mind in respect of the Respondent which had the effect of imbuing him with the ownership of the Zen-Air Sky-Jeep Aircraft.
 The Court a quo erred in law and on fact by ignoring the provisions of the agreement of sale, which provided for the physical delivery of the Zen-Air Sky-Jeep Aircraft, and which provided further that changes to the agreement were not binding unless reduced to writing.
(a) The Respondent in his founding affidavit makes averments; that on the 13 May 1997 he entered into an agreement of sale with the Fourth Respondent in terms whereof he purchased a Zen-Air Sky-Jeep Aircraft for an amount of R194 520.00 which he fully paid.
(b) The delivery of the Zen-Air Sky-Jeep Aircraft was by agreement scheduled to occur on the 31st August 1997. Due to various factors delivery of the aircraft was postponed ......
(c) The Respondent had relocated to the United States he realised that the shipping of the aircraft to the United States would not be economically viable. Respondent then negotiated with Nick Downie, the Fourth Respondent to find a purchaser for the aircraft on his behalf.
(d) On the 29th June 1998 the Respondent suggested cancellation of the agreement of sale, but the Fourth Respondent repudiated such cancellation.
(e) The Fourth Respondent offered to purchase the aircraft from the Respondent for a crop spraying business, venture subject to the said business eventuating. The Respondent in terms of clause 4(iv)(a) of the agreement of sale, requested the Fourth Respondent to arrange insurance on his behalf, and procure an insurance quotation.
(f) The Respondent who was in the United States requested the Fourth Respondent to arrange for the registration of the aircraft on his behalf; this was necessary as the aircraft could not be tested without registration.
(g) The Respondent ‘s Attorney H Wissing on his instructions advised the Appellants that the aircraft belongs to the Respondent;
(h) The Respondent’s Attorney H Wissing advised Appellants that the Respondent was desirous to sell his aircraft that a prospective buyer a certain Mr Bothma was already lined up, in this regard the offer to purchase was accepted but that the prospective sale was now threatened by Appellants refusal to release aircraft from attachment to allow the Respondent to take possession of his aircraft. The Appellants were put on terms to release Respondents aircraft by the 18th June 2003 failing an application was to be launched to protect Respondents interest and mitigate the loss he may suffer as a result of Appellants conduct.
(i) Nick Downie a former member of the Fourth Respondent deposed to an affidavit in Case Number 16\2002 referred to above, that the Zen-Air Sky-Jeep Aircraft belonged to the Respondent and was been stored there for someone else that is the Respondent. The said aircraft did not belong to the Fourth Respondent.
(j) Susan van den Brink in her affidavit in support of Respondents application confirms that,
(a) The Respondent purchased the Zen-Air Sky-Jeep Aircraft and fully paid the purchase price.
(b) The Fourth Respondent after payment of the purchase price, considered the aircraft as the property of the Respondent.
(c) The Zen-Air Sky-Jeep Aircraft never formed part of the assets of the Fourth Respondent, this aircraft as far as she is concerned belongs to the Respondent.
(d) Nick Downie informed the Appellants during their investigations, that the Zen-Air Sky-Jeep Aircraft belonged to the Respondent, and did (p12.....?)
The Appellants submission is coughed in the form of an exception in the case of pleadings namely that the Respondent’s founding affidavit disclose a cause of action, alternatively that founding affidavit lacked the necessary allegations to constitute a cause of action.
No allegation that delivery eventuated.
Respondent has failed to show that he had a real right or jus in rem to the aircraft. The agreement of sale only vested the Respondent with a personal right or jus in personam.
The Respondent did not in its founding affidavit allege that delivery of the aircraft had taken place by constitutum possessorium.
The Respondent has failed to allege “the complete chain of relevant facts relied upon” to justify the conclusion that delivery was effected.
Respondent deferred delivery but as no mention is made of the date of deferment; the inference is that delivery never took place.
In terms of the contract of sale actual physical delivery was contemplated, and this did not eventuate.
No allegation of delivery taking place by some symbolic or constructive mechanism in founding affidavit, and accordingly the Appellant did not have an opportunity to evaluate the validity of such an allegation.
The Appellants submissions
 avers application is fatally defective in that insufficient grounds have been established entitling the Application to the relief he seeks.
 Concedes applicant has made out a case for the existence of a contract of sale between himself and W & P Aviation CC.
 Contract gives rise to rights in personam not which PPL can enforce against W & P Aviation CC.
