Bornman v Karan Beef; In Re: Sheriff of the High Court, Theunissen v Karan Beef and Another (1899/2020) [2020] ZAFSHC 195 (22 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No. 1899/2020

In the matter between:

JAN FREDERICK BORNMAN Plaintiff and KARAN BEEF Defendant In re: THE SHERIFF OF THE HIGH COURT, THEUNISSEN Applicant and KARAN BEEF 1st Claimant JAN FREDERICK BORNMAN 2nd Claimant

CORAM: DAFFUE J

HEARD ON: 19 OCTOBER 2020

JUDGMENT BY: DAFFUE J

DELIVERED ON: 22 OCTOBER 2020

[1] On 5 November 2018 a settlement agreement entered into between Karan Beef Feedlot (Karan Beef) and Geduld Boerdery, Mrs Mandie Dippenaar and Mr Olivier Dippenaar was made an order of court in the High Court of South Africa, Eastern Cape Division held at Grahamstown under case no: 4350/2014. In terms of the agreement Geduld Boerdery and the Dippenaars acknowledged being indebted to Karan Beef in the amount of R550 000.00 together with interest.

[2] Karan Beef issued a writ of execution in terms whereof the Sheriff on 21 November 2019 attached game found on the farm described as Portion 5, Farm Groenvallei 114, Jacobsdal RD, Free State Province , to wit:

1. 50 Springbok;

2. 30 Wildebeest;

3. 2 Lions;

4. 12 Sables;

5. 15 Blesbok;

6. 11 Lechwes; and

7. 3 Nyalas.

[3] On 3 February 2020 Mr Jan Frederick Bornman deposed to an affidavit which was presented to the sheriff. In terms thereof Mr Bornman alleges that he is the owner of the aforesaid game in that he has entered into an agreement with the trustees of the Geduld Boerdery Trust IT325/2008 in terms whereof he purchased the game. He continues to state the following in paragraph 7 of the affidavit:

“As per this agreement I also agreed to supply a “feed grower” to the value of R650 000.00 (six hundred and fifty thousand rand), currently on the farm, to assist with feeding during the drought.” (emphasis added)

The Sheriff was invited to institute interpleader proceedings upon receipt of the affidavit.

[4] The Sheriff did indeed institute interpleader proceedings under case 1899/2020. Karan Beef filed its particulars of claim in terms of rule 58 but to date Mr Bornman has failed to comply with the rule.

[5] When the matter came before Reinders J on 31 July 2020 she postponed the matter to the pre-trial roll of 24 August 2020 and ordered Mr Bornman to be the plaintiff and Karan Beef the defendant “in the trial”.

[6] The matter initially came on the pre-trial roll before Majosi AJ on 24 August 2020, but was postponed to 14 September 2020. On that day Naidoo J postponed the matter to 28 September 2020.

[7] On 28 September 2020 I directed the pre-trial conference to reconvene before me on 2 October 2020 and Mr Bornman to file his particulars of claim in terms of rule 58 forthwith. The wasted costs were reserved. By 2 October 2020 Mr Bornman has yet to file his particulars of claim. I directed oral evidence to be led in respect of all disputes emanating from the Sheriff’s

interpleader notice. The following further directives were issued:

“1. Mr Jan Frederick Bornman, directed to be the plaintiff by Reinders J, he having failed to adhere to my directive of 28 September 2020 to file his particulars of claim provided for in rule 58, is hereby provided a final opportunity to do so by not later than 12 October 2020, failing which his claim may be dismissed on 19 October 2020.

2. The matter is postponed to 19 October 2020 at 12h00 for the hearing of oral evidence and any party or witness called upon to testify must present to the court all documentary evidence relied upon to prove his, her or its case.

3. Mr Bornman is called upon to advance reasons on 19 October 2020 why he shall not be ordered to pay the wasted costs of the pre-trial conferences of 28 September and 2 October 2020.”

[8] On 19 October 2020 Mr Bornman testified under oath and elected not to call any witnesses. No evidence was led on behalf of Karan Beef.

[9] I repeat that ex facie Mr Bornman’s affidavit he purchased the game. I shall return in a moment to his oral evidence, but wish to state that the three essentialia of a contract of sale are the following, to wit (a) that one person is to sell and the other to buy (b) a defined and ascertained or ascertainable thing (c) at a fixed or fixable price in money.

See: Wille’s Principles of South African Law, 9th ed p 889.

