THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 34/10

In the matter between:

PIETRICH FREDERICH GERHARDT CROTS
Appellant

and

JACQUES PRETORIUS
Respondent

Neutral citation:
Crots v Pretorius (34/10) [2010] ZASCA 107
(17 SEPTEMBER 2010)

Coram:
HARMS DP, NAVSA, SNYDERS, MHLANTLA JJA AND

K PILLAY AJA

Heard:
1 SEPTEMBER 2010

Delivered:
17 SEPTEMBER 2010

Summary:
Condictio furtiva – dolus eventualis sufficient to establish -
Defamation – insufficient proof.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Free State High Court (Bloemfontein) (Van der Merwe J and
Ploos van Amstel AJ sitting as court of appeal):
1. The appeal is upheld with costs.
2. The order of the court below is replaced with the following:
a. ‘The appeal is upheld with costs;
b. The order of the court a quo is replaced with the following:
i. The defendant is ordered to pay the plaintiff the amount
of R45 000;
ii. The defendant is ordered to pay interest on the amount of
R45 000 at the rate of 15,5% per annum from 30 October
2006 until date of final payment;
iii. The defendant is ordered to pay the costs of suit,
including the costs of 7 April 2006 and 8 September
2006;
iv. The defendant’s counterclaim is dismissed with costs.’
______________________________________________________________
JUDGMENT

Snyders JA (Harms DP, Navsa, Mhlantla JJA and Pillay AJA concurring)

[1] On 5 August 2005 the appellant discovered that he had become a victim of
stock theft when he found that nine of his gravid heifers had been stolen. His

subsequent investigations led him to institute action in the Kroonstad
Magistrate’s Court against the respondent for payment of R45 000, the
alleged value of the heifers. He alleged that the respondent had stolen and
slaughtered his heifers. In response the respondent instituted a counterclaim
in the amount of R50 000, alleging that the appellant defamed him by telling
third parties that he had stolen the heifers.

[2] The magistrate dismissed the appellant’s claim and upheld the
counterclaim in the amount of R20 000. An appeal to the Free State High
Court (Bloemfontein), (Ploos van Amstel AJ, Van der Merwe J concurring)
was dismissed. Leave to appeal was refused by the high court, but granted on
petition to this court.

[3] The condictio furtiva is a delictual action for the recovery of patrimonial
loss as a result of theft. It is available to an owner or anyone who has an
interest in the stolen thing, against a thief or his heirs.1

[4] The respondent’s version offers all the facts on which this case is to be
decided. He is a stock speculator of seven years’ standing. He knows about
the provisions of the Stock Theft Act 57 of 1959 (the Act). A man who only

1 C G van der Merwe ‘Things’ Joubert (ed) The Law of South Africa (2 ed) vol 27 para 387;
Minister van Verdediging v Van Wyk en andere 1976 (1) SA 397 (T) at 400C and 402G-403B;
Clifford v Farinha 1988 (4) SA 315 (W) at 322G-323F.

introduced himself as Petrus, telephoned him. Petrus offered to sell nine head
of cattle to him. He agreed on the basis that he would pay Petrus the price the
cattle would fetch upon slaughter at the abattoir, less his commission. Petrus
was satisfied with this arrangement. As Petrus had no transport available for
the cattle, the respondent arranged for the collection of the cattle by a private
transporter. Petrus did not disclose and the respondent did not ascertain the
collection point for the cattle. They arranged that Petrus would send
somebody to meet the truck driver at a rendezvous point and accompany him
to where the cattle had to be loaded. Pursuant to the respondent’s
arrangements nine of the appellant’s gravid heifers were collected from his
farm on 5 August 2005, taken to Country Meat abattoir in Kroonstad and
slaughtered.

[5] Despite the respondent’s usual practise to make payment to his customers
seven days after the sale, Petrus telephonically asked him the very next day
for an advance on the money and he agreed. On 5 August 2005 he paid a
R2000
cash
advance
to
Petrus,
without
obtaining
any
form
of
acknowledgement of the payment. Needless to say, that was the last that was
seen or heard of Petrus.

