Remhoogte CC and Others v The Jacob Durr Trust and Others (A23/2020) [2021] ZAMPMHC 14 (8 April 2021)

IN THE HIGH COURT

OF SOUTH AFRICA

MPUMALANGA DIVISION (LOCAL SEAT)

CASE NUMBER A23/2020

REPORTABLE: YES

OF INTEREST TO OTHER JUDGES: YES

REMHOOGTE CC 1ST

APPELLANT

LEON RENIER VAN

TONDER

2ND APPELLANT

LEON RENIER VAN TONDER N.O

3RD APPELLANT

CORNe VAN TONDER N.O

4TH APPELLANT

WOUTER VAN DER MERWE N.O

5TH APPELLANT

And

THE JACOB DURR TRUST (IT 5808/1997) 1ST RESPONDENT

JACOB DURR 2ND

RESPONDENT

CALICOM TRADING 38 CC

3RD RESPONDENT

JUDGMENT

LEGODI JP

[1] A sale agreement of immovable property described as De Roodepoort 435 Registration Division 1.5 Mpumalanga Province (the farm) which did not comply with the requirements of the Alienation of Land Act, 68 of 1951 in that it was not reduced into writing and signed by the parties and in terms of which several cattle delivered as a deposit for the purchase of the farm aforesaid and the offspring born thereafter, became the subject of a fierce dispute in the court a quo and on the appeal herein.

[2] At the heart of the dispute the question is whether the purchaser of the farm, namely Reemhoogte CC (hereinafter referred to as Remhoogte) was entitled to every offspring born of such cattle after their mothers were so delivered to the seller of the farm and upon cancellation of the sale agreement in question or only entitled to such offspring or calves to a limited extent as so ordered by the court a quo.

[3] Paragraph 1 of the order of the court a quo as per Brauckmann AJ read as follows:

“That the Respondents are ordered to forthwith return all of the First Applicant’s cattle, bearing the brand marks “Y X λ” and/or a ® symbol on the rump and/or the brand mark “♦” symbol in their ears, as well as any offspring (“the Cattle and Offspring”) born of these animals, after 05 May 2020 to the First Applicant”

[4] Remhoogte was the first applicant in the court a quo. Aggrieved by the order quoted in paragraph (3) above, it asked for leave to appeal against the order which leave was duly granted to the full court of this division. Remhoogte is now asking for the setting aside of the order to be substituted as follows:

“The respondents are ordered to forthwith return all of the first applicant’s cattle, bearing brand “Y X λ” and/or a ® symbol on the rump and/or the brand mark “♦” symbol in their ears as well as any offspring (“the cattle and offspring”) born of these animals to the first applicant”.

[5] Some background is necessary: On 15 June 2019 Mr Leon Renier Van Tonder (Van Tonder) on behalf of Remhoogte entered into an oral agreement with Jacob Durr Trust (hereinafter referred to as Durr Trust) represented Mr Jacobs Durr (Durr) in terms of which Remhoogte was to buy from Durr Trust the farm for a total amount of R8 560 000.00 consisting of about 428 hectors at R20 000.00 per hectare.

[6] It was agreed that a “deposit” or part thereof would be made by way of the delivery of 250 pregnant cows certified by a qualified vet to be pregnant at an agreed cash value of R14 000.00 per head, 150 weaners at an agreed value of R 6600.00 calculated according to weight upon market price for beef per head and the balance of the purchase price to be payable over a period of 7 years subject to interest at the rate of 10% per year paid-off by way of annual instalments on the balance of the purchase price.

[7] According to Remhoogte, the farm in question was to be registered into the name of Louisfontein Trust of which Van Tonder was a trustee once payment of the purchase price was effected. Durr Trust was to give Louisfontein Trust a first bond over the farm. Furthermore, once the purchase agreement was finalised, Durr Trust would use the deposit to pay off the existing bonds over the farm to ensure that the only bond holder was to be Louisfontein Trust.

[8] Subsequent to the oral agreement the following cattle were delivered to Durr Trust as a deposit towards the purchase price:116 head of cows was either pregnant or already with its calve delivered on 27 June 2019,106 weaners delivered on 3 July 2019, 42 head cows which were either pregnant or already with their calves delivered on 19 July 2019, 70 head of cows which were pregnant or already with their calves 6 weaners delivered on 28 August 2019 and 22 head of cows which were pregnant or already with their calves delivered on 18 September 2019 and one bull and the bull was not part of the agreement and it was later returned.