[10] Mr Bornman’s evidence confused me to put it mildly. He started off by stating that he purchased 350 Merino sheep during 2017 from the Geduld Trust, represented by Mrs Mandie Dippenaar, at a purchase price of R342 000.00. Immediately thereafter he had to concede, after perusing his cellphone records, that he actually purchased 130 ewes, 2 rams and 37 lambs. The total is 169, a far cry from 350. On his version he paid the full purchase price although in instalments as his funds became available.

Although he communicated with Mrs Mandie Dippenaar, he testified that the transaction pertaining to the sheep was entered into with the Geduld Trust, the entity that invoiced him.

[11] During his testimony he indicated that “ek vat van die bokke vorentoe – my gedeelte – en my waarborg is die “feed-grower”.” His evidence was so confusing that I had to remind him that in order to prove a purchase and sale agreement, he had to explain who the parties thereto were, when the transaction was entered into, in respect of which goods and at what price. After re-examination I still had to remind the witness that he has yet to answer the questions put to him by me during his examination-in-chief.

[12] Mr Bornman is an experienced businessman, he being the sole owner of an optic fibre business with offices in Cape Town, Bloemfontein and Johannesburg. He is also a part-time farmer. He explained the purchase and sale of the sheep; yet he was extremely vague pertaining to the transaction entered into between him and Mandie and/or Geduld Trust pertaining to the game.

[13] It is evident from his testimony that the Dippenaars and Geduld Trust were in financial difficulties and wanted to borrow money from the witness. According to him they entered into certain exchange transactions, but again his evidence is extremely vague. His version is that the game started to die as a result of the drought. When he removed the sheep he had purchased a few months earlier from the immovable property of the Geduld Trust, he left the feed grower on the farm in order to feed the game.

[14] At a stage he indicated that the feed grower served as security for the game. This did not make sense initially, but can perhaps be explained with reference to a later answer. According to the witness there was an agreement that if he could find purchasers for the more expensive game like the Nyalas, Sables and Lechwes, but the purchasers fail to pay, his feed grower would serve as security in respect of the outstanding purchase price. If Mr Bornman obtained ownership of the game earlier, there was no reason for the feed grower to serve as security. In such an event he as owner would be responsible to obtain payment from third parties for his own account in respect of the purchase price of the game and it could not have any bearing on the rights of the Trust or the Dippenaars. The evidence is more than likely indicative of a scenario where the witness, acting as agent for the owners of the game, remained responsible to settle the purchase price even in the event of the third party purchasers failing to pay. They, i.e. Geduld Trust or the Dippenaars, would be entitled to keep the feed grower as security until they receive what is due to them.

[15] There is an aged-old saying that “possession is nine points of the law.” I accept that this is perhaps not a principle of law insofar as thieves are often find in possession of stolen property and unlawful

occupiers are often found in possession of immovable property. However, the following is stated in Law of Evidence, the loose-leaf edition by LexisNexis at p 5–18:

“It is presumed that the possessor of movable property is its owner, and the person who claims the thing from a possessor on the ground of his ownership bears the burden of proof.” See also Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A) at 615 H.

[16] The game were in possession of the Trust and/or the Dippenaars as execution debtors when attached by the Sheriff. Mr Bornman bore the full onus to prove his case. See also the commentary of Van Loggerenberg, Erasmus: Superior Court Practice, 2nd ed at D1–731 with reference to inter alia Zandberg v Van Zyl 1910 AD 302 at 308 and Gleneagles Farm Dairy v Schoombee 1949 (1) SA 830 (A) at 836 and I quote:

“The reasoning in the cases in which the onus of proof has been considered seems to indicate that, when the sheriff interpleads, the claimant ought to be made plaintiff it the goods at the moment of seizure were in the judgment debtor’s possession, because his possession implies a prima facie title in him which enures to the benefit of the execution creditor; but if the goods at the moment of seizure were in the claimant’s

possession, he would have the prima facie title, which the execution creditor would have to displace, and so the execution creditor ought to be the plaintiff.”

[17] Having considered the evidence before the court I am satisfied that Mr Bornman has failed to prove ownership of the game attached by the Sheriff. He did not purchase the game and did not pay any monies to the sellers and owners thereof. Insofar as he tried to rely on barter or exchange contrary to his affidavit referred to, he also failed to make out a case.

[18] Consequently the following orders are made:

1. It is declared that ownership of the game attached by the Sheriff on 21 November 