[6] The respondent did not involve himself in the transaction beyond making
the arrangements for the collection of the cattle and delivery to the abattoir.
He made no attempt to comply with the Act. He did not ask for any of Petrus’

details or credentials, nor of the cattle, their breed, age, whether or how they
were branded or ear marked, or the place for collection of the cattle.2 In fact,
he left the Kroonstad area to attend to business in Johannesburg.

[7] The provisions of ss 6 and 8, and potentially s 7, of the Act applied to the
transaction and obliged the respondent to obtain a removal certificate from the
owner of the cattle and to supply a document of identification, signed by him,
to the abattoir. The removal certificate and document of identification are
designed to contain the details of, at least, the owner, the identifying features
of the cattle and their destination.3 The Act aims at preventing the removal
and transport of livestock by persons with no legal entitlement to do so. By his
own admission the respondent knew his obligations in terms of the Act. No
less is to be expected of a livestock speculator. Mr de Waal, the transporter
who testified for the appellant, said that he specifically mentioned to the
respondent that there were no pre-printed removal certificates with the driver

2 GN R1685 published in GG 15990 on 30 September 1994 in terms of s 16 of the Act,
prescribes the details aimed at identification of individual animals with reference to features
like colour, breed, brandmark, earmark, tattoo and sex, which are to be contained in the
documentation required by ss 6, 7 and 8 of the Act.
3 S 6(1) obliges any person, including any agent, who sells any stock to any other person on
his own behalf or on behalf of any other person, to, at the time of delivery of the stock, furnish
such other person with a document of identification which includes details of his full name and
address or the full name and address of the person on whose behalf he was selling,
particulars of the stock, the full name and address of the person to whom the stock was sold,
the date on which the stock was sold and certifying that such stock is his property or that he is
duly authorized by the owner thereof to deal with or dispose of it.
S 7(1) obliges any person who acquires or receives into his possession for the purpose of
sale, from a person who has no known place of residence, any stock, to receive with it a
certificate of no older than 30 days from a person of authority, like a headman, as listed in the
section, which certificate describes the stock and declares that the relevant person is entitled
to dispose of or deal with such stock.
S 8(1) obliges a person who conveys or transports stock of which he is not the owner along
any public road to carry a removal certificate issued to him by the owner of the stock which
certificate is to include the name and address of the owner of the stock, the particulars of the
stock, the place from and to which the stock is being conveyed, the name of the conveyer and
the date of issue.

of his vehicle as they had run out. The respondent undertook to arrange for
De Waal’s driver to be furnished with the appropriate removal certificate, but
he failed to do so.

[8] The respondent claimed that he had no direct knowledge about the theft or
direct intent to steal the appellant’s heifers. This stance served him well in
both the magistrate’s and the high court. The magistrate’s court and the high
court only investigated whether the respondent’s version established direct
intent to steal and concluded that it did not. Therein lies the misdirection that
entitles this court to interfere.  The presence of dolus eventualis satisfies the
requirements of theft. The court below did not assess the probabilities in order
to test whether the requirements of dolus eventualis were satisfied.

[9] The respondent will be liable if, on a balance of probabilities, he
recognised the real possibility that Petrus did not have the right to deliver the
cattle to him or that it was somebody else’s cattle and he deliberately shut his
eyes and entered into the transaction, thereby taking the risk of the
consequences if the cattle were being stolen. Knowledge in the form of dolus
eventualis is present if all the objective, factual circumstances justify the
inference on a balance of probabilities that the respondent actually and
subjectively foresaw that someone else had title to the cattle.4

4 See Frankel Pollak Vinderine Inc v Stanton NO 2000 (1) SA 425 (W) at 438E-439J for a
useful discussion of dolus eventualis in a similar context, the actio ad exhibendum.