 The Respondents were not parties to that agreement and the terms thereof cannot be enforced against them.
 The Applicant has failed to establish ownership to the aircraft in order to succeed against the Respondents.
 The contract of sale only vests ownership on the purchaser after delivery has been effected.
 The Applicant in para 17 of his founding affidavit states that the aircraft “belongs to me”. This submits the Respondent is on conclusion of law, the facts on which this conclusion is drawn have not been disclosed.
 According to Applicants founding affidavit the date of delivery was deferred, no allegation of delivery or transfer of possession is made, no evidence is adduced to that effect.
 On reading the founding affidavit as a whole no reference is ever made to a transfer of possession which was ver made, this suggests that it never took place.
 I believe that transfer ever took place, it would have been mentioned and it certainly was not.
 There is an essential element lacking in the founding affidavit and for this reason, the application should fail.
 The submission by Susan van den Brink to the effect that “the aircraft was considered by us (Close Corporations) to be the property of the client” does not advance the Applicants’ case. Again there is no allegation of the transfer of ownership.
 Susan van den Brink is simply saying as between the Close Corporation and the Applicant, the Close Corporation had no claim to the aircraft and that the Applicant having paid for it was entitled to it.
 Susan van den Brink in other words was merely re-asserting, the Applicants’ personal right to claim the aircraft.
 Susan van den Brink is not in position to establish a real right on the part of the Applicant or ownership on the legal sense of the term.
The Appellants in their answering affidavit do not dispute the averments as set out in the Respondent’s founding affidavit. The gravamen of Respondents case is that he is the lawful owner of the Zen-Air Sky-Jeep Aircraft; The Appellants in contradiction that Respondent’s application contend is fatally defective in that insufficient grounds have been established entitling the Respondent to ownership of the aircraft. The Respondent has only established a personal right a jus in personam, enforceable against the Fourth Respondent at a unsecured concurrent creditor. The Respondent has not established a real right or jus in rem to the aircraft enforceable against the Appellants
The agreement of sale in law does not vest ownership of the aircraft on the Respondent pursuant to a contract of sale, delivery has to be effected before ownership will vest in the Respondent.
The relief sought by the Appellants is final of nature and there is a dispute of fact regarding ownership of the aircraft, real and genuine dispute of fact must be resolved by applying the principle expounded in the case of Plascon-Evans Paints Ltd v van Riebeeck Paints  ZASCA 51; 1984 (3) SA 623 (A) at 634 E - G. The relief sought may be granted only if the facts stated by the Appellants, together with the facts in the Respondent’s affidavits warrant the granting thereof. The fact that the Respondent did not file a replying affidavit in my view does not detract from this principle as the only real dispute is between the parties concern ownership; all other facts are common cause.
The Appellants in essence do not dispute the Respondents averments in the absence of a real and bona fide dispute of facts in the Appellants; answering affidavit; this appeal has to be decided on the Respondents version with regard to the establishment of the intention of the Respondents and Fourth Respondent intention to the contract of sale, the respective parties interpretation of the contract of sale with regard to the conduct of the parties in the execution of their respective obligations with regard to the permissible use of background and surrounding circumstances especially where a third party the Appellants in caisu question the meaning of the contract.
See Rane Investment Tourf v Commissioner, South African Revenue Services 2003 (6) SA 332 (SCA) case.
The Appellants concede that they have no direct knowledge of the transactions and relationships between the Respondent and the Fourth Respondent, and accept that an agreement sale exited between the parties.
Cause of action - affidavits.
The only issue to be resolved in this appeal is whether the Court a quo was correct in its finding that delivery of the aircraft subsequent to the contract of sale had been effected by constitum possessorium
The Appellants contend that the Respondent did not allege that he ever took delivery of the aircraft, the submission is therefore that the actual physical delivery as contemplated in Clause 4 of Agreement of Sale, did not eventuate.
The Appellants contention is that the Respondent’s founding affidavit lacked the necessary allegations specifically pertaining to delivery to constitute a cause of action. Failure to make allege that delivery was effected by constitutum possessorium is fatal to, and vitiates Respondents case.
In evaluating whether Appellant grounds of appeal have merit, it is apposite to analyse Respondents impugned founding affidavit to establish whether, all the essential averments appear in the founding affidavit.
