Bowas v Mohammed

On 5 October 2020, the Fadiel Bowas Family Trust, represented by the appellant (Fadiel Bowas), entered into a written sale agreement with Grassy Park Pets (Pty) Ltd, represented by the respondent (Shanawaz Mohammed), for the sale of an immovable property for R4.1 million. The property was sold with all fixtures and permanent fittings, except for a Gaggenau oven which was to be removed and replaced with a new oven. On 12 November 2020, after the first agreement was signed but before transfer, the appellant and respondent entered into a second sale agreement in their personal capacities for the sale of certain movable assets (pool heater, air conditioners, stove and ovens, camera system, Jojo tank, wellpoint motors, curtains, and animal cages) for R500,000, payable in monthly instalments of R25,000. The respondent made four payments totalling R100,000 and then stopped paying. The appellant demanded the balance of R400,000. The respondent defended the claim, asserting that the appellant was not the owner of the goods, which formed part of the fixtures and fittings of the immovable property already sold by the Trust to the company.

• Whether the appellant discharged the onus of proving that he was the owner of the movable assets sold to the respondent.
• Whether the appellant could lawfully sell movable assets that formed part of the fixtures and fittings of the immovable property already sold by the Fadiel Bowas Family Trust.
• Whether the trial court erred in considering the first sale agreement (immovable property) when it involved different legal entities.
• Whether the appellant delivered undisturbed possession (vacua possessio) of the movable assets to the respondent.
• Whether the second agreement was void ab initio due to the appellant's lack of ownership and inability to deliver possession.

The appeal is dismissed, and no order is made regarding costs.

A party claiming on a contract bears the onus to prove all terms of the contract, including ownership of the goods sold and delivery of vacant possession. Where a respondent's plea contains a denial of an essential element of the plaintiff's cause of action (such as ownership of the merx), the plaintiff must prove that element on a preponderance of probabilities. In determining whether a seller has discharged this onus, a court may consider a prior related agreement even if it was concluded between different legal entities, where the prior agreement is relevant to establishing the true ownership of the goods in question. The parol evidence rule remains of application and requires that where a contract has been reduced to writing, no extraneous evidence may be given to contradict, alter, add to or vary its terms.

The court noted that sales by non-owners are permissible in South African law, but emphasised that a seller must deliver undisturbed possession coupled with a guarantee against eviction. The court also observed that performance by one or both parties to an illegal or void contract does not make the contract legal, referencing the ex turpi causa rule.

This case reinforces the application of the parol evidence rule in South African contract law and confirms the principle that a party alleging a contract must prove all its terms, including ownership of the goods sold. It illustrates the consequences of a seller failing to discharge the onus of proving ownership when the respondent's plea raises a denial of ownership. The judgment also affirms that courts may consider related agreements between different legal entities when necessary to determine the true ownership of disputed assets and whether the seller could deliver vacua possessio.