[10] The transaction between the respondent and Petrus arouses grave
suspicion. The question why Petrus involved the respondent at all when he
could have earned all of the money paid by the abattoir for the cattle, remains
unanswered. If Petrus was a legitimate seller of the cattle who had no
transport, a mere phone call to a transporter was required to arrange the
necessary transport. The respondent offered no explanation. He also did not
explain why the lack of information about Petrus and the cattle did not arouse
his suspicion, or why he made no attempt to ensure compliance with the Act.
The irrational payment of a R2000 cash advance to Petrus without any
acknowledgement of the payment also remains unexplained.

[11] By ensuring that he knew as little as possible about Petrus and the nine
cattle sold to him and by not complying with the Act, the respondent facilitated
the theft of the appellant’s cattle. His failure to make any of the necessary
enquiries overwhelmingly suggests that he was deliberately avoiding
information that would have revealed that Petrus had no rights to the cattle or
that the cattle were owned by someone else. It is inconceivable that the
respondent, a livestock speculator in the area, would not have been able to
ascertain the ownership of the cattle from the earmarks and tattoos that they
carried or the location from which they were collected. The evidence was that
all the cattle were earmarked and tattooed with the registered marks of the
appellant and were collected from the appellant’s farm.

[12] The respondent proceeded with the transaction recklessly and
deliberately failed to comply with the provisions of the Act. His professed
ignorance of the theft in these circumstances is so unreasonable that it cannot
be accepted. The respondent deliberately shut his eyes to the real and glaring
possibility that he was facilitating the theft of cattle, reconciled himself to the
risk and took it. By so doing he participated in the theft.

[13] The appellant, after due expert notice testified as a farmer and someone
who used to be in the business of marketing and selling livestock. He stated
the value of his nine gravid heifers to have been R5 000 each. He also
testified that at an auction in the area shortly after the theft heifers of a similar
age, but not with calf, fetched prices of over R5000 each. The evidence was
not disputed and no alternative value was suggested. The only dispute raised
was a denial that the heifers were recently with calf. As the respondent did not
attempt to show how this denial would affect the value of R5000, the dispute
is irrelevant.

[14] The respondent’s counterclaim for defamation was granted in the amount
of R20 000. There are three problems with this conclusion. First the
respondent did not plead to whom the defamation was published, second it
was never put to the appellant who the third parties were that publication was
allegedly made to and third the evidence tendered does not establish the
cause of action.

[15] Publication is an essential requirement of defamation that must be
pleaded and proved. The names of the persons to whom the defamatory
remarks were made and who were to be called as witnesses have to be
pleaded and disclosed during cross-examination.5 The reasons are apparent.
Apart from avoiding surprise the identity of the persons involved is also
relevant to enable the defendant to raise appropriate defences. For instance,
depending on who the person is, the defendant may rely on privilege. The
respondent attempted to meet this obligation by pleading that the appellant
made defamatory remarks to third parties to the effect that the respondent
stole his heifers. Who the third parties were, was not alleged. During his
evidence the respondent also did not disclose the identity of the third parties.
During cross-examination the appellant denied that he made defamatory
statements to third parties. The following broad allegation was then put to him:
‘. . . indien nodig gaan daar getuies geroep word wat gaan kom sê u het ook
teenoor hulle hierdie bewering [dat die verweerder u verse gesteel het]
gemaak, ek wil hê u moet mooi dink, Karoo Ochse byvoorbeeld?’ 6
The appellant not only denied the allegation, he challenged the respondent to
call the witnesses. The appellant was never given the opportunity to respond
to the identity of those to whom he allegedly published the alleged defamatory
remarks. If a witness is not given the opportunity to respond to an aspect, it

5 International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (4) 1955 (2) SA 40 (W);
Mograbi v Miller 1956 (4) SA 239 (T).
6 My translation: ‘. . . if necessary, witnesses are going to be called that would say you made
the allegation [that the defendant stole your heifers] to them as well, I want you to think
carefully, for example, persons from Karoo Ochse?’

would be unfair to reject his evidence on that aspect.7 The respondent failed
to adequately plead publication to the persons to whom it was allegedly made,
to testify to that or to confront the appellant with the identity of that person or
persons to allow the appellant a fair opportunity to respond.