The appropriate test to be applied was enunciated by Nesetadt J in Sheparation Tuckers Land and Development Corporation Pty Ltd (1) 1978 (1) SA 173 (W) at 178;
“ It is founded on the trite principle of our law of civil procedure that all the essential averments must appear in the founding affidavits or the courts will not allow an applicant to make or supplement his case in his replying affidavits and will order any matter appearing therein which should have been in the founding affidavits to be struck out .... This is not however an absolute rule. It is not the law of the medes and persians”. The Court has a discretion to allow new matter to remain in a replying affidavit, giving the Respondent the opportunity to deal in a second set of answering affidavits.
The Appellants submission regarding the alleged Respondents lack of particularly of the cause of action is that its objection is similar to an exception in the case of pleadings that the Plaintiff’s case lacked the necessary allegations to constitute a cause of action. In motion proceedings issues in limine are the equivalent of exception in the case of pleadings. An analysis of Respondents affidavit contains the following averments:
Other airplane not attached? Inference similar circumstances also sold to an American.
Offer from Mr Bothma offer accepted, but because of attachment, could not deliver aircraft.
Business terminated aircraft presently standing in hangers at Mmabatho Airport Plane Meyer suffers damages moved.
On release in position to sell to mitigate damages.
Contract signed 13 May 1997. Vendor hereby accepts purchaser’s offer and undertakes to deliver.
4(1) delivery upon delivery all risks of loss or damage shall thereafter be assumed by purchaser. Who in fact did assume such risks says he shall suffer substantial damage, plane is standing at Mmabatho Airport. Seller says plane depreciating.
Letter 19 May 1997 A2 delivery 6 or 13 September 1997.
A3 e-mail after payment your plane is due to leave the United States on the 18 June and etc ordinary intergoration.
E-mail 23 June 1999 sets out history of Respondent dealing with W&P Aviation
Enquiries 1 July 1996 about Sky-Jeep Aircraft.
23 April 1997 requested details about place.
13 May 1997 Contract of Sale signed.
29 June 1998 cancels agreement repudiation not accepted by seller.
Delays in delivery occasioned by various reasons not relevant to this judgment. Putative cancellation caused by Respondent’s intent on evading paying duties.
Seller contemplated buying “John’s Plane” and convert it into a crop sprayer in crop spraying business venture which never eventuated.
The plane is still here in full working order available to be collected at any time should John decide he does want it after all. Disabuses himself of any vestige of ownership.
There is no guaranteed buyer on the horizon because the fact that there is a terrible shoe in the whole light aviation business. John’s interests are protected by the fact that there is an aircraft which he ordered sitting in our hangar and on which the real cost of the wear and tear.
We again reiterate that our chat would like to sell his aircraft and that the prospective buyer is already line up in this regard.
Susan van den Brink a former of W & P Aviation CC para 3.4 property of the client para 17 of Applicants Case Number 16\2002 “There were two airplanes-
The Second airplane the First Respondent alleged did not belong to him, but was being stored there for someone else.
8.3 The letter airplane referred to in the quotation was the aircraft of the Applicant in this application.
As far as 9 am concerned to in this application belongs to the Applicant, and never formed part of the properly or assets of the Fourth Respondent.
Affidavits in motion proceeding serve to define not only issues between the parties but also place the essential evidence before the Court.
See Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (W) at 323 G.
Affidavits in motion proceedings must contain factual averments that are sufficient to support the cause of action on which the relief that is sought is based facts may be primary or secondary primary facts are those capable of being or drawing inferences as to the existence or non-existence of other facts.
See Wilcox and Others v Commissioner for Inland Revenue 1960 (4)SA 599 (A) at 602 A. Reynolds NO v Mockelenberg (Pty) Ltd 1996 (1) SA 75 (W) at 781.
In my view Respondent’s founding affidavit together with the supporting affidavit of Susan van den Brink contain primary and second constituting evidential material capable of supporting a cause of action. See Radebe and Others v Eastern Transvaal Development Board 1988 (2) SA 785 (A) at 793 C - E. The further question to be addressed is whether the delivery of the aircraft was affected?
The Appellants contend that the ownership of the aircraft did not vest on the Applicant either by actual physical delivery brevi mami, or by any form of symbolic of or constructive delivery, as others is no averment by Applicant to the effect. The Appellants counsel submits that nature and status of a contractual relationship existing between parties is determined by the manner in which the parties regarded and interpreted their contractual relationship.