[9] No written agreement was ever concluded as the proposed draft agreement handed over to Van Tonder did not accord with what was agreed upon. When the terms and conditions of the agreement could not be concluded, accordingly Van Tonder, ‘Durr was constantly seeking to quibble about the terms of the anticipated agreement and was apparently playing for time’.

[10] In the email of 20 February 2020 it was confirmed to Durr that as the parties could not agree on the terms of the agreement, the cattle which were delivered as a deposit ought to be immediately returned. On 5 May 2020 Remhoogte and other four appellants in their representative capacities instituted urgent proceedings in the court a quo. Same was struck off the roll due lack of urgency. On 22 July 2020 the matter was laid before Brauckmann AJ on the opposed motion roll and on 24 July 2020 he granted an order inter alia, as quoted in paragraph [3] of this judgment.

[11] The essence of the order is that as the proceedings were instituted on 5 May 2020, Remhoogte will only be entitled to the calves or offspring after 5 May 2020 and in all probabilities after Remhoogte would have retrieved the cattle delivered to Durr trust between 27 June 2019 to 18 September 2019, being delivery period of the cattle Durr Trust as indicated in paragraph [8] above.

[12] In other words, any offspring born after delivery as specified in paragraph [8] of this judgment, Durr Trust will be entitled to retain the offspring born between 27 June 2019 when the first cattle were delivered to 5 May 2020 when the application for the return thereof were instituted. In granting the order quoted paragraph [3] above, the court a quo seems to have relied on the principle articulated in paragraph [37] of its judgment as follows: ‘…However, the majority of Roman-Dutch writers are of the opinion that bona fide possessors need not account for fruits which, although separated by before litis contestatio, have not been consumed at that stage. This view has been accepted in several South Africa’.

[13] The court a quo then in paragraph [38] of its judgment proceeded inter alia as follows:

“A bona fide possessor is entitled to retain the fruits which he or she has collected and consumed up to the time of litis contestation, usually the time when issue is joined on institution of a rei vindication by the owner to reclaim his or her thing. The bona fide

possessor is liable to restore all fruits gathered during the pendency of the action. He or she can also be held liable for all

fruits which he or she could have collected by exercising reasonable care in delict (fructus neglicti). A mala fide possessor (like respondents after the application for delivery was issued) has no claim to the fruits, and is bound to account to the owner of the principal thing for all the fruits he or she gathered, or could have gathered, if he or she had exercised due care and skill. However, the majority of Roman-Dutch writers are of the opinion that the bona fide possessor need not account for fruits which, although separated before litis contestation, have not been consumed at that stage. This view has been accepted in several South African decisions.” (My emphasis).

[14] Then in paragraph [39] of its judgment, the court a quo concluded that Remhoogte insofar as its interest in the cattle is concerned, is entitled to be placed in possession of all the cattle delivered – as well as all the calves that were delivered with the cows and that the offspring born before 5 May 2020 may not be removed by Remhoogte.

[15] In arrival at the conclusion as it did, the court a quo moved from the premises that the calves born upon delivery of their mothers to Durr Trust are the property of Durr Trust or Calicom CC (Calicom) to whom they were moved, and cannot be claimed with the rei vindication as it was argued by Durr Trust. I explain later in this judgment the involvement of Calicom and its relationship with Durr.

[16]

We are living in a constitutional modern times governed by the written laws and rules of the current times. The unwritten laws and

rules like Roman Dutch laws if still applies, common law and customary laws must all conform to the constitutional norms in accordance with the Constitution being the supreme law of the land. For this purpose, the Constitutional Court, Supreme Court of Appeal and the High Court of South Africa each has inherent power to protect and regulate their own process, and to develop the common law taking into account the interests of justice[1]1. Any conduct that is inconsistent with the Constitution will be struck down as the Constitution is the supreme law of the Republic and any law or conduct which is inconsistent with it is invalid, and the obligation imposed by it must be fulfilled[2]. (My emphasis).

[17] The court a quo in paragraph [33] of its judgment referred to the work of (Grotius 2.10.1, Institutes 2.1.19 and Voet 41.1.15) in which it was described that ‘the general principle is that by accessing the dominium of the progeny of an animal vest in the owner of an animal by and immediately on birth.

[18] The application of this principle in my view, would always be dictated by what is in the interests of justice taking into account various factors including undue enrichment that can result from rigid application of the principle despite the facts at play in a particular case. If that was to happen the principle may find itself being at odds with the interests of justice espoused in section 173 of the Constitution and thus resulting in the conduct that finds itself at odds with section 3 of the Constitution.

