THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 686/2013

Not Reportable

In the matter between

INVESTGOLD CC

APPELLANT

and

DIRK UYS

FIRST RESPONDENT
MARIESA TROSKIE

SECOND RESPONDENT

Neutral citation: Investgold CC v Uys & another (686/2013) [2014]
ZASCA 166 (01 October 2014)

Coram:
Bosielo, Tshiqi, Saldulker JJA and Mocumie, Gorven AJJA

Heard:
16 September 2014

Delivered: 01 October 2014

Summary: Purchase and Sale of coins – whether payment of the
purchase price coupled with delivery of the coins was done
with the intention to pass ownership – whether ownership of
the coins passed to the purchaser – gold coins subsequently
stolen from the vault by the seller‟s employee – whether the
subsequent theft of coins by seller‟s employees vitiated its
intention to transfer ownership.

___________________________________________________________

ORDER
___________________________________________________________

On
appeal from:
South
Gauteng
High
Court,
Johannesburg
(Boruchowitz J sitting as court of first instance):

It is ordered that:
1 The appeal is upheld with costs including the costs of two counsel
where employed.
2 The order of the trial court is set aside and substituted with an order
dismissing the plaintiffs' claim with costs.

__________________________________________________________

JUDGMENT
___________________________________________________________

Bosielo JA (Tshiqi and Saldulker JJA and Mocumie, Gorven AJJA
concurring):

[1] The crisp legal question to be answered in this appeal is whether
ownership of the coins passed to the purchaser when delivery thereof was
made. Simply put, does the fact that the purchaser had paid the price in
full and the seller had physically delivered the coins to the purchaser who
received them into his undisturbed possession make the sale complete? At
face value this legal question might appear to be simple. However, the
peculiar facts of this case prove otherwise.

[2] Shorn of  unnecessary frills the following facts are common cause:
Early in 2011, Rudy Hugo (Hugo) and Raymond Jardine (Jardine), acting

in their capacities as the appellant‟s (Investgold) brokers and therefore its
agents visited Dirk Uys (Uys) at his business premises in Brooklyn where
they sold him gold coins for R76 000 (seventy six thousand rand). Uys
indicated to them that he had R1 million which he wanted to use to buy
more gold coins.

[3] This transaction was followed by another one involving the
purchase of kruger rands and rare coins by Uys and Troskie during
January 2001 for R1,6 million in cash. It is common cause that the
quotation and tax invoice for this sale transaction were not issued in Uys‟
name but in the names of Hugo and Jardine. This is because Uys wished
to avoid the Financial Intelligence Centre Act 38 of 2001 (FICA) and also
that he did not want the South African Revenue Service (SARS) to know
about it. However, this was subsequently corrected by Investgold after
they became aware of it. The three agreed that as soon as the coins were
available Hugo would advise Uys to come and fetch them at Investgold‟s
premises in Killarney.

[4] On 26 January 2011, after being advised that their coins were
available for collection, Uys went to Investgold‟s premises at Killarney to
collect same. Upon arrival Uys  was taken to a cubicle inside the office by
Hugo where Rafique Davids (Davids), Investgold‟s stock controller,
handed the gold coins to him Uys, together with Hugo and Jardine,
inspected them to verify and satisfy himself that they were the coins
which he and Troskie (the second respondent) had ordered  as per the
quotation. Upon being satisfied, Uys, Hugo and Jardine signed the
requisite delivery note and receipt for the gold coins and returned it to

Davids. The coins were then handed over to Uys who received them into
his possession as the owner.

[5] After Uys had taken possession of the gold coins and was about to
leave Investgold‟s premises, Hugo then suggested to him that it was not
safe for him to travel with coins and, instead suggested that they be kept
safe for him in Investgold‟s vault. At this stage, Uys telephoned his
fiancee, Troskie, seeking her consent to store the gold coins in a safe as
suggested by Hugo. After he had received the go ahead from Troskie,
Uys packed the coins in a bag and, accompanied by Hugo, took them for
safekeeping to what he believed was Investgold‟s vault. Unknown to him,
the vault belonged to a company called Knox Titanium Vault Company
(Pty) Ltd (Knox Vaults). Uys, assisted by a lady called Roxy who
apparently worked for Knox Vaults, put the gold coins in a safe. This was
after Roxy had explained all the security features of their vaults to him
and he was satisfied that his gold coins were safe. After he had put the
gold coins in the vault, Roxy gave him one key for the safe whilst she
retained the other one. Uys was told that both keys were needed to gain
access to the gold coins. In other words, none of them could open the
vault without the other one.

