This is a question which the Supreme Court of Appeal had to answer in the matter between Ralph Werner Köster ("Köster") vs. Archibald Norval ("Norval") – Case Number 20609/2014.

The facts of the matter were:

Norval entered into two sale agreements in terms of which he sold all the issued shares in Flexivest 6 (Pty) Ltd that owned land, game and farming equipment.  The first sale agreement recorded the assets of Flexivest 6 (Pty) Ltd as consisting of property (farmlands and equipment).

A separate agreement ("the second agreement") was entered into in terms of which Norval sold Köster the game listed in the annexure to the agreement for the sum of R2 000 000,00.  The second agreement provided that the purchase price in respect of the game was payable five years after the date of the agreement.  Five years later, Köster refused to pay Norval the purchase price of R2 000 000.00 in respect of the game raising the defence that Norval was not the ower of the game.  The Court rejected this defence.  The Court cited with authority the proposition by GRJ Hackwill, Mackeurtan's Sale of Good in South Africa 5th ed which states:

"As has been indicated elsewhere, although the parties to a contract of sale usually contemplate a transfer of ownership in the thing sold, this is not an essential feature of the contract, and sales by non-owners are quite permissible.  The delivery required of a seller is the delivery of undisturbed possession (vacua possesio) coupled with the guarantee against eviction.  It is not necessary that the seller should pass the ownership, for the implied engagement of the seller is a warranty against eviction and not a warranty of title, but he must divest himself of all his proprietary rights in the thing sold in favour of the purchaser."

In essence therefore, the above case reiterates the legal principle that "it is not a requirement for a valid contract of sale that the seller must be the owner of the thing sold".  I must, however, hasten to add that in terms of Section 16 of the Deeds Registries Act 47 of 1957, transfer of ownership in respect of an immovable property takes place when the transfer is registered in the Deeds Office.