DATE DOWNLOADED: Sat Apr 15 13:01:25 2023

SOURCE: Content Downloaded from HeinOnline

Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.

Bluebook 21st ed.

M. D. Blecher, Negligence, Estoppel and the Rei Vindicatio, 94 S. AFRICAN L.J. 1
(1977).

ALWD 7th ed.

M. D. Blecher, Negligence, Estoppel and the Rei Vindicatio, 94 S. African L.J. 1
(1977).

APA 7th ed.

Blecher, M. M. (1977). Negligence, estoppel and the rei vindicatio. South African Law
Journal, 94(1), 1-5.

Chicago 17th ed.

M. D. Blecher, "Negligence, Estoppel and the Rei Vindicatio," South African Law
Journal 94, no. 1 (February 1977): 1-5

McGill Guide 9th ed.

M. D. Blecher, "Negligence, Estoppel and the Rei Vindicatio" (1977) 94:1 S African LJ
1.

AGLC 4th ed.

M. D. Blecher, 'Negligence, Estoppel and the Rei Vindicatio' (1977) 94(1) South
African Law Journal 1

MLA 9th ed.

Blecher, M. D. "Negligence, Estoppel and the Rei Vindicatio." South African Law
Journal, vol. 94, no. 1, February 1977, pp. 1-5. HeinOnline.

OSCOLA 4th ed.

M. D. Blecher, 'Negligence, Estoppel and the Rei Vindicatio' (1977) 94 S African LJ 1
Please note: citations are provided as a general guideline. Users should consult
their preferred citation format's style manual for proper citation formatting.

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 VOL 94
(Part I) THE
February
SOUTH AFRICAN
1977 LAW JOURNAL

RECENT CASES
NEGLIGENCE, ESTOPPEL AND THE REi VINDICATIO
B, who has for some reason been holding A's movable property,
purports to dispose of it to C, contrary to A's wishes or instructions.
A institutes a rei vindicatio to recover his property from C, and C
attempts to defeat A's claim with a plea that A is estopped from
vindicating the res.
'Over the years there have been many decided cases in this country dealing with
estoppel.... I do not consider it necessary to discuss, distinguish or approve of
them one by one. It is sufficient to say that they are useful only if and in so far as
they are consistent with the milestone decisions of this court in the Grosvenor
Motors case, and the Johaadien case.'
So said Holmes JA in Oakland Nominees (Pty) Ltd v Gelria Mining &
Investment Co (Pty) Ltd 1976 (1) SA 441 (AD) at 452, referring to
Grosvenor Motors (Potchefstroom) Ltd v Douglas 1956 (3) SA 420 (AD)
and Johaadien v Stanley Porter (Paarl)(Pty) Ltd 1970 (1) SA 394 (AD).
In the Grosvenor Motors case it was held that the defendant in a
rei vindicatio, in order to establish the defence of estoppel, must prove
that fault (culpa) on the part of the plaintiff caused him to be led into
the erroneous belief that the person from whom he thought he had
acquired the res in issue had the right to dispose of it.
The general principle enunciated in the Grosvenor Motors case was
reaffirmed some fourteen years later, in Johaadien'scase.
More recently HolmesJA, in a unanimous judgment of the Appellate
Division in the Oakland Nominees case (at 452), laid down four require-
ments which have to be proved for an owner's vindication to be
frustrated by a plea of estoppel.
First, there must have been a representation by the owner that the
person who had purported to dispose of his property had the ownership
(dominium) of it or the right to dispose of it (jus disponendi). Here the
court found the decision in Electrolux (Pty) Ltd v Khota 1961 (4) SA
244 (W) helpful. Trollip J held in that case:
'To give rise to the representation of dominium or jus disponendi, the owner's
conduct must be not only the entrusting of possession to the possessor but also the
entrusting of it with the indicia of the dominium orjus disponendi. Such indicia may
2 THE SOUTH AFRICAN LAW JOURNAL

be the documents of title and/or of authority to dispose of the articles, as, for
example, the share certificate with a blank transfer form annexed . . .' (at 247).
Secondly, the representation must have been made negligently in
the circumstances. In this regard a dictum of Steyn JA in the Grosvenor
Motors case (at 428) was quoted with approval in the Oakland Nominees
case (at 457):
'Misplaced confidence in one person is not synonymous with negligence towards
another. The existence of negligence must depend on the facts of each case ....