[19] The court a quo also made reference to (Voet 6.1.30. (vol. II Gane’s translation p.242) wherein it was stated:

“What falls to be restored in this action is the thing along with its fruits (of which we shall have expressly to treat in our title on Acquisition of Ownership, and furthermore along with the whole cause, that is to say everything which the claimant would have been likely to have, had the thing been restored at the time when the judicial proceeding was accepted.”

[20] In other words, and that is my understanding, if as at the time the judicial proceedings were accepted or served in the present case for the return of the cattle delivered to Durr Trust, Remhoogte would have been entitled to the fruits, that is, the offspring born after their mothers were so delivered to Durr Trust.

[21] Such entitlement should not apply only from the date on which the proceedings were instituted and or served, in this case being on 5 May 2020. The entitlement should be until the cattle are returned together with their offspring born after their mothers were so delivered to Durr or Calicom taking into account the fact that ‘what falls to be restored is the thing along with its fruits’, and also the principle that ‘by accession, the dominium of the progeny of an animal vests in the owner of the latter and immediately on birth’. Anything short of this by restoring only the offspring born after the institution of the application on 5 May 2020, would be in conflict with the principle that by accession, the dominium of the progeny of an animal vests in the owner of the animal immediately on birth of the offspring.

[22] Although first possession is generally assumed to be dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource Accession applies across a wide variety of area, from determining rights to baby animals and growing crops, to determine ownership for derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information costs burdens on society. But accession differs from first possession in that it does not presuppose that rights are established in an open access and does not require the performance of an act to establish ownership. These features of accession make it, as a rule, more efficient than first possession at least whose property rights are thick and securely enforced.[3]

[23] TW Merrit under “A Traditional Examples” puts it further this way:

“The operation of accession is easiest to grasp in relatively elemental contexts. After we see the principle of accession at work in these simple settings, we will be in a better position to perceive that it also operates in other contexts involving intangible rights and often operatively in competition with the principle of first possession.

1. New-born animals. Let us begin with some following examples that govern agrarian of an agreement to the contrary, is that the offspring or increase of tame or domestic animals belongs to the owner of the mother (Carruth and Easterling, 150 So.2d 852 (Miss.1963). Here we have a striking example of a new resource the new-born animal that enters the world.

Conceivably, ownership of this new resource could be assigned to its first possessor. Instead, ownership of new-born animals is uniformly assigned to the person who owns another resource that has a prominent connection to the new resource; the new-born’s mother. Notice that prominent connection in this instance is biological rather than physical, although presumably in most cases maternal biological connection will translate into physical proximity. Felix Cohen once reported that all known legal systems follow the rule of inherence (Cohen J 366)[4]”.

[24] The rule was subject to an exception in Euslist common law for baby swans and cygnets, which were divided equally between the owner of the cock and the owner of the hen. In this regard see the case of Swans [1592] 72 Eng. Rep.435). The court opined that this was because of the strict monogamy of swan cocks in marked contrast to “Kine or other brute beasts” (at 437), which presumably eliminated any dispute about paternal[5].

[25] In paragraph [37] of its judgment the court a quo inter alia, held as follows:

“A bona fide possessor is entitled to retain the fruits which he or she has collected and consumed up to the time of litis contestatio, usually the time when issue is joined on institution of a rei vindication by the owner to reclaim his or her thing. The bona fide possessor is liable to restore all fruits gathered during the pendency of the action. He or she can also be held liable for all fruits which he or she could have collected by exercising reasonable care in delict (fructus neglicti). A mala fide possessor (like respondents after the application for delivery was issued) has no claim to the fruits, and is bound to account to the owner of the principal thing for all the fruits he or she gathered, or could have gathered, if he or she had exercised due care and skill. However, the majority of Roman-Dutch writers are of the opinion that the bona fide possessor need not account for fruits which, although separated before litis contestatio, have not been consumed at that stage. This view has been accepted in several South African decisions”

[26] For this, the court a quo referred to LAWSA at para 190 and Groenewald v Mathias 1925 SWA 117, Baliol Investment Co (Pty) Ltd v Jacobs 1946 TPD 269 275, Rademeyer v Rademeyer [1967] 3 ALL SA 85 (C); 1967 2 SA 702 (C) pages 706 to 707. Then in paragraph [38] of its judgment the court a quo proceeded as follows:

“In motion proceedings and in this matter litis contestatio is usually the time when issue is joined on the institution of a rei vindication by the owner to reclaim his or her thing. In this case, that will be on 5 May 2020. Put differently, all the calves born before 5 May 2020 will have become the property of the Trust (referring to Durr Trust), and Remhoogte will have no claim for its delivery or value thereof. In this way lies a difficulty in that it seems as if the respondents, taking into account the state of their counter-claim and claim supporting the lien relied upon by them, are not keeping exact or any record of their farming activities. Fortunately, the applicants had access to the cattle since 09 May 2020, and were in a position to record the amount of calves that were born since delivery”.

