Source:
South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to April 2024/1968/Volume 4: 1 207 (October)/UNDEREATER
CONSTRUCTION AND SALVAGE CO (PTY) LTD v BELL 1968 (4) SA 190 (C)
URL:
http://jutastat.juta.co.za/nxt/gateway.dll/salr/3/21490/21888/21919?f=templates$fn=default.htm
UNDEREATER CONSTRUCTION AND SALVAGE CO (PTY) LTD v BELL 1968 (4) SA 190 (C)
1968 (4) SA p190
Citation 1968 (4) SA 190 (C)
Court Cape Provincial Division
Judge Banks J
Heard February 22, 1968; February 23, 1968
Judgment March 26, 1968
Annotations Link to Case Annotations
Flynote : Sleutelwoorde
Ownership Res nullius How ownership acquired in Seizure of with intent to acquire ownership Sufficiency of.
Headnote : Kopnota
To acquire ownership of a res nullius it is not enough merely to see the thing or intend to acquire it: there must be a seizure of the thing with E
the intention of acquiring ownership thereof. Once there is a seizure made with such intention, ownership is acquired and it is not lost by a
failure to remain in physical possession.
Plaintiff and defendant both held salvage licences under section 12 of the Customs Act, 91 of 1964. On 14th March, 1967 employees of the
plaintiff loosened and separated four propeller blades from a wreck which was admittedly a res nullius. They took two of these ashore, left the
other two next to the wreck and marked the spot by tying a floating F rope to a shaft next to which the two blades were lying, intending to
take them ashore at a later date. Defendant, however, removed them first. Plaintiff sued for the delivery of these blades. Defendant resisted
the claim and counterclaimed for the delivery of the two blades in the plaintiff's possession on the ground that he had allegedly commenced
loosening and separating the blades prior to 14th March, 1967 and had lawfully taken possession thereof with the intention of becoming the
owner thereof. On the evidence the Court found that, although the G defendant had applied unsuccessfully for a blasting permit with a view to
blasting off the propellers and although other work had been done by him on the wreck prior to 14th March, 1967 no actual work had been done
by him on the wreck with a view to taking possession of the blades.
Held, as soon as the propeller blades had been blasted loose from the res nullius with a view to acquiring ownership of them, that there was a
sufficient seizure for the purpose of becoming owner by occupatio, even though they were not taken ashore but left lying next to the wreck. H
Case Information
Action for the return of certain propeller blades. Facts not material to this report have been omitted.
E. M. Grosskopf, for the plaintiff.
E.L. King, for the defendant.
Cur. adv. vult.
Postea (March 26th).
1968 (4) SA p191
BANKS, J.: Plaintiff company sues defendant for an order directing defendant to return two propeller blades to plaintiff.
In the particulars of claim plaintiff alleged that the wreck of the ship Hypatia, which lies off Robben Island, was at all material times a res A
nullius. On 14th March, 1967 Harold Maximilian Fuchs and Johan Rupert Statthaler, both employees of plaintiff and acting in the course of their
employment, loosened and separated four propeller blades from the wreck by means of blasting operations. Fuchs and Statthaler removed two
of the propeller blades to Cape Town and these blades are still in B plaintiff's possession. They fixed a marker in the form of a floating rope to a
shaft next to which the remaining two blades were lying. The particulars of claim continue:
'By means of their aforesaid conduct, the said divers took possession of the said four propeller blades with the intention of constituting plaintiff the owner
thereof,'
and that plaintiff is the owner thereof.
On 16th March, 1967 defendant went to the site of the wreck, C disconnected the marker and removed the remaining two propeller blades of
which defendant is still in unlawful possession.
In his plea defendant admitted that the wreck was a res nullius but stated that prior to 14th March, 1967 he had already commenced loosening
D and separating the said four blades and had lawfully taken possession thereof with the intention of becoming the owner thereof and was,
therefore, as at that date, the owner thereof. He admitted that on 17th March, 1967, (the date should be the 16th), he removed two of the
blades which are presently in his possession and contended that in the premises E he is not in unlawful possession thereof. Defendant admitted
that on 17th March, 1967, (again this should be 16th), there was a piece of blue rope attached to the propeller shaft but states that he had no
knowledge as to how the piece of rope came to be attached to the shaft. He asked that plaintiff's claim be dismissed and in reconvention
claimed an order F directing plaintiff to return the two blades in plaintiff's possession to defendant.