The true nature of the parties contractual relationship is determined by the parties own existential realities and circumstances and manner in which they define the content of the contracts. The nomenclature of the contract is incidental it is the parties agreement and consensus that is decisive in the construction of the contract.
The Respondent’s contention is that it is unnecessary to have made an express averment that delivery of the aeroplane was effected by means of delivery in the form known as constitutum possessorium; such an averment would not have been a statement of fact, but rather a legal conclusion on the facts stated.
The raison..... of the case is not what the Respondent has stated regarding delivery, but rather whether on the conspectus of the facts enunciated, the Court satisfied that the only reasonable inference on the facts stated and on a balance of probabilities the aircraft was indeed delivered to the Respondent in terms of construction delivery in the form of constitutum possessorium.
The Appellants contend that Respondent cannot succeeded in his claim to ownership based on the concept of constitutum possessorium since the delivery has not been averred or pleaded, or proved. It is trite law that affidavit in motion proceedings serve to define not only the issues between the parties, but also to place the essential evidence before the Court for the benefit of not only the Court but also the parties.
See Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 at 323 G.
Affidavits must contain factual averments that are sufficient to support the cause of action on which the relief that is being sought is based facts may be primary or secondary. Primary facts are those capable of being used for drawing inferences as to the existence or non-existence of other facts.
Such further facts, in relation to primary facts are called secondary and constitute evidentiary material capable of supporting a cause of action See Wilcox and Others v Commissioner for Inland Revenue 1960 (4) SA 599 (A) at 602 A, and Reynolds NO v Mocklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 781.
The essential for constructive delivery in the form know as constitutum possessorium were crisply stated by Solomon JA in Goldinger’s Trustee v White Law and Son 1917 AD 66 at 85 as follows:
 That the grantor himself in possession of the thing to be transferred;
 that he ceases to possess in his own name and begin to possess for another;
 the consent of the guarantee;
 some causa or justus fitulus.
Jansen JA in the case of Mankowitz v Loewenthal 1982 (3) SA 758 (A) at 766 B - C describes the requirements of constitutum possessorium as follows;
“ The absence of “physical prehension” by the transferee is, however, no obstacle to a delivery by way of constitutum possessorium. By agreeing to and intending thenceforth to hold the res on behalf of the transferee, the possessor ceases to possess and commences to hold as agent for the transferee, who, by intending to possess through the transferor, now becomes the possessor”.
The existence of a clear cause can be ascertained from an express agreement between the parties or can be inferred from the surrounding circumstances. The existence of a constitutum is not to be presumed, the intention is to be inferred from other circumstances of the case; where there is some other transaction entitling the transferor to remain a holder, that is a cause or justus titulus. It is from the existence of this transaction that the transferor’s intention to hold on behalf of the transferee is inferred.
See Silberberg and Schoeman : The Law of Property 3rd edition para 2324 at page 259.
The courts treat allegations of delivery by means of constitutum possessorium with caution and circumspection. This concept of delivery is fraught with possibilities for fraud, hence the Court seek adequate corroborative mechanisms before effect sanctioning its existence especially where the rights of third parties are affected by the agreement giving rise to such delivery.
In Bank of Windhoek
The onus of proving that the transaction that is the subsequent cause was bona fide and not simulated there was a mental attitudinal change by the transferor with regard to the ownership of the res, is borne by the Respondent.
Evaluation of Issues
In applying the above legal principles to the undisputed. The averments in the founding affidavits emerges;
 The contract sale signed on the 13th May 1997 is genuine.
 The full purchase price was paid on the 19th May 1997.
 Delivery of the aircraft was to be effected on 31st August 1997 at Mmabatho Airport, where the aircraft was “manufactured”.
 Due to various factors delivery was by mutual consent postponed.
 The contract of sale was not cancelled.
 The Respondent instructed the Fourth Respondent to arrange insurance in respect of the aircraft on his behalf.
 The Respondent arranged with the Fourth Respondent to register the aircraft in Fourth Respondent’s name on Respondent’s behalf as such registration was required for compliance with the law for the aircraft to be tested.
 The Respondent realising that it was not economically viable to ship the aircraft to the United States negotiated with the Fourth Respondent to look for a purchaser of the aircraft on Respondent’s behalf.
 Nick Downie intended to purchase the aircraft from Respondent to subject to the setting up of a crop spraying venture in Zambia.