Thirdly, the representation must have been relied upon by the

person raising the estoppel, and, fourthly, this reliance upon the repre-
sentation must have been the cause of his acting as he did (to his
detriment).
The requirement of culpa on the part of the plaintiff has been criti-
cized. Rumpff JA, in his dissenting judgment in Johaadien, declared
(at 412) that culpa on the part of the owner was not required by the
old authorities, and that such a requirement would hamper commerce.
J E Scholtens, writing in the 1970 Annual Survey of South African Law
(at 210), preferred the approach of RumpffJA to that of the majority
inJohaadien'scase. He described the majority judgment as loading the
scales too heavily against a bona fide purchaser. The judgment of
Holmes JA in the Oakland Nominees case, however, shows no sign of
an easing of the culpa requirement; on the contrary, it entrenches it
more firmly.
Shortly after the decision in the Oakland Nominees case was reported,
the question of estoppel as a defence to a rei vindicatio was considered
in Akojee v Sibanyoni & another 1976 (3) SA 440 (W), an application
for an order authorizing and directing the Deputy-Sheriff to remove a
certain motor vehicle from the possession of the first respondent or
the second respondent and to hand it over to the applicant. It appeared
that the applicant had delivered the vehicle in issue, which he had
owned, to P Co with instructions that the company should sell it for a
certain sum of money on the applicant's behalf. The applicant averred,
however, that he had instructed P Co not to deliver the vehicle to the
purchaser until he (the applicant) had been paid the purchase price.
The applicant further alleged that L, a director of the company, had
subsequently advised him that he had found a purchaser for the vehicle,
and that he had handed the applicant a cheque for the stipulated price.
The cheque had been dishonoured on presentation and, on failing to
get back his vehicle, the applicant had reported the matter to the
police. He had later learned that P Co had been placed in liquidation
and L arrested on charges of fraud.
P Co had apparently exhibited the vehicle for sale along with a
numcer of other second-hand vehicles and had sold it to the second
respondent. The company had delivered it to the second respondent
without first paying the applicant the purchase price stipulated by the
RECENT CASES 3
latter (although P Co had in fact received more than the stipulated
price). When the applicant sought to recover the vehicle he was held
to be estopped. Nicholas J reasoned (at 442) that the applicant had
delivered the vehicle to a firm of motor dealers for the purpose of
selling it, and that he must have contemplated that P Co would exhibit
the vehicle for sale at its business premises with its other stock-in-trade.
P Co, held the learned judge, had therefore dealt with the vehicle, with
the applicant's consent, in such a manner as to proclaim that the
dominium or jus disponendi was vested in it, with the result that the
applicant was estopped from vindicating the res from an innocent
third party. At this point NicholasJ made reference to the judgment in
Electrolux (Pty) Ltd v Khota, from which, as we have seen above, a
dictum received the approval of the Appellate Division in the Oakland
Nominees case. But the dictum relates to the first requirement ofestoppel,
the representation; it does not bear on the second requirement, that the
representation must have been made negligently in the circum-
stances.
In Akojee v Sibanyoni there can be little doubt that the applicant had
made a representation that P Co had the dominium or jus disponendi in
respect of the vehicle. But the question that was not expressly con-
sidered was whether the applicant's conduct was negligent in the
circumstances.
In the judgment, as reported, no mention is made of the Grosvenor
Motors, Johaadien's or the Oakland Nominees case. Reliance is placed
rather on the Electrolux case and on United Cape Fisheries (Pty) Ltd v
Silverman 1951 (2) SA 612 (T), a decision of pre-Grosvenor Motors
vintage. In Silverman's case, which resembles Akojee's to a considerable
extent, S had entrusted his refrigerator to T, a dealer in electrical
equipment, for the purpose of sale. T was, however, not to sell the
refrigerator but was to submit offers to S for the latter's acceptance or
refusal. T had exposed the refrigerator for sale as ordinary stock-in-
trade in the shop, as S had intended, and had sold it outright in the
ordinary course of business to a bona fide purchaser. S was held to be
estopped from vindicating the refrigerator.
'In such circumstances', held Blackwell J (at 616, Dowling J concurring), 'we
think it impossible for the owner to vindicate his property. He had clothed the
shopkeeper with authority to sell that refrigerator as if it were part of his own stock,
and the public was not concerned with any underhand agreement or instructions
passing from the owner to that shopkeeper.'
In Akojee's case Nicholas J (at 442) adopted a similar approach:
'The applicant clothed Power with the apparent authority to sell the vehicle as if
it were part of Power's own stock and he cannot set up his private instructions that
Power was not to deliver the vehicle to a purchaser until the applicant had been
paid the purchase price.'
This approach is correct if Silverman's case is correct. But Silverman
is one of those cases that fall to be reconsidered in the light of Grosvenor
4 THE SOUTH AFRICAN LAW JOURNAL

Motors and Johaadien,and now of Oakland Nominees.