[27] For the statement, the court a quo made reference to Erasmus Superior Court Practice, RS 9, 2019, 2015, D1-347. It is this finding as quoted above and the ultimate order made by the court a quo as quoted in paragraph [3] above which is at the heart of the dispute in this appeal.

[28] Look at it this way: Many cows when delivered to Durr Trust in 2019 were already pregnant. It is reasonably expected that some of the cows would have become pregnant upon delivery until 5 May 2020. The effect of the order is that any calves born from 27 June 2019 when the first 116 head of cows were delivered, Remhoogte would only be entitled to the return of calves born after the application was instituted on 5 May 2020.

[29] Inasmuch as the order so made by the court is premised from either the Roman- Dutch law or common law, the immediate question to ask is: Is this not the kind of the law which finds itself in conflict with the Constitution? Put differently, is it in the interests of justice to apply this law, almost like self-help law that amounts to undue enrichment and unduly prejudicial to Remhoogte?

[30] The order so made by the court a quo entitled Remhoogte only to those calves born between 5 May 2020 to 24 July 2020 or immediately thereafter is of no significant help to Remhoogte who by the same unwritten law, is entitled to not only the cows so delivered but also to their offspring born but only those born after the proceedings were instituted on 5 May 2020. It makes no logical sense to rigidly apply litis contestatio principle in the present case.

[31] To allow Durr Trust or Calicom to retain the offspring born between 27June 2019 to 5 May 2020 after their mothers to Durr Trust or Calicom were delivered, will unduly impoverish Remhoogte. On the other hand, it will unduly enrich Durr Trust, or Calicom. That would not be in the interests of justice as contemplated in section 173 of the Constitution. Even if I was to be wrong in this regard there is another aspect which weighs heavily against Durr Trust and Calicom. As it would appear hereunder, neither Durr and Calicom could be bona fide possessors or purchasers in the true sense of the word.

[32] This brings me to the core of the defence raised in the court a quo and persisted in these proceedings. In their written heads Durr Trust and other respondents moved from the premise that subsequent to the delivery of the cattle, the sixth respondent, that is, Calicom Trading 38 CC (Calicom) became the possessor in good faith of the cattle and that therefore, the respondents as bona fide possessors of the cattle, ‘need not return the property of livestock in a vindicatory application to the owner of the mother’.

[33] Then in paragraph 3.3 of the written heads Durr Trust contends that ‘the appellants were not successful in convincing the court a quo that the respondents or Calicom were not bona fide possessors. For this reason, the court a quo held that ‘the offspring did not follow the mother in the vindicatory application’. There is context why this contention cannot stand.

[34] The contention is founded on the court a quo’s findings that a bona fide possessor is entitled to retain the fruits of which he or she has collected and consumed up to the time of litis contestatio, usually the time when an issue is joined on the institution of a rei vindication by the owner to reclaim his or her thing. A bona fide possession according to Trans Legal Dictionary means “physical control over property by a person who honestly does not know that the ownership of the property is dispensed”. On the other hand, legal definition of “bona fide” according to the Legal Dictionary means “good faith”, it signifies honesty and in the case of a party claiming title as “bona fide” purchaser or holder, it indicates innocent or lack of knowledge of any fact that would cast doubt on the right to hold title.

[35] That being the legal definition, look at the conduct of Durr this way: He was or is still a 50% interest holding member in the close-corporation (Calicom). During August 2019 he indicated his intention to sell the weaners to pay for a number of his debts. These were weaners which were just delivered to Durr or Durr Trust on 3 July 2019. He confirmed that he would refrain from selling the adult cattle. According to van Tonder who deposed to affidavits on behalf of Remhoogte, it became apparent that Durr or his Trust was having financial problems. He did not ask for the permission; neither was he given an impression to sell. However, on 1 October 2019 “a contract” was concluded between Durr in his personal capacity and Calicom for the sale of some of the cattle. I revert later in this judgment to this alleged agreement.

