JA Stassen-Sheriff of the High Court, Bellville v De Ville Cabinet Component CC

• Jurisdiction: South Africa
• Judge: Dlodlo J
• Judgment Date: 09 May 2014
• Docket Number: 16118/2012
• Court: Western Cape High Court, Cape Town
• Hearing Date: 15 April 2014
• Citation: 2014 JDR 0955 (WCC)

Dlodlo, J

INTRODUCTION

[1]

The First Claimant obtained a default judgment against the First Respondent. Pursuant to the said judgment the Sheriff of the Court armed with the necessary writ of execution attached several movable assets at the premises of the First Respondent situated at 40 Willow Road, Stikland. The Second Claimant thereafter made a claim that he is in fact the owner of all the attached movable assets. Acting in terms of the provisions of Rule 58 the Applicant (Sheriff of the Court) issued these proceedings known as interpleader proceedings. Rule 58 provides as follows:

"58 (1) Where any person, in this rule called 'the applicant', alleges that he is under any liability in respect of which he is or

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expects to be sued by two or more parties making adverse claims, in this rule referred to as 'the claimants', in respect thereto, the applicant may deliver a notice, in terms of this rule called an 'interpleader notice', to the claimant. In regard to conflicting claims with respect to property attached in execution, the Sheriff shall have the rights of an applicant and an execution creditor shall have the rights of a claimant.

(2) (a) Where the claims relate to money the applicant shall be required, on delivering the notice mentioned in sub-rule (1) hereof, to pay the money to the registrar who shall hold it until the conflicting claims have been decided.

(b) Where the claims relate to a thing capable of delivery the applicant shall tender the subject-matter to the registrar when delivering the interpleader notice or take such steps to secure the availability of the thing in question as the registrar may direct."

[2]

In casu according to the papers filed in this matter the assets attached are kept under lock and key in the very premises in which the attachment took place. Each claimant must file particulars of claim. Importantly, the content of these particulars always depends on the nature of the claim. Needless to mention that the purpose of the statement is to acquaint the opponent with the tenor of the case so that he or she can decide whether to oppose the claim. There is no need that a claimant in the proceedings like these sets out the claim with precision which is normally required of a pleading.

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SCHEDULE OF ATTACHED ASSETS

[3]

The movable assets attached the ownership of which is contested are the following:

1 x Griggio Table Saw

1 x Speedy 201 NC Drill

1 x Edgebonder

1 x SCM Table Saw

1 x Spindle

1 x Dikte Plane

1 x Vlak Plane

1 x 6 Sak vacuum Cleaner

1 x 3 Sak vacuum Cleaner

1 x 2 Sak vacuum Cleaner

1 x Overhead Router

1 x Metal Storage racks

1 x De Walt Arm Saw

7 x Work benches

1 x Spray Room (Fixture)

Toshiba Copy & Fax Machine

2 x Office Desks

1 x PC Complete

18 x Wood Clamps

1 x Cannon Printer

THE LEGAL PRINCIPLE AND THE QUESTION OF ONUS

[4]

The law in this regard is set out in Zandberg v Van Zyl 1910 AD at 302. In short and according to the afore-going authority there is a rebuttable presumption in our law that a person in whose possession assets are found

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is assumed to be the owner of such assets. Describing the above the court in Zandberg v Van Zyl supra reasoned as follows:

"I quite agree with Mr Justice Hopley that the reasons for the judgment of the majority of the Court in Fivaz v Boswell are by no means satisfactorily founded, as they are on English cases, which again are founded on English statute law. The principle, however, underlying the decision in that case appears to me quite in accord with our law, namely, that possession of a movable raises a presumption of ownership; and that therefore a claimant in an interpleader suit claiming the ownership on the ground that he has bought such movable from a person whom he has allowed to retain possession of it must rebut that presumption by clear and satisfactory evidence. The fact that he has bought a thing which does not require himself, but allows the seller to use, requires full explanation, and in the absence of such explanation a Court is justified in drawing its own reasonable inferences. …..Voet (18, 3, 7 and 8) refers to the pactum de retrovendendo, by virtue of which it is agreed that the seller shall have the right to re-purchase a thing sold by him for the same price which he has received as being a usual legal pact; but Voet appears to assume that, until the exercise of such right, the thing would be in the possession of the original purchaser. If the thing is allowed to remain in the possession of the seller, and it is manifest that the real object of the parties was not to transfer the ownership to the purchaser, but to secure the payment to him of a debt owing to him by the seller, the obvious conclusion is that the intention of the parties was to effect a pledge, and not a sale."

[5]

The essence of the above is simply that possession of a movable raises a presumption of ownership, and therefore a person claiming the ownership in an interpleader suit, on the ground that he bought such movable from the person whom he has allowed to remain in possession of it, must rebut

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the presumption by clear and satisfactory evidence. Accordingly Mr Smit is correct in starting his submission as follows:

"'n Weerlegbare vermoede in ons reg bestaan dat die persoon wat in besit van goedere is, word geag die eienaar van daardie goedere te wees. In hierdie geval was die Tweede aanspraakmaker wel in besit van die goedere ten tyde van die beslaglegging daarvan deur die Applikant. Hierdie vermoede is wel weerlegbaar indien die ware eienaar voldoende bewyse kan toon dat die goedere wel aan hom/haar behoort."

[6]

Amler's Precedents of Pleadings (7th edition) has the following exposition of law in this regard:

"ONUS: A party who relies on ownership in an object must allege and prove the right of ownership.

MOVABLES: Transfer of ownership of corporeal movable property requires delivery – the transfer of possession of the property by the owner to the transferee-coupled with a real agreement between the parties. The constituent elements of a real agreement are the intention of the owner to transfer ownership and the intention of the transferee to acquire it. Legator McKenna Inc v Shea [2009] 2 ALL SA 45 (SCA). …………………………..

POSSESSION: Reliance may be placed on the factual presumption of ownership arising from possession. Zandberg v Van Zyl 1910 AD 302; Ruskin v Thiergen [1962] 3 ALL 466 (A), 1962 (3) SA 737 (A); Hefer v Van Greuning 1979 (4) SA 952 (A) 959.

Unless the matter is raised by the other party on the pleadings, a purchaser who has received delivery need not prove that a predecessor in title was a true owner or that ownership was acquired from a true owner.

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Concor Construction (Cape) Pty Ltd v Santambank Ltd [1993] 2 ALL SA 496 (A), 1993 (3) SA 930 (A) 937".

THE EVIDENCE (BY THE SECOND CLAIMANT)

[7]

Mr Gabriël De Villiers (hereinafter called "the Second Claimant") testified that he was the sole proprietor of a business called Shopfit during 1975 to about 1996, a business which was started from his home garage. Since about 1996, the same business started to trade under the name and style of De Ville until such time as the business was taken over by Francois, his son. Prior to the take-over of the business, the Second Claimant had purchased several tools of trade and manufactured some assets himself. The majority of these are now the subject of this dispute. The Second Claimant is the owner of the business premises situated at 40 Willow Road, Stikland. Prior to the take-over of the business, the business was run from the larger section of the premises, but...