[6] A tragic event then occurred. On 11 March 2011, Gert Pieter
Erasmus (Erasmus) Investgold‟s general manager telephoned Uys and
informed him that his gold coins had been stolen. It is common cause that
Hugo had stolen the coins from Knox‟s safe after they had been placed
there. Later Hugo admitted the theft in an affidavit and returned some of
the coins. It is not in dispute that Hugo had already on 19 January 2011,
unknown to Uys, forged Uys‟ signature to lease the safe from Knox

Vaults. Hugo had misled Uys to believe that he was storing his coins with
Investgold when in truth it was with Knox‟s Vault.

[7] Based on these facts Uys and Troskie issued summons against
Investgold in the main for specific performance by way of delivery of the
coins which they had purchased and which were stolen by Hugo. The
court below granted judgment in favour of the respondents on this claim.
As indicated, the issue was whether Hugo and Troskie had established
that, when the coins were delivered to Uys, Investgold did not have the
intention to transfer ownership to Uys and Troskie

[8] In motivating his judgment, the learned judge held that, because
Investgold was an artificial person, it could only act through a natural
person. These natural persons, through whom it acted, had to have the
intention to pass ownership. He found that these natural persons from
whom the intention to pass ownership must be inferred were Hugo and
Jardine, and not Erasmus, the manager or the stock controller, Davids.
This is because he found them to be the people who were instrumental in
the sale transaction and therefore Investgold‟s directing minds. The
learned judge held as follows:
„It is clear therefore that there was no intention on the part of the defendant to transfer
ownership of the coins to the plaintiffs.… The presence of an intention to steal the
coins on the part of the persons who were the directing minds of the defendant would
have prevented the transfer of ownership.‟
He proceeded further as follows:
„The element of physical possession or detentio has also not been established. It is
clear on the evidence that Hugo, assisted by Jardine, were at all material times in
control of the coins. Even though the coins were pushed through the glass enclosure
by the stock controller, Davids, they exercised de facto control. The fact that Uys

handled the coins momentarily during the verification process did not make him the
possessor of the coins. Even if I am incorrect in this regard, Uys‟ physical possession
was not accompanied by a concurrent intention by the defendant to convey ownership
to the plaintiffs.‟

[9] Investgold appeals against this judgment with the leave of the court
below.

[10] Counsel for Investgold submitted that at the critical time when Uys
received the coins from Davids, delivery of the coins was completed. It
was contended further that when Uys decided, after a telephonic
consultation with Troskie, to take the coins for safekeeping to Investgold,
he exercised free and independent election as the owner of the coins. At
this stage, so the contention went, he had full dominium of the coins and
enjoyed undisturbed possession.

[11] On the other hand, although admitting the handing over of the
coins, the respondents‟ counsel submitted that the mere physical handing
over of the coins did not constitute delivery as Hugo and Jardine never
intended to pass ownership of the coins to Uys and Troskie. This is
evidenced by the fact that as far back as 19 January 2011, Hugo had
already formed the intention to steal the coins when he forged Uys‟
signature to procure the safe from Knox Vaults. He contended further that
the intention to steal by Hugo and possibly Jardine negated any intention
on the part of Investgold to transfer ownership of the coins to Uys and
Troskie. It suffices to state that this submission ignores the fact that with
the systems set up by Investgold, Hugo would not succeed in stealing the

coins whilst they were in Investgold‟s custody. This is the reason why he
had to ensure that Uys received them in his possession.

[12] Relying on Consolidated News Agency (Pty) Ltd (In Liquidation) v
Mobile Telephone Networks (Pty) Ltd 1 it was submitted that as Hugo and
Jardine were Investgold‟s agents and directing minds, their actions and
intentions were those of Investgold. In other words their actions and
intentions are attributed to Investgold. Based on this it was contended that
because Hugo and Jardine never intended to pass ownership in the coins
to Uys and Troskie, Investgold never discharged its legal obligation to
transfer ownership. It was submitted that what happened on 26 January
2011 was not actual and genuine delivery but a mere sham or ruse.