[36] On 2 December 2019 Durr provided a hard copy of a draft sale alienation agreement in respect of the farm. The agreement did not accord with the initial oral agreement, so Remhoogte contended. For example, the purchase price was changed. The agreement made no reference to the cattle already delivered to Durr Trust between 27June 2019 and 18 September 2019 as a deposit towards the purchase price of the farm. In addition, the hard copy of the proposed written agreement made a provision for Durr’s life-long habitatio on the farm which was never an agreed term between the parties.

[37] When the issue of the difference in the purchase price was raised, Durr is said to have indicated that if the agreed purchase price was to be used, it would have a significant negative capital gains tax implication for him. Durr then proposed that parties should simply subtract the value of the cattle already delivered and only retain the balance of the purchase price in the agreement. This was categorically declined by Van Tonder. In the draft written agreement so provided on 2 December 2019, there was no provision whatsoever or no reference was made to Durr Trust’s right to sell or being entitled to sell any of Remhoogte’s cattle. According to Remhoogte, this could not have been indicated in the draft because the alleged sale of the weaners to Calicom by Durr or his Trust was never a term of the agreement when Remhoogte so delivered the weaners or any of the cattle to Durr or his Trust.

[38] To this, Durr responded by indicating that it was in actual fact the suggestion by Van Tonder that the cattle already delivered must not be mentioned in the written agreement. Then he concluded on the issue by stating that the original amount could not be included without recording the payment of the cattle. First, I find it improbable that Van Tonder could have wanted not mention the cattle in the agreement when they were so delivered as a deposit towards the purchase price of the farm. Second, why if that was the case, same was not included in the draft written sale agreement of the farm prepared by Durr or his Trust’s attorney.

[39] On 28 January 2020 Remhoogte’s attorney wrote a letter to Durr Trust’s lawyer. In the letter, it was recorded that the value of the cattle delivered was R4 490 000.00. It was also recorded that the correct purchase price be specifically recorded on the draft written agreement to ensure that Van Tonder and other appellants would not be penalised with capital gains at a later stage.

[40] On 20 February 2020 Durr was informed that no agreement existed and that the cattle which were delivered as a deposit and in anticipation of a properly concluded written agreement for the sale of the farm, must immediately be recorded. In response thereto, and for the first time, Durr indicated that few of the initial head of cattle were

still in the possession of Durr Trust and that 200 of the cattle had been sold to Calicom. The alleged signed agreement between Durr and Calicom was not provided immediately.

[41] Look at the whole story this way: The last cattle delivered to Durr Trust was on 18 September 2019. Then on 1 October 2019 Durr and not his Trust concluded a sale agreement with Calicom of which Durr was a 50% interest holding member. There is nothing in the agreement to suggest that Durr concluded the agreement with Calicom in any representative capacity. For anyone to come to the conclusion that Calicom, driven by Durr, acted in good faith, honesty, innocently and with lack of knowledge of any fact that could cast doubt on the right to hold title, they will first have to ignore the background alluded

to in the preceding paragraphs.

[42] Of most importance however, is that neither the Durr Trust nor Durr himself denied that the latter was a 50% interest holding member in Calicom. Therefore, the contention that 200 of the cattle were already in the possession of Calicom on 20 February 2020 and that Calicom was not a party to the alleged sale agreement between Durr Trust and Remhoogte has a context to consider. Relying on the finding of the court a quo that the respondents or Calicom were bona fide possessors and that therefore the court a quo held that the offspring did not have to follow their mothers in the vindicatory application also has a context. The finding by the court a quo in this respect cannot stand.

[43] The last delivery of the cattle to Durr Trust was on 18 September 2019. Hardly two weeks thereafter, that is, on 1 October 2019 the alleged sale of the cattle to Calicom took place without the consent of Remhoogte or without the latter’s knowledge. It was only after sometime that Remhoogte was notified of the sale. It was almost like Durr selling the 200 cattle to himself by virtue of his 50% interest holding in Caliccom. Look at how the alleged purchase price

of R2 800 000.00 was recorded:

“Die koopprys is betaalbaar deudat die koopprys gekrediteersal word teen die verkooper se leningsrekening in die boeke van die koper op die datum van ondertekening hiervan (die effektiewe Datum).”

In short, meaning Calicom in which Durr is a 50% interest holding member, was to pay nothing for the cattle valued by him in the amount of R2 800 000. One can refer to the agreement in the circumstances as a scam.