 Nick Downie advised Respondent’s representative Shirley Glyn that he had attempted to sell the aircraft, enquiries, there are a couple of people expressing a serious interest in purchasing the aircraft but there is no guaranteed buyer on the horizon.
 Nick Downie advices Respondent’s representative Shirley Glyn that the plane is available to be collected at anytime should Respondent decides he does want it after all.
 Nick Downie advices Shirley Glyn that the aircraft will not be disposed of without his agreement.
 The Respondent states that he stands to suffer substantial damages should the attachment not be uplifted and the aircraft released to him as it is presently standing in hangers in Mmabatho Airport without any proper supervision to security.
 The Respondent accepted an offer from a certain Mr Bothma a farmer in the Vryburg area to purchase his aircraft. The deal fell through as Respondent could not deliver the aircraft because of the attachment.
 The Fourth Respondent through Nick Downie advised the Appellants that the aircraft does not belong to Fourth Respondent but that the aircraft was being stored for someone else [the Respondent].
 Sue van den Brink a former member and employee of the Fourth Respondent confirms that at all material times after the purchase price was paid in full, she, Nick Downie and the Fourth Respondent. Respondent regarded the aircraft as the property of the Respondent and that the aircraft did not form part of the assets of the Fourth Respondent.
 The Respondent through his attorney Henk Wissing advised the Appellants that the aircraft was his property, and supplied relevant documentation in proof thereof.
 The Appellants submission that communication of Nick Downie to Shirley Glyn of the 23rd June 1979 is ambiguous for the following reasons:
(1) The statement by the Fourth Respondent, that once the purchase price had paid the buyer was considered by it to be the owner of is only true as between purchaser and seller and or does vest a right on the real purchaser. This statement argues the Appellants only confers a personal right on the purchaser enforceable only against the seller in any dispute between the two.
The further submission is that there is no change in the mind set of the parties evidence by the e-mail communication, as the statement contained therein is consistent with the acknowledgement of personal right.
The further submissions is that the statement in the e-mail communication are ambiguous and imbue the Respondent with ownership of the aircraft whether he wants the aircraft or not, this is impermissible and is inconsistent with the law.
This Appellants misconceives the realistic contractual position as conceptualised and interpreted by the Respondent and Fourth Respondent. The Fourth Respondent clearly disabused its mind of ownership, the purchase price was fully paid. This effectively means in essence as from the 31st August 1997, when physical delivery was eventuate in terms of clause 4 (c) of the agreement. The subsequent mutual postponement of delivery the aircraft by both parties further illustrates and adumbrates the fact that the Fourth Respondent was hence forth possessing the aircraft on behalf of the Respondent pending the exigencies the Respondent wanted to exercise and execute in respect of his property (the aircraft).
The Respondent after paying the purchase price in full considers himself the owner of the aircraft in terms of the contract of sale between himself and the Fourth Respondent, correspondingly Respondent was regarded as the owner of the aircraft by the Fourth Respondent irrespective of what the empirical objective dictates of the law enjoin regarding the formal acquisition of ownership emanating from a contract of sale. It is trite law that where a third person questions the meaning of a contract, it is permissible in the interpretation of the contract to have regard to background surrounding circumstances in executing their obligations in seeking to establish the intention of the parties to the contract in such an enquiry the Court will give effect to the true nature and substance of the transaction rather than to form.
See Rane Investments Trust v Commissioner, South African Revenue Service 2003 (6) 332 (SCA).
It is apparent that where parties to a contract are agreed on its meaning irrespective of the construction of the contract, the respective contractual parties mutual interpretation of their contractual obligations prevails even if the provisions of the contract objectively reflects a contrary construction.
See Amssen Kehr Farms Ltd v Trio Transport CC 2002 (4) SA 483 (SCA).
The Court a quo correctly found in our view that the primary averment by the Respondent that he was the owner in his affidavit was sufficient, the failure to describe the method of delivery as constitutum possessorium was not consequential as Respondent has discharged the onus of proving that delivery was effected.
On the proven facts, the Court a quo correctly found that constitutum possessorium was proven, in the premises the appeal is dismissed with costs.
R D MOKGOATLHENG
ACTING JUDGE OF THE HIGH COURT
M T R MOGOENG
B E NKABINDE
JUDGE OF THE HIGH COURT
APPELLANTS’ ATTORNEYS : SMIT STANTON INC
RESPONDENT’S ATTORNEYS : NIENABER & WISSING