[13] A contract of purchase and sale, emptio vendito is described as a
contract whereby one person promises to deliver a thing to another and
the latter in return promises to pay a price therefor. The obligation of the
seller is to give the purchaser undisturbed possession (vacua possessio) of
the merx coupled with a guarantee against eviction to the purchaser.2

[14] In a cash sale where payment has taken place, ownership will be
transferred on delivery.3 It is trite that the intention to transfer and receive
ownership (animus transferandi dominii and animus accipiendi dominii)
is proved in various ways and can be inferred from the circumstances.4 In
this regard, Watermeyer JA stated:5

1 Consolidated News Agency (Pty) Ltd (In Liquidation) v Mobile Telephone Networks (Pty) Ltd 2010
(3) SA 382 (SCA) paras 30 and 31.
2 G R J Hackwill M A Mackeurtan’s Sale of Goods in South Africa 5 ed (1984) at 66.
3 Electra Home Appliances (Pty) Ltd v Five Star Transport (Pty) Ltd 1972 (3) SA 583 (W) at 585-6.
4 Commissioner of Customs and Excise v Randles Brothers & Hudson Ltd 1941 AD 369, at 398-400.
5 At 398

„Ownership of movable property does not in our law pass by the making of a contract.
It passes when delivery of possession is given accompanied by an intention on the
part of the transferor to transfer ownership and on the part of the transferee to receive
it. If it is delivered in pursuance of a contract of sale, the ownership may pass at the
time of delivery or it may not.‟
In Cornelissen NO v Universal Caravan Sales (Pty) Ltd,6 the majority
held that:
The words “sold and delivered” do not necessarily connote that ownership in the
goods has passed to the purchaser, for it is trite law that mere physical delivery of
property, unaccompanied by an intention to transfer ownership, does not give the
recipient dominium.‟

[15] It is axiomatic that the vexed legal question whether there has been
delivery accompanied by an intention to pass dominium depends upon the
intention of the parties and the facts of each case.7

[16] This question resolves itself into two issues. The first is to
determine who to look to as being in a position to form an intention to
transfer ownership on behalf of Investgold. The second is to determine
the intention of Investgold at the time. As mentioned, the court below
held that the brokers were the guiding minds of Investgold. I do not
agree. The sole role of the brokers at the time the coins were delivered
was to counter-sign the delivery notes once Uys and the brokers had
established that the correct coins had been delivered. Beyond that, the
brokers played no part in the delivery of the coins. The guiding mind of
Investgold was that of the general manager Erasmus in setting up the
system to be implemented for cash sales and deliveries in particular. This
system was set up so as to pass ownership. The evidence shows

6 Cornelissen NO v Universal Caravan Sales (Pty) Ltd 1971 (3) SA 158 (A) at 179D-E.
7 R Norman Purchase and Sale in South Africa (1919)at 290.

conclusively that the coins were delivered to Uys by Davids on 26
January 2011 with the intention to pass ownership. Uys in turn accepted
ownership of the coins with the intention of becoming the owner.

[17] As regards the second question, it seems to me that the intention of
Investgold was that transfer of ownership would take place when the
system for delivery had been implemented and completed. This system
was set up in order to ensure that delivery took place in accordance with
an accepted quotation (order) and that documentary proof of this delivery
was obtained. It is therefore my view that, in the present matter, because
effect was given to the system for delivery and the process was followed
to completion, the intention to pass ownership was proved. In any event,
if the „guiding mind‟ must be determined at the time of a particular
delivery, it could not have been those of Hugo or Jardine but that of
Davids whose job was to select coins in accordance with the order,
deliver them to Uys and ensure that delivery was documented by way of
his signature and those of the broker or brokers who had been responsible
for the sale.

[18] Even if it can be argued that the mind of Hugo must be looked to, it
is inconceivable that, knowing as he did that he could not steal coins in
the possession of Investgold, he held a mental reservation concerning
transfer of ownership when delivery took place for the sole reason that he
wanted to steal from Investgold rather than from Uys and Troskie. He
was intent on stealing the coins at some future date. The only persons he
could successfully persuade to adopt his scheme were Uys and Troskie.
No inference can be drawn that he did not intend them to become owners
because he did not want to steal from them.