[44] The notion of the scam agreement must also be seen in this context: The oral agreement that led to the cattle been delivered as a deposit for the purchase of the farm was not between Durr and Remhoogte but rather between Durr Trust and Remhoogte. In draft written agreement for the sale of the farm prepared by Durr Trust’s attorney presumably instructed by Durr on behalf of the Trust, the seller is indicated as “Jacob Durr Trust” and not “Durr”. Therefore, accepting that the cattle were delivered by Remhoogte as a deposit for the purchase of the farm, Durr had no standing to appropriate the cattle to himself and then sell them to Calicom as if he was the owner of the cattle. Calicom, being driven by Durr by virtue of its connection with Durr, cannot plead lack of knowledge casting doubt on Durr’s title to the cattle. In other words, Calicom cannot plead that it is a bona fide possessor of the calves born between 27 June 2019 to 5 May 2020 when, on the latter date, the vindicatory proceedings in the court a quo were instituted after their mothers having been delivered between 27 June 2019 and 18 September 2019.

[45] Remhoogte did not have to appeal the finding of the court a quo wherein Durr Trust and other respondents were found to have been bona fide possessors. Remhoogte in its founding affidavit extensively dealt with the facts preceding their knowledge that 200 cattle were sold to Calicom. Most of such preceding facts insofar as they are relevant, were not disputed. Neither were they disputed in such a manner that the court a quo did not have to have regard thereto. The facts so set out in the founding affidavit are so material and relevant in deciding whether Calicom and Durr in his personal capacity to sell the cattle were bona fide possessors. Therefore, the question whether Calicom or Durr as the seller of the cattle to Calicom is a bona fide possessor or not remains to be alive in this appeal.

[46] The fact that the delivery of the cattle and their subsequent offspring were part of a land sale agreement which was null and void ab initio is not an aspect that could have been ignored. The anticipation that such agreement will eventually come to fruition but not realised, is material and relevant particularly regard being had to what made such agreement not to come to its conclusion. Shifting the poles of the initial agreement which was supposed to be reduced to writing is not something to ignore. In my view, it was driven by the effort to impoverish Remhoogte once the mothers of the offspring were delivered to Durr Trust or Calicom.

[47] So, the statement by Remhoogte that ‘when entering the agreement, the cattle were delivered to the first to fifth respondents, in a bona fide expectation of the sale agreement to be concluded and that after a long period of time, it became evident that the parties would not be capable of finalising the agreement, and it was cancelled’, has to be seen in the light of the background sketched out in the preceding paragraphs.

[48] Calicom, in my view, is not a third party and bona fide possessor in the true since of the word by virtue of the close relationship between the Durr, Durr Trust and Calicom. So, the facts in Carlis v McCusker[6] if it is intended to be relied upon, are not of any assistance. Carlis case as I see it, was mentioned by Remhoogte to state the principle that no man should be allowed to enrich himself at the expense of another and that, courts would not permit a man who had verbally agreed to sell land and property and had, on the faith of that agreement, received the whole or portion of the purchase price, to retain both the money and land. It will under those circumstances come to the relief of the purchaser. That was the essence in Carlis case.

[49] Before I conclude and at the risk of repetition, I need to emphasise the following: When accession takes place, the former owner of the accessory acquires an enrichment claim against the owner of the entity. (See the Law of Property 6th edition by Silberberg and Schoeman page 298). In the present case, the calves so born after the delivery of their mothers to Durr Trust became accessories in respect of which

Remhoogte had acquired a claim for enrichment against whoever the new owner might be

[50] Eiselen and Pienaar – Unjustified Enrichment 3rd edition at 211 move from the premise that in the case of accession of movable to an immovable thing, it was a principle in Roman Law that ownership of the movable accessory did not pass to the owner of the immovable, but that the owner obtained ownership if? the accessory remained ‘scumbering‘ until the principal and the accessory were separated, which caused owner of the composite thing to be enriched at the cost of a possessor who had attached the movable.

[51] This principle as espoused in paragraph [50] even if it was to be part of the common law or Roman Law applicable in a South African context, in my view, it would not apply in the present case because the calves although are movable things, they are not attached to the immovable property of either Durr Trust or Calicom. The calves so born are detachable from the land of Calicom or Durr Trust. The owner of the calves (accessions) remains entitled to claim them from whoever is in possession thereof unless the possessor is bona fide.

