Köster v Norval

The respondent, Archibald Norval, sold his entire interest in Flexivest 6 (Pty) Ltd to the appellant, Ralph Werner Köster, through two agreements concluded on 18 February 2004. One agreement concerned the sale of all shares in Flexivest for R6.5 million, which was duly paid and implemented. The second agreement concerned the sale of game situated on Flexivest’s farm for R2 million, payable five years later without interest. The respondent was not the owner of the game, but the game remained on the farm and at the appellant’s disposal. After the five-year period expired, the appellant refused to pay the R2 million purchase price for the game, leading the respondent to institute action in the High Court.

The appeal was dismissed with costs, and the High Court’s order requiring the appellant to pay R2 million plus mora interest and costs was upheld.

The case reaffirms a fundamental principle of South African sale law: a sale by a non-owner is valid, and the seller is not obliged to transfer ownership but only to deliver vacua possessio and warrant against eviction. It clarifies the distinction between implied and tacit terms and confirms that tacit terms cannot contradict established legal principles or express contractual provisions.