FIRST NATIONAL BANK
sold to plaintiff by way of a written suspensive sale agreement two
trailers for NS198 905-32.
alleged that there was a term (specific or implied) in the agreement
that defendant would give plaintiff ownership of the trailers when
plaintiff had discharged its obligations under the agreement.
the currency of the agreement, defendant sold to a third party one of
the trailers by way of a suspensive sales agreement and gave the
third party possession and eventually ownership thereof. According to
plaintiff this constituted a repudiation of the agreement which
plaintiff accepted and sued defendant for damages which was refund of
all monies paid pursuant to the agreement.
admitted concluding the agreement but denied that there was a term
specific or implied that ownership would pass.
pleaded a host of alternative pleas some contradictory and confusing.
The plea finally amounted to the denial of each and every allegation
and conclusion by plaintiff except that the contract of sale had been
the contract of sale to plaintiff contained a term that defendant was
the owner and that ownership
would pass to plaintiff when
plaintiff discharged its obligations under the contract.
v S.A.Milling Co Ltd 1921
AD at 398
to the application of the contra
Ltd v Gerber Goldschmidt SA Ltd 1983(1)
SA at 262)
the sale to the third party by defendant constituted breach of
contract with plaintiff entitling the latter
to accept the breach
and to sue for damages.
TPD at 269
had pleaded that plaintiff had previously breached the suspensive
sale agreement and therefore could not repudiate the current
agreement and claim damages but the Court found that even if
defendant had been entitled to terminate the contract between the
parties by virtue of plaintiffs alleged breach, defendant had not in
fact or in law
Financial Service (Pty) Ltd v Ark Trading 1998
the contrary defendant held plaintiff to the contract and according
to defendant's Books of Account the full amount for the trailers had
been paid and therefore had been paid twice for one trailer namely by
the Third Party and by
of Account show receipts, where such are against the interests of the
owner and such books, can constitute admissions that such receipts
were received by the party concerned. Naik
v Pillay 's Trustee 1923
could not return the trailers as one was sold by defendant to the
third party and the other was already in the possession of defendant.
was therefore entitled to repayment of N$198 905-32 which was
standing to his correct in defendant's books.
No.: I. 653/1999
THE HIGH COURT OF NAMIBIA
the matter between:
NATIONAL BANK OF NAMIBIA LTD DEFENDANT
on: 2000.3.28; 2000.9.7&8; 2000.10.03; 2000.12.12&13
A.J.: Plaintiff is represented herein by Mr Maselle instructed by
the firm Basil Bloch and defendant is represented by Ms Vivier
instructed by the firm of Diekmann Associates.
the course of this trial the pleadings of both parties were amended
from time to time, the principal amendments being initiated by the
plaintiff. According to the particulars of claim, on 16th
March 1994, plaintiff purchased two trailers, a Zali and a Zelna,
from defendant by way of a written suspensive sale agreement, the
chassis number of the Zali being 880315143060. An almost illegible
copy of the agreement is annexed to the particulars of claim. During
the trial the Zali was frequently referred to by both counsel and
witnesses as a Zali or Zanli. Plaintiff alleges in paragraph 4 of
the particulars of claim that it was a material express,
alternatively implied, term of the agreement that defendant was the
owner of the trailers and would pass the ownership to plaintiff,
when the latter had discharged its obligations under the agreement.
Plaintiff then alleged that defendant breached the aforesaid written
suspensive sale agreement in that defendant during or about March
1995, entered into a written suspensive sale agreement with one
Bindeman in terms whereof the defendant sold to Bindeman who
purchased from defendant, the Zali trailer with chassis number
880315143060 and pursuant to that agreement, Bindeman obtained
ownership of the trailer. As a consequence of the aforegoing
defendant was not able to pass ownership of this trailer to the
plaintiff. As a result of the said breach plaintiff cancelled or
cancels the written sale agreement.
the alternative, plaintiff alleged other grounds for claiming the
same relief. In view of the decision to which this Court has come,
it is unnecessary to canvass those.
alleges that as a result of the defendant's breach of contract,
plaintiff has suffered damages in the amount of N$198 905-32 which
is the amount paid by plaintiff to the defendant and which
represents the credits as reflected in the defendant's books of
account relating to plaintiffs indebtedness to defendant and as set
out in an annexure which was annexed by plaintiff to his particulars
avers that he is not in a position to tender the return of the
trailers inasmuch as defendant alternatively a third party is in
plaintiff claims payment by defendant of the sum of N$198 905-32
plus interest at 20% per annum a
tempore morae and
was a request for further particulars by the defendant and an answer
thereto by plaintiff, the relevance whereof, is that plaintiff
alleged that the agreement was cancelled by plaintiff by the service
of the summons herein.