[52] By operational of the law, the owner of the principal thing becomes the owner of the accessory things. (See Sieberberg and Schoeman supra at page 299). A remedy based on unjustified enrichment will in most instances be available to the owner of the movable thing against

the enriched owner of the (composite thing- the land). (See Van der Merwe- Sakereg at 231 - relying on MacDonald Ltd v Radim No & Another 1915 AD 454 at 468).

[53] Eiselen and Pienaar on page 211 of their work are however of the view that the correct position is that these principles are no longer applicable in South African law and the owner of the accessory completely loses her ownership if the attachment is permanently affixed and can only rely on an enrichment action against the owner of principal thing if such owner has been enriched. I have no problem with this articulation.

[54] Assuming that Eiselen and Pienaar are correct in their articulation, the calves so born from the cows delivered to the Durr Trust during June-September 2019 and later delivered to Calicom were found by the court a quo reinable by Durr Trust except for the calves born after the institution on 5 May 2020 of the main application in the court a quo. I have already expressed myself in this regard and at the risk of repetition, I deal with the issue in some more detail again hereunder.

[55] The principle based on the time during which the court proceedings were instituted in the court a quo and then found that the Remhoogte was not entitled to the calves born between June-September 2019, that is after the delivery of their mothers and before the institution on 5 May 2020, is problematic and in my view at odds with the constitution for its rigid application. Look at it this way: Subsection (1) of section 25 of the Constitution inter alia, provides that no one may be deprived of property except in terms of law of general application and no law may permit arbitrary deprivation of property.

[55] In the other hand, section 173 gives superior courts inherent powers

to develop the common law, taking into account the interests of justice. Now, a question arises: Is it in the interests of justice to allow either Durr Trust or Calicom to retain the calves born between 15 June 2019 to 5 May 2020 simply on the principle that the Remhoogte issued the application for recovery thereof on the latter date?

[56] If the system or principle was to be so rigidly applied as a right of retention or lien, it cannot be in the interests of justice. It will be a principle. For example, by 18 September 2019, Durr Trust having taken possession of many cattle from Remhoogte, Durr as a steering figure in the operation of Durr Trust and Calicom with Durr 50% interest in Calicom, on 1 October 2019 about 200 of the cattle were disposed of to Calicom by way of a questionable sale agreement. This was done before any written agreement in respect of the sale of the land or farm was finalised and signed. The dispute regarding actual terms and condition of the main agreement for the sale of the land in respect of which the cattle were to be used as a deposit, continued since 2019 until when the main application for the return of the cattle and their calves was instituted on 5 May 2020.

[57] Many calves must have been born between 27 June 2019 to 5 May 2020 (in eleven months). That is incomparable with the number of calves that could have been born between 5 May 2020 to 24 July 2020 when the court a quo granted the order as it did. One should bear in mind that some of the cows so delivered were in terms of the oral agreement supposed to have been pregnant. To allow Durr Trust and or Calicom to retain the calves born between 27 June 2019 to 5 May 2020 would amount to arbitrary deprivation of property and by so doing offends against Remhoogte’s right to property as contemplated in section 25 of the Constitution.

[58] In my view, if Durr Trust feels aggrieved by the return of such calves together with their mothers to Remhoogte, it can follow due process of the law based on having been impoverished thereby. That will be in the interests of justice and will curb self- help resort and rigid application of the retention or lien principle.

[59] The retention in the circumstances of the case, would amount to

self-help particularly taking into account the fact that neither Durr Trust nor Calicom, for reasons already articulated and repeated in the preceding paragraphs, cannot be said to be possessors and or purchasers in good faith. The principle applicable to bona fide possessor and or purchasers is meant to protect innocent possessors and or purchasers.

[60] According to Sieberberg and Schoeman on page 360 at para 13.2.6 and with regard to a possessor’s right to compensation for improvements to the property of another, and his or her right to

damages on the ground of delict, a distinction is made between possessor in good faith and possessor in bad faith. A possessor in good faith, that is a person who bona fide, but mistakenly believes that he or she is the owner of a thing in his or control. On the other hand, a possessor in bad faith, that is a person who holds a thing with the intention of being owner, but who is fully aware of the fact that he or she is not the owner thereof.