[16] Mr Hanekom testified to the alleged publication for the respondent. He
was in the employ of a business previously known as Karoo Ochse. His vague
evidence was that a ‘long time ago’ he had a conversation with the appellant
which he ‘could not really remember’ or could not contextualise, but that it
‘became apparent’ during the conversation that the respondent stole nine of
the appellant’s heifers, that was ‘more or less’ what the appellant ‘alluded to’.8
The evidence of Hanekom is simply too vague to support the defamation
pleaded.

[17] For these reasons the respondent’s counterclaim should not have been
upheld.

[18] In the result I make the following order:
18.1
The appeal is upheld with costs;
18.2
The order of the court below is replaced with the following:
a. ‘The appeal is upheld with costs;

7 President of the Republic of South Africa and others v South African Rugby Football Union
and others 2000 (1) SA 1 (CC) paras 61 to 63.
8 The phrases quoted are my translations for the following: ‘lank terug’, ‘kan nie rêrig onthou’ ,
‘aan die lig gekom’, ‘min of meer’ and ‘gesinspeel’.

b. The order of the court a quo is replaced with the following:
i. The defendant is ordered to pay the plaintiff the amount
of R45 000;
ii. The defendant is ordered to pay interest on the amount of
R45 000 at the rate of 15,5% per annum from 30 October
2006 until date of final payment;
iii. The defendant is ordered to pay the costs of suit,
including the costs of 7 April 2006 and 8 September
2006;
iv. The defendant’s counterclaim is dismissed with costs.’

_________________
S SNYDERS
JUDGE OF APPEAL

APPEARANCES:

For appellant:
N Snellenburg

Instructed by Du Randt & Louw, Kroonstad,

Rosendorff Reitz Barry, Bloemfontein.

For respondent:
J G Gilliland

Instructed by Grimbeek van Rooyen & vennotte,
Kroonstad,

Quinton Grimbeek Prokureurs, Bloemfontein.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
17 September 2010
Status:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court
of Appeal.
* * *
Crots v Pretorius (34/10) [2010] ZASCA 107

When a livestock speculator buys cattle that he has no details of from a
person he knows nothing about and deliberately fails to comply with the
provisions of the Stock Theft Act 57 of 1959, his actions amount to theft of the
livestock. The instincts of Mr Crots, the victim of the theft, about right and
wrong caused him to pursue this matter since 2004 despite successive losses
in the magistrate’s court and the high court. He has now been shown by the
Supreme Court of Appeal to have been right all along.

During August 2004 nine of Crots’ gravid heifers disappeared from his farm.
He noticed tyre tracks at the likely place where the heifers were loaded and
recognised it as belonging to a vehicle of a local transporter. The local
transporter confirmed that nine heifers were collected by his truck on the
instruction of a livestock speculator from the area, Mr Pretorius. Pretorius
admitted that he instructed a vehicle to collect nine heifers and deliver them to
the abattoir where they were promptly slaughtered. Crots sued Pretorius for
the value of the heifers. He denied any knowledge of the theft, saying that he
bought the heifers from a man that was unknown to him, called Petrus,
suggesting that if the cattle were stolen, Petrus stole them and not him. He
counterclaimed against Crots for saying that he stole the heifers.

The Supreme Court of Appeal found that Pretorius, who knows the livestock
trade and the provisions of the Stock Theft Act, was part of the theft of the
Crots’ heifers. It found that Pretorius, by making sure that he knew nothing
about Petrus and the nine heifers and by deliberately not complying with the
Stock Theft Act, facilitated and was part of the theft of the heifers. Pretorius
was ordered to pay R45 000 with interest to Crots.

The decision of the magistrate’s court that Crots was to pay R20 000 in
damages for defamation to Pretorius was also set aside. The Supreme Court
of Appeal found that there was not sufficient evidence that Crots told anybody
that Pretorius stole his heifers.