filed a plea wherein it admitted concluding the agreement annexed to
the particulars of claim and delivering the trailers pursuant
thereto, to plaintiff.
to what is said hereunder, defendant thereafter virtually denied
each and every material allegation contained in the particulars of
claim and accompanied each denial with pleas in the alternative also
in effect constituting denials of plaintiffs allegations. More
particularly, defendant denied the allegation by plaintiff that
there was a term (express or mplied) in the agreement that defendant
was the owner of the trailers and that defendant would or would be
able to pass ownership of the trailers to plaintiff. As an
alternative to the said denial defendant pleaded that there was an
implied term that once plaintiff had complied with the terms of the
agreement that no one with a better title to the trailers would
claim the trailers from "defendant" (sic) and that
defendant guaranteed plaintiff "vacua
defendant alleged that this warranty against eviction only arose
after plaintiff had complied with all it's obligations under the
agreement, defendant alleges that "during the duration"
(sic) of the agreement, plaintiff was not evicted or threatened with
eviction. Immediately after this allegation and still as part of
that alternative plea, although defendant had previously denied that
there was a term in their contract obliging defendant to pass
ownership, when plaintiff had discharged its obligations, defendant
nevertheless pleads that plaintiff had "breached the terms of
clause 5.1 and clause 10" and "never became entitled to
demand transfer of ownership" and then defendant alleges in
paragraph 2.2.2.(c) of its plea;
parted with the trailers of his own accord during or about September
1994 by returning the trailers to the seller who sold the trailers
as it is admitted by Defendant that the seller of these trailers, is
the defendant, these allegations are, to say the least,
uncomprehensible. These allegations are also in conflict with
subsequent allegations in the plea, that defendant was placed in
possession of the trailers by the deputy sheriff who had apparently
defendant denied that it breached a material term of the agreement
and denied that it entered into an agreement with Bindeman in terms
whereof Bindeman purchased a Zanli or Zali trailer from defendant.
However, defendant then pleaded in the alternative that if it had
sold a trailer to Bindeman such trailer was not the same trailer
which it had sold to plaintiff and it then denied that Bindeman
became owner of the trailer which defendant had sold to Bindeman.
alleged further that plaintiff could not cancel the suspensive sale
agreement as alleged by plaintiff, in that at that time there was no
longer an agreement in existence. In one of its many alternative
pleas, defendant alleges that the agreement between the parties was
only terminated on 23rd
October, 1998 "when the outstanding balance on the account was
settled following the sale of one of the trailers". This would
appear to be a categorical statement by defendant that on 23rd
October 1998, plaintiff paid and discharged all its obligations in
terms of the suspensive sale agreement.
the aforesaid allegation defendant thereafter alleges in it's plea
that plaintiff tailed to comply with the provisions of the agreement
and therefore defendant terminated the agreement.
thereupon pleads that it took possession of the trailers afer the
deputy sheriff had attached them, plaintiff being in arrear with its
monthly instalments. Defendant denies plaintiff s allegation that a
third party has taken possession of a trailer and adds that it has
no knowledge of whether a third party took possession of the other
trailer and puts plaintiff to the proof of its allegations.
balance of the plea relates mainly, but not entirely, to those
portions of the particulars of claim which I have said are
unnecessary to consider. However, relevant in the balance of the
plea, is the allegation that plaintiff is claiming "restitutional
damages" but has failed to tender the return of the trailers.
In addition, defendant says that plaintiff breached the agreement in
that he failed to keep the trailers in his possession and control
and allowed one of these trailers to be attached by the deputy
sheriff. Defendant enlarged upon the breach of this term and pleads
that this "entitled"
defendant to terminate the agreement. However, defendant did not
plead that it in fact terminated the agreement and hereunder I refer
to clause 10 of the agreement and defendant's failure to terminate
the agreement in terms thereof. Defendant in fact recognised that it
had not terminated the agreement and pleads that it "tendered
delivery of the trailer previously attached by the deputy sheriff.
Defendant then says that plaintiff failed to take delivery thereof.
does not dispute the allegations by plaintiff concerning its
book-keeping records but defendant denies that plaintiff is entitled
to the relief, he claims and asks that such claims be dismissed with
Vivier submitted detailed heads of argument and the Court is
grateful to her for this courtesy. She stressed that in a contract
of sale at common law, there is no implied term that the seller is
the owner of the subject matter of the sale or that the seller would
pass ownership to the buyer. At common law there is only an implied
warranty against eviction and the buyers rights to undisturbed
possession is referred to as avacuapossessio.
seller impliedly warrants that the buyer will not be disturbed in
his possession by someone who has a better title than he has. Ms
Vivier stressed the difference between ownership and possession and
that plaintiff had not been evicted or threatened with eviction.