[19] It follows that the court below erred in finding that ownership of
the coins had not passed to Uys and Troskie. It further erred in finding
that, despite physical delivery having been effected, the coins were at all
times under the control of Hugo. If this were in fact so, Hugo would not
have needed to ask Uys whether he wished to deposit the coins for
safekeeping. He may have thought, with justification that Uys was under
his influence to place the coins where he could steal them but he was not
in control of the coins. Investgold accordingly discharged the onus to
prove the transfer of ownership of the coins to Uys and Troskie. In doing
so Investgold discharged its obligations under the cash sales. As such, the
claim for specific performance ought to have failed.

[20] Uys and Troskie relied on two alternative claims. The first one was
based on the fact that after becoming aware  that Hugo and Jardine had
ordered the  coins in their names, Investgold intentionally or negligently
omitted to advise them of this fact which resulted in them failing to take
steps to protect their interests, and allowing Hugo to steal their coins. The
second one is based on an alleged misrepresentation by Hugo and Jardine
which led to Uys storing his coins at Knox Vaults after they led him to
believe that they would be safe whereas they were not safe as Hugo
subsequently stole them from the safe. The learned judge did not deal
with the two alternative claims. Save to state that they persisted with the
two alternative claims, counsel for Uys and Troskie did not make any
submissions in support of the two claims. As regards the first of these, the
law recognises no such legal duty. As regards the second, the theft by
Hugo has nothing to do with carrying out his employment with
Investgold. No vicarious liability for his actions thus arises. It suffices to
state that the two alternative claims have no merit.

[21] In the result, the following order is made:
1 The appeal is upheld with costs including the costs of two counsel
where employed.
2 The order of the trial court is set aside and substituted with an order
dismissing the plaintiffs' claim with costs.

_________________

L O BOSIELO

JUDGE OF APPEAL

Appearances:
For Appellant
:
AG South

Instructed by:
Maritz Smith Van Eeden Inc.; Johannesburg

Symington & De Kok, Bloemfontein

For Respondent
:
H van Eeden SC (with him JW Steyn)

Instructed by:

Bento Inc.; Johannesburg

Phatshoane Henny Attorneys, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

01 October 2014

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.

INVESTGOLD CC V UYS & ANOTHER (686/13) [2014] ZASCA 166 (01 OCTOBER 2014)

Today the Supreme Court of Appeal (SCA) upheld the appellant’s appeal against a judgment
by the South Gauteng High Court (Boruchowitz J) with costs. The order of the trial court was
set aside and replaced with an order dismissing plaintiff’s claim with costs.

The respondent had issued summons against the respondent for specific performance in the
form of delivery of the merx. The respondent’s case is that they had purchased Kruger coins
from the appellant for R1,6 million cash. The appellant was represented by its brokers, Hugo
and Jardine. On 19 January 2011, Hugo forged Uys’ signature to secure a safe at Knox Vault.
On 26 January 2011, the appellant’s stock controller, Davids, delivered the Kruger coins to
Uys, who after inspecting them signed a delivery receipt. Uys was assisted by Hugo and
Jardine to inspect and verify the Kruger coins. As Uys prepared to leave with the Kruger
coins, Uys suggested that he should take them for safekeeping at Investgold’s safe as it was
unsafe to travel with them. After receiving the Kruger coins, Uys took them for safekeeping at
Knox Vault whilst under the erroneous belief that it was Investgold’s safe. Investgold had no
control over Knox Vault. Sometime hereafter, Hugo stole Uys’ kruger coins from Knox’s Vault.

The trial court found that as the appellant is a corporation, it acted through its agents or
employees. It found further that when Hugo secured the safe at Knox’s Vault, he had already
formulated the intention to steal the Kruger coins, and that therefore Investgold through Hugo,
never had any intention to deliver the Kruger coins to Uys and Troskie. The trial court held

that in the circumstances, Investgold was liable to Uys and Troskie for delivery of the Kruger
coins.
The SCA found that this was a cash sale. It found further that as the purchase price had been
paid, when Investgold’s stock controller (Davids) handed the Kruger coins to Uys delivery
took place. The SCA held further that, when Uys took the Kruger coins to Knox’s Vault after
he had received them, he was exercising his unfettered right as the owner. In essence, the
SCA held that Uys had control over the Kruger coins and that Investgold can therefore not be
held liable for their subsequent theft from Knox’s Vault. Consequently, the appeal was upheld
with costs.

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