[61] Durr Trust and Calicom in my view, were possessors fully aware that

they were not the owners. First, Durr Trust through Durr was fully aware that no registration has taken place and the parties were still to prepare and sign a written agreement with clear set out terms and conditions still to be agreed. Second, Calicom cannot claim to have known nothing about these outstanding issues. The alleged 1 October 2019 written agreement was between Jacob Durr in his personal capacity and Calicom Trading 38 CC whilst the proposed draft sale agreement sent to Remhoogte was meant to be with Jacob Durr Trust under registration number IT5808/1997 “represented by duly authorised person by virtue of resolution of trustees as sellers and with “the purchaser” not specified in the draft sale agreement of the land. That in my view is a clear indication that as at the time the cattle were delivered between June to September 2019, it was not even clear to Durr or his Trust as to who the purchaser of the farm in respect of which the cattle so delivered as a deposit would be.

[62] The next question is. On what basis did or Jacob Durr enter into a sale agreement of 200 cattle with his CC, (Calicom) when in terms of the intended sale agreement wherein the cattle were to be used as a deposit, Durr Trust and not Mr Jacob Durr was to be the seller?

[63] Sieberberg and Schoeman are of the view that ‘a possessor may in an appropriate case institute a delictual claim for damages under the actio legis aquiliae provided that the usual requirements, for example, wrongfulness and fault are present. There is a clear authority to the effect that a claim under the Aquilian action can be maintained by a bona fide possessor, and in calculating the quantum of damages, he or she is treated in exactly the same way as the owner. This remedy is however, denied to a mala fide possessor…’ (see page 360, para 13.2.6 of Sieberberg & Schoeman work).

[64] It is not clear whether the mala fide possessor has a right to retention in our law to secure his or her claim in respect of either necessary or useful expenses; though several of our common-law writers are said to contend that such a right does exist for a mala fide possessor; subject inter alia to the qualification that a deduction may be made from his or her claim in respect of use and occupation of the property and in respect of the value of fruits which he or she could have gathered and not only in respect of those gathered prior to litis contestatio. (see Sieberberg & Schoeman page 364 para 13.2.7.2).

[65] I cannot agree with the postulation above. To allow a mala fide possessor the right of retention, would in my view encourage abuse and self-help as it has happened in the present case. Reliance

on the work of Voet in this regard, is not only dangerous, but is also outdated. The court a quo found that Remhoogte was entitled to the return of all the cattle delivered to Durr Trust. But having made this finding the court a quo found that Remhoogte was entitled only to the return of the calves born after the litis contestatio on 5 May 2020. It would not serve to enhance the interests of justice as espoused in section 173 of the Constitution to limit the return of the calves in the circumstances of the case. Development of the common or Roman-Dutch law if it was to be followed, should be accompanied by what is in the interests of justice. Therefore, Remhoogte should be entitled to the return of all the calves born after their mothers were delivered to Durr Trust or to Calicom.

[66] Consequently an order is hereby made as follows:

66.1 The appeal is hereby upheld with costs.

66.2 Paragraph 1 of the order of the court a quo, quoted in paragraph [3] of this judgment, is hereby set aside and substituted as follows:

“1. The respondents are hereby ordered to forthwith return all of the first respondent’s (Remhoogte) cattle delivered on 27 June 2019, 3 July 2019, 19 July 2019, 28 August 2019 and 16 September 2019 identifiable by the markings given by Remhoogte before delivery and all the offspring born out of these cattle upon delivery to Durr Trust, Jacob Trust and or Calicom.

2. The respondents to pay the costs of the application”.

________

LEGODI JP\

I agree

BARNARDT AJ

BAM AJ

DATE OF HEARING:

: 26 MARCH 2021

DATE OF

JUDGMENT

: 08 April 2021

FOR THE

APPELLANT

: ADV PG CILLIERS SC with ADV RJ GROENEWALD

INSTRUCTED BY

: G.F.T PISTORIUS INCORPORATED

9 JOUBERT STREET

MIDDELBURG

TEL: 013 282 7304

REF: Mr T Pistorious / VP618

Email: collections@tplaw.co.za

FOR THE

RESPONDENTS

: ADV C RICHARD

INSTRUCTED BY

: DR T C BOTH ATTORNEYS

C/O VICKY JANSE VAN

NOORDWYK ATT

SUITE 4, 2ND FLOOR

WONDERPARK CENTRE

TEL: 013 001 3002

REF: Mrs V Janse van Noordwyk/KTV054

Email. vicky@vgnattorneys.co.za

[1] Section 173 of the Constitution

[2] Section 3 of the Constitution

[3] Accession and Original Ownership – Oxford Academics Journals – Oxford University Press by TW Merrit – 2009

[4] See Merrit’s Article supra at pages 464 – 465 para 16

[5] See also Meerit: Accession and Original Ownership at page 465

[6] 1904 TS 917