African Mercantile and Company Law (3rd
ed at p 132) the learned author writes:
the buyer is, therefore, to have a title which is impregnable he
must become the owner of the article sold and not have simply vacua
the protection afforded by the warranty against eviction."
"ownership is the state where a person is entitled to do with a
thing, anything he wishes for his own benefit, provided he remains
within the law. But, from the buyers point of view, the importance
of becoming owner is that no one can then have a better title to the
thing and eviction becomes impossible".
far short of ownership and the parties can by mutual agreement,
agree to vary the common law and to record that the seller is the
owner and will remain the owner and will pass such ownership to the
purchaser when the buyer discharges his obligations in terms of the
contracts. Implied terms from the common law which are not varied,
will still be applicable.
there are terms which are tacitly included in a contract, which is
otherwise agreed upon. Such terms are referred to as implied terms.
The implied warranty against eviction is a good example and was
referred to by Ms Vivier. Implied terms may be implied by law, (as
the warranty against eviction), or, they may be implied by reason of
the facts and surrounding circumstances. Frequently contracting
parties fail to express their intention clearly in respect of a
particular clause, in a written deed of sale. That intention may in
fact be gathered without having to have recourse to an "implication"
or there may be a necessary implication in order to make the
contract operative, or, the facts may lead to an implication arising
from law, common or statute.
the instant case there are two clauses in the agreement to which I
will refer and which refer to ownership.
2.1 provides as far as is relevant:
is aware that all seller's rights in this agreement including the
right to ownership in the goods are to be ceded to FNB and together
therewith ownership of the goods transferred in contemplation
view of the fact that in terms of the agreement and the pleadings,
the seller is FNB itself, that is, defendant, the clause makes no
sense and is inapplicable to present circumstances. However, it may
well be possible to refer to it should the necessity arise in
respect of other clauses. It is unnecessary to dwell on this, save
to expand on the inapplicability of the clause in present
(FNB) is a bank and one of its commercial activities is to finance
the purchase and sale of property including vehicles. The agreement
under consideration is a stereotype printed agreement used by
defendant (see the agreement in the sale to Bindeman hereunder) with
blank spaces to be completed on each occasion. Clause 2.1 of the
agreement indicates that had the seller not been defendant but a
different party as from the very commencement of the agreement,
defendant would have acquired all the rights including ownership
from the seller and defendant would therefore have become the
seller. Where FNB is in fact the seller from the commencement of the
agreement there seems to be no logical reason why FNB's legal
position should be any different. However, factually the clause was
meant to be applicable where defendant was not the initial seller.
4.1 of the agreement provides:"Ownership of the goods shall
remain vested in seller and not pass to
until receipt by seller of all amounts payable by buyer under this
clause 2.1, this clause is clearly applicable in the present case.
The terms thereof are explicit. Defendant who drafted the agreement
and was the stipulator, described itself as having "ownership".
If defendant was not the owner, defendant would have been dishonest
in so doing, and one must accept that all parties are honest unless
the contrary is proved.
in terms of the common law when goods are sold on credit and the
seller is the owner, ownership therein ipso
when the price is fully paid and delivery is given.
v S.A. Milling Co Ltd 1921
AD at 398
does not have to provide for this eventuality in a deed of sale. But
to ensure that it will happen, one can provide that the seller
remain vested with ownership until the buyer pays after the goods
contract therefore specifically provides that defendant is the owner
and will remain owner until the plaintiff discharges its obligations
under the agreement and it is then implied that it will pass
ownership to plaintiff when this happens.
"golden rule' of interpretation of written instruments such as
written deeds of sale is that the grammatical and ordinary sense of
the words must be adhered to, unless this would lead to some
absurdity, or, some repugnancy with the rest of the instrument.