[The learned Judge then analysed the evidence and proceeded.]
Viewing the matter as a whole and taking into account the factors mentioned and in addition the further fact that the demeanour of both Fuchs
and Statthaler was far more satisfactory than that of defendant G and his brother, I find on a balance of probabilities that defendant and his
brother did not do any actual work on the Hypatia with a view to taking possession of the propeller blades. They had, of course, worked on the
ship on other occasions prior thereto but not with the object of removing the propeller blades. It appears that during March, 1967, H defendant
and his brother had also decided to take possession of the propeller blades by blasting them loose and to this end had applied for a permit to
blast from the Department of Fisheries. Whether this was necessary or not is irrelevant. Fuchs claims it was not. On 14th March, 1967 Fuchs
and Statthaler went out and blasted the propellers loose and took possession of two of the blades, thereby forestalling defendant. This caused
defendant considerable annoyance and defendant then went out and took the two remaining blades.
It is clear that, in the light of this finding, the claiminreconvention
© 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Apr 04 2024 21:03:46 GMT+0200 (South Africa Standard Time)
1968 (4) SA p192
blast from the Department of Fisheries. Whether this was necessary or not is irrelevant. Fuchs claims it was not. On 14th March, 1967 Fuchs
and Statthaler went out and blasted the propellers loose and took possession of two of the blades, thereby forestalling defendant. This caused
defendant considerable annoyance and defendant then went out and took the two remaining blades.
It is clear that, in the light of this finding, the claiminreconvention
1968 (4) SA p192
BANKS J
must fail, but Mr. King argued that even the acceptance of the evidence of Fuchs and Statthaler did not entitle the Court to find plaintiff had
become the owner of the two propeller blades of which defendant had A taken possession on 16th March, 1967. Indeed this was Mr. King's main
argument, even though he candidly admitted it would, if accepted, result in the dismissal of defendant's counterclaim. I proceed now to deal
with that argument.
Mr. King's argument, as I understand it, is that it was not sufficient for plaintiff (through its servants) merely to take possession of the B
propeller blades with the intention of becoming owner. Plaintiff should, so the argument ran, have remained in physical possession, and once
Fuchs and Statthaler left the two remaining propeller blades in the sea, they forfeited any rights they may have acquired in these two blades.
I reject that argument. It is common cause that the wreck of the Hypatia C had been abandoned by its owner and had become res derelicta ,
that plaintiff was duly licensed in terms of sec. 12 of Act 91 of 1964, and that it could acquire ownership of the wreck or a portion thereof.
Plaintiff's case is that it had acquired ownership by occupatio the seizure of the propeller blades with the intention of acquiring ownership.
D That ownership can be acquired in this manner is clear from the following authorities cited by Mr. Grosskopf, viz. Voet, 41.1.9 (Gane's
translation, vol. 6, p. 183); Huber, Hed. Recht, 2.3.15 (Gane's translation, vol. 1, p. 121); Savigny, Possession, pp. 169 171. While on the one
hand it is not sufficient if there is a mere 'seeing' of the thing claimed, ownership is acquired as soon as there is a seizure with E the intention
of becoming owner. Ownership, once acquired, cannot be lost by a failure to remain in physical possession.
I did not understand Mr. King to argue that there had not been a seizure of the two propeller blades, but even if he had, I would have rejected
F the argument. Fuchs and Statthaler had actually blasted all four blades loose from the wreck. Two of the blades were then hoisted on to the
Harold Cartwright and were conveyed to the docks. The other two the subject of the claim in convention would also have been similarly
dealt with had it not been so late, but the fact that they were not hoisted on to the ship does not mean that they had not been seized. G
There was a seizure a taking into possession as soon as they were forced apart from the wreck, and this having been done with the
intention of acquiring ownership rendered plaintiff the owner thereof.
Accordingly, the judgment is as follows:
(1) On the claim in convention judgment for plaintiff.
(2) On the claim in reconvention judgment for defendant in reconvention (plaintiff in the action).
H (3) Defendant is ordered to pay the costs, including the costs of the interdict proceedings, and the cost of transcribing those
portions of the evidence transcribed at the request of the Court.
Plaintiff's Attorneys: Fairbridge, Arderne & Lawton. Defendant's Attorneys: Herold, Gie & Broadhead.
© 2018 Juta and Company (Pty) Ltd. Downloaded : Thu Apr 04 2024 21:03:46 GMT+0200 (South Africa Standard Time)
