Zandberg v Van Zyl

• Jurisdiction: South Africa
• Judge: Hopley J, Lord De Villiers CJ, Solomon J and Innes J
• Judgment Date: 08 December 1910
• Citation: 1910 AD 302
• Hearing Date: 29 November 1910
• Court: Appellate Division

Lord De Villiers, C.J.:

I regret that I cannot agree with Mr. Justice HOPLEY in the view that the Magistrate, who heard this interpleader suit, erred in holding that the wagon attached by the Messenger of the Court was liable to execution at the suit of the judgment creditor. The Messenger found the wagon in the apparent possession of the judgment debtor. It is true that the wagon stood on land belonging to the claimant, but it had been given by him to the debtor, who was his mother-in-law, to protect the tent in which she was living, about 300 yards from his residence, and it was at her disposal whenever she chose to use it. It would appear that the claimant was also entitled to use the wagon, and that he did occasionally use it, but, according to his own evidence, he returned it to the judgment debtor after each trip. "As a matter of fact," he added, "I only had the wagon in my possession when I used it for transport." At the time when the attachment took place he was not so using it, and the Messenger was justified in treating the wagon as if it belonged to the debtor, in whose apparent possession it was. She stated at the time that it was the property of the claimant, and in support of her statement I produced her promissory note for £50, dated the 14th of March, 1906, in favour of the claimant, on the face of which he had signed a receipt in the following terms: "Settled by means of a wagon, Leeuwkop, 16-10-1907." The Messenger, however, was not satisfied with the genuineness of the receipt, and he was justified in attaching the wagon and leaving it to the claimant to make good his claim in an interpleader suit. Such a suit having been instituted, the Magistrate held that the transaction between the claimant and his mother-in-law was really in the nature of a pledge, and not of a sale, and that, as the claimant had parted with the possession of the wagon, the execution creditor was entitled, by virtue of his pignus praetorium, to preference in respect of the proceeds of the wagon. It is admitted that such a preference would exist in the case of a pledge, and the real question to be decided is whether the Magistrate was

Lord De Villiers, C.J.

clearly wrong in holding that a pledge, and not a sale, had been intended by the parties.

Mr. Jones, who argued the case very ably and fairly on behalf of the claimant, did not deny that the burthen of proving a bona fide sale lay upon the claimant. There is much force in his contention that the possession by the debtor of the promissory note, with the claimant's receipt written thereon, goes far to prove such a sale, but it is not necessarily conclusive. If it was a sale, and nothing but a sale, the obvious course would have been for him to hand back the promissory note and for her to destroy it without having a receipt written thereon. The claimant stated that his wife and mother-in-law were present when he signed the receipt, but he produced neither of them as his witness to prove that it was signed on the day mentioned therein. It cannot be supposed that he was unaware of the fact that judgment had been given against his mother-in-law, and, if he knew of it, he would have every motive to protect her in the certain event of execution issuing against her goods. When such execution did issue, she declared that the wagon belonged to her son-in-law, and the rest of the property attached to her own son and daughter. Before the Magistrate, in the interpleader suit, she gave no evidence. The claimant however, gave his evidence, and stated that he had bought the wagon from his mother-in-law, taking it, in settlement of the debt which she owed him, that the agreement was that she could re-purchase the wagon at the same price at any time, and could always use the wagon when she required it, that he only had the wagon in his possession when he used it for transport, and that, after each trip, he returned the wagon to his mother-in-law. The Magistrate, after hearing this evidence, came to the conclusion that the alleged sale was not intended to be a bona fide sale, but a means of securing to the claimant the money which his mother-in-law owed him. "Not only," said he, "was the sale not open and notorious" (see Fivaz v Boswell, 1 Searle, 235), "but the claimant also admits that it was agreed between Mrs. Van Zyl and himself that she could re-purchase the wagon at any time when she was in a position to do so" (see

Lord De Villiers, C.J.

Hofmeyr v Gous, 10 Juta, 116). 1 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 satisfactory, 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 he 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. It is quite true, as remarked by Mr. Justice HOPLEY, that 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 and 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. The case of Hofmeyr v Gous is only one of several cases in which the Cape Supreme. Court has treated such a transaction as a pledge, notwithstanding that the parties themselves have gone through the form of a sale. In the present case it may be fairly inferred, from the evidence of the claimant himself, that his object in making the alleged purchase was to secure the debt owing to him by his mother-in-law, and at the same, time to allow her to use the wagon as if it were her own. The circumstances are very similar to those disclosed in Hofmeyr v Gous, and as the Magistrate had

Innes, J.

the advantage, which this Court had not, of hearing and seeing the witnesses, I am not prepared to disturb his finding. The present appeal must, therefore, be allowed, with costs in this Court and in the Court below, and the judgment of the Magistrate's Court must be restored.

Judgment

Innes, J.:

This dispute turns upon the true nature of the transaction between the respondent and his mother-in-law in October, 1907. If the arrangement then come to was in law a sale, the...