Bank of South Africa Ltd 1967(4)
SA 550 (A) at 556 Crispette
and Candy Co Ltd v
Michaelis, N.O. and Leopold Alexander Michaelis, N.O. 1974(4)
SA 521 (A) at 543
meaning of clause 4.1 as analysed above, does not lead to any
absurdity or repugnancy with the rest of the agreement. It is in
fact in conformity therewith. I accordingly hold that it is
expressly provided that the defendant is the owner of the trailers
and that it must remain owner of the trailers until, plaintiff has
paid all amounts payable under the agreement and that it is then
implied that thereupon defendant must pass ownership therein to
plaintiff. I hold that this term by its very nature is a material
term of the contract.
ambiguity in the interpretation of this clause which may tend to be
unfavourable to plaintiff is eliminated by the application of the
stipulatorem verba interpretanda and
of interpretation of written instruments. In terms thereof where
ambiguity exists, the contract is interpreted against the stipulator
and person who drew the agreement. They need not be invoked where
the meaning is clear.
Ltd v Gerber Goldschmidt SA Ltd 1983(1)
SA 254 at 262 (A)
alleged that the aforesaid term was breached by defendant in March
1995, when defendant sold the Zali trailer, chassis number
880315143060, to one Bindeman and gave the latter ownership thereof
pursuant to such agreement. Defendant denied each and every one of
called Bindeman to testify. Bindeman said that he had purchased from
defendant the Zanli trailer (I have pointed out that the parties
referred to the Zanli as the Zali and vice versa) with chassis
number 880315143060, and handed into the Court a copy of a
suspensive sale agreement dated 29,h
March 1995, in support thereof. In the copy, however, the trailer is
described as a "rebuild (sic) Henred Trailer" with a
chassis number 880315143060, but inspite of the said description,
Bindeman said it was not a Henred Trailer but that it was a Zanli
(Zali) and he had therefore struck out the name "Henred"
and substituted the name "Zanli". Bindeman had no doubt on
argument Ms Vivier contended that Bindeman was a poor witness,
unsatisfactory in many respects and that his evidence should be
is a person who makes a living out of the transport business and
does not have any skills outside his occupation. He has been in the
transport business and involved with trailers for many years. He
certainly impressed the Court with a sound knowledge relating to
trailers. This knowledge was tested in cross-examination but not
dented. He said he could identify his own trailer at night and from
a distance and even if it had a false registration number. I am
convinced that he could do this. It is true that on the question of
dates he was somewhat vague but some matters on which he was
questioned occurred some five years previously and it is not
surprising that he could not recall dates which he had no reason to
remember. He was prepared to concede that chassis numbers could be
tampered with and that they could be altered and substituted. There
was, however, no evidence that the chassis number 880315143060 on
the trailer he bought from defendant, or, that the chassis number on
the Zali that plaintiff bought had been tampered with, altered, or
substituted. They were identical unaltered chassis numbers.
necessity for giving an adequate description of the subject matter
in suspensive sale agreements has been commented on by learned
judges and academics from time to time. In
R v Vermeiden 1959(1)
SA 303 (G.W.) the Court somewhat aptly said:
doubt it may be difficult to describe an armchair in such a way that
it can readily be identified later, but that does not seem to be any
justification for giving a vague or casual description of a motor
vehicle which can be identified by its serial number or its engine
number. Anything short of that may not be sufficient to identify the
vehicle in the event of a dispute and an innocent third party may be
prejudiced as a consequence."
store is placed on the name and description of a vehicle sold in a
suspensive sale agreement, a major element for an accurate
description's the engine number or serial number or chassis number.
the course of his cross-examination, Bindeman produced two
documents. One such document appears to be an extract of the
official Motor Vehicle Licence Register. This document records the
name of Bindeman and that the Zanli trailer model 1988, has a
chassis number 880135143060. Inasmuch as this information would
probably have been given by Bindeman himself to the licencing
authority, it does not constitute proof of the information therein
v de Villiers 1944
A.D. 493) But if this information was given by him it was furnished
along time before these proceedings
instituted. Bindeman is an objective witness with no interest in
this matter. The document was elicited in cross-examination and was
not produced to bolster his evidence. The licence and the
information in the register therefore substantiate the reliability
of Bindeman as a witness.
second document is an invoice of a sale on 4"1
December 1998 of the aforesaid "1998 Zanli Trailer" to one
J G Thompson by Bindeman who declared therein that the trailer was
his property and that it was fully paid for. Bindeman who has
testified that he purchased this trailer from defendant had handed a
copy of the deed of sale concluded by him with defendant into Court.
This deed of sale save for the necessary variations as to
thedescription of the property sold, the price and terms of payment,
is the identical document to the one defendant used in its sale of
the two trailers to plaintiff. I have already pointed out that in
terms of that agreement defendant was obliged to transfer ownership
to the purchaser who was plaintiff, when the purchase price was
paid. In respect of the sale to Bindeman by defendant, Bindeman
testified that he had discharged all his obligations to defendant
and pursuant to the sale he had been given possession and ownership.