The owner of the refrigerator in Silverman's case had made a repre-
sentation that T had the dominium or jus disponendi of the res. Let us
assume further that this representation had been relied upon by the
innocent third party and had caused him to act as he did. The crucial
question is: was S negligent in the circumstances? Should S have
anticipated and guarded against the possibility that T would dispose
of the refrigerator contrary to his instructions? (Holmes JA in the
Oakland Nominees case (at 458) asked a similar question in considering
whether the plaintiff in that case had been negligent.)
It is submitted that there is no evidence of negligence on the part
of the plaintiff in Silverman's case, which, in the light of the criteria
laid down in Grosvenor Motors,Johaadienand Oakland Nominees, would
seem to have been incorrectly decided.
The judgment in Akojee v Sibanyoni similarly reveals no negligence
on the part of the applicant. It does not appear that any circumstances
existed in which the applicant should have foreseen and guarded
against the possibility that P Co might act contrary to his instructions.
The case seems to be one in which the owner merely misplaced his
confidence in the intermediary. If the situation had been analysed
along the lines set out by Holmes JA in Oakland Nominees, then, it is
submitted, a different result might well have been reached.
One's sympathies may well be with the innocent purchasers in
cases such as United Cape Fisheries (Pty) Ltd v Silverman and Akojee v
Sibanyoni, rather than with owners who have chosen to entrust their
property to dishonest or unreliable intermediaries, but if the law laid
down in the above-mentioned triad of Appellate Division decisions is
the law to be applied with regard to estoppel as a defence to a rei
vindicatio, then it should be applied for better or worse.
The question arises whether the four requirements laid down in the
Oakland Nominees case must always be proved if estoppel is to succeed
as a defence to the rei vindicatio, or whether exceptional circumstances
may exist in which an estoppel can succeed despite non-compliance
with all of them.
In Johaadien's case Steyn CJ svggested (at 409) that the defence of
estoppel in a rei vindicatio might not have always to be based upon fault.
Where an owner, with an innocent but untrue assurance that some
res was not his, in order to further his own interests intentionally and
deliberately persuaded an unwilling person to purchase the res, which
otherwise he would not have purchased, from a third person, then, held
the learned judge, if the owner, despite the aforegoing, were later to
claim the thing from the purchaser, he might conceivably be defeated
by a defence of estoppel based on an extended application of the
exceptio doli. This approach might be justified 'op dwingende billik-
heidsgronde'.
Holmes JA in Oakland Nominees reiterated that an owner might
RECENT CASES

possibly, despite the absence of culpa, be precluded from asserting his

rights by 'compelling considerations of fairness' within the broad
concept of the exceptio do i.
That possibility has not materialized. (Indeed, with the Appellate
Division's decision in Aris Enterprises (Finances) (Pty) Ltd v Waterberg
Koelkamers (Pty) Ltd pending-see 1976 (1) SA 969 (T)-the fate of the
exceptio doli generalis would seem to be in the balance.) In any event,
the special circumstances envisaged by Steyn CJ in Johaadien are not
those of cases such as Silverman's and Akojee's.
According to Holmes JA in the Oakland Nominees case (at 452), an
owner is estopped from asserting his rights to his property 'only' in
the case of a representation negligently made or, possibly, under the
exceptio doli. But, in addition, the Roman-Dutch writers did recognize
other situations in which an owner was precluded-let us not use the
word 'estopped'-from claiming his property. Steyn CJ inJohaadien's
case (at 408) mentioned sales in a free market as one such exception,
and he referred to Appendix E in R W Lee An Introduction to Roman-
Dutch Law 5 ed (1953). In that appendix, entitled 'The Limits of the
Jus Vindicandi', Lee wrote (at 430) that if agents or factors sell or pledge
goods entrusted to them, though contrary to the instructions of their
principals, they give a good title to a purchaser or pledgee to the extent
that the owner cannot vindicate the goods without making good the
price or redeeming the pledge. As authority for the above Lee cites
Voet 6.1.12 and Morum Bros Ltd v Nepgen 1916 CPD 392, in which
Juta JP, after reviewing a number of old authorities, concluded (at
395-6) that 'the great balance of the authority followed in our courts is
in favour of the law that the owner can recover his goods except in
the case of sale or pledge by agents for sale and factors'.
It is not proposed in this note to enter the teeming world of the old
authorities. But it is suggested that an investigation of the Roman-
Dutch writings and some of the earlier South African decisions could
conceivably reveal that the decisions in cases such as Silverman's and
Akojee's are justified, not on the basis of estoppel as discussed in the
Grosvenor Motors, Johaadien and Oakland Nominees cases, but on the
basis of one of the Roman-Dutch exceptions to the principle ubi rem
meam invenio ibi vindico.
M D BLECHFR

DIGNITAS: SUBJECTIVE OR OBJECTIVE?

Mere wrongful or unlawful dismissal of a person from his occupation

or profession by his employer does not necessarily ground an action
for injuria. On the other hand, there is authority for the view that a
plaintiff who is dismissed may recover damages for wrongful dismissal