Mahomed v Karim and Others

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: Hathorn JP and Broome J
• Judgment Date: 10 June 1948
• Citation: 1948 (3) SA 626 (N)
• Hearing Date: 10 June 1948

Broome, J.:

This is an appeal from the judgment of a magistrate in an interpleader action. I shall refer to the parties as the judgment creditor, the judgment debtor and the claimant respectively, the claimant being the appellant. The judgment creditor obtained his judgment in January, 1946. In January, 1948, the messenger of the court, under a writ of execution issued in terms of the above judgment, attached the stock-in-trade of the judgment debtor in his shop. The claimant held a duly

Broome J

registered special notarial bond over this stock-in-trade and the interpleader summons was issued by the messenger at his instance. At the hearing the notarial bond, which was passed and registered in 1945, was exhibited and admitted but no evidence was led. The magistrate dismissed the summons and made the following order:

'Applicant having failed to establish ownership in the stock in trade which has been attached by the messenger of court the interpleader summons is dismissed with costs. The court desires to make it clear that the preference created by the notarial bond is not affected by this judgment although the court holds that the stock in trade is the property of the judgment debtor.'

The claimant appeals against this judgment on the following grounds:

'(1) In view of the provisions of sections 2 and 3 of Act No. 18 of 1932, the magistrate erred in holding that the goods, which were subject to the notarial bond in favour of the claimant, could be attached by the messenger of the court at the instance of the judgment creditor.

(2) The magistrate should have found in favour of the...