Although in its plea, defendant had denied that Bindeman became
owner, defendant did not call any witnesses to support its denial.
no stage did defendant deny that Bindeman had discharged his
obligations under the agreement. Bindeman's evidence therefore that
he paid the purchase price in full and that he was the owner is not
gainsaid and it is substantiated by the invoice in respect of the
sale of the Zali to Thompson.
its plea, defendant has alleged that he was indeed in possession of
the two trailers after the sale to plaintiff in March 1994. How it
came to be in its possession is not material. However, being in
possession if the Zali Trailer, defendant was in a position to sell
the Zali Trailer to Bindeman and to give him possession and to pass
ownership thereof, to him, in due course.
I accept the evidence of Bindeman that on 29th
March 1995, he purchased from defendant by way of a written
suspensive sale agreement the Zali tailer, also known as a Zanli
trailer, with chassis number 880315143060 and that he became the
owner thereof and sold and delivered it to one Thompson.
TPD 261 (T) at 269, Tindall, J., with whom Gey van Pittius, J.,
concurred, held that;
where the buyer can claim transfer by paying the balance due, it is
inherent in the contract that the seller shall not disable himself
from giving transfer by transferring to a third person while the
contract is pending."
action therefore in selling on 29th
March 1995, by way of a written suspensive sale agreement, the Zali
trailer and by transferring possession and ownership to Bindeman
thereof at some future date, pursuant to such sale, constituted a
breach of the contract that defendant had concluded with plaintiff.
however, pleads that by reason of plaintiffs breaches of contract
particularly its failure to pay its instalments punctually in terms
of the contract, there was no longer a binding contract capable of
being breached by defendant.
10 of the deed of sale concluded by plaintiff and defendant on the
March 1994, provides inter
should plaintiff commit a breach of the said agreement such as
defaulting in punctual payments of the instalments or by "allowing
the goodsto be seized under due process of law", the defendant
but not obliged to terminate",
the agreement between the parties. (My emphasis)
the defendant have wanted to terminate the contract by accepting the
alleged breach, it was obliged to communicate the acceptance of the
alleged repudiation or breach, to plaintiff.
SA 100 (A) at 100 and 105 and 112-113 Meridian
Financial Service (Pty) Ltd v Ark Trading 1998 (Nm) 74)
is no evidence whatsoever that defendant elected to terminate the
said agreement and, if it had wished to do so, that it communicated
to plaintiff the acceptance of the breach. On the contrary, there is
evidence which is incontrovertible, that notwithstanding the alleged
breaches of the agreement by plaintiff, the defendant elected to
abide by the contract and did not accept the breaches as terminating
the contract. Firstly, this evidence is to be found in defendant's
very own books of account. Plaintiff annexed to its Particulars of
Claim, the full account relating to plaintiff as it appears in
defendant's books. This was not denied by defendant. Indeed it could
not be denied. Defendant as it was obliged to do discovered the said
account in its books and this discloses that the account was never
closed off until the full purchase price was paid. By agreement
between counsel, no witness was necessary to hand the account in.
Its very existence was regarded as adequate. Ms Vivier did not admit
anything other than that the account discovered, was the account in
the books of defendant. I shall return hereunder to the significance
in law of entries in the books of account of a party. It has been
held that statements contained in a persons' books of account are
evidence against such person as admissions of their contents.
v Pillay's Trustee 1923
Maselle did not call plaintiff to testify. Defendant called
plaintiff as a witness. He testified that whatever was paid into the
said account to discharge his indebtedness with defendant, was paid
by him or on his behalf. He enlarged on this and said that at one
stage he had given a certain Schneider possession of the trailers
and that Schneider undertook to pay defendant for those trailers on
his behalf. When Schneider died his deceased estate was made to pay.
Any dispute between Schneider and plaintiff is obviously irrelevant.
regard to plaintiffs account another contradiction appears in
defendant's plea. Despite pleading that the agreement was terminated
by reason of plaintiff defaulting in its payments of instalments,
defendant pleads in paragraph 4.2 as follows:
pleads that the agreement was terminated already on 23 October 1998
when the outstanding balance on the account was settled, following
the sale of one of the trailers."
is an admission by defendant that the fullbalance of the account was
paid and furthermore this occurred on 23 October 1998 which was some
three years after Bindeman purchased the Zali trailer.
the aforegoing, defendant tried a further defence pleading that
after it had gained re-possession of the trailers, it had tendered
the return thereof to plaintiff in order to
B. Maselle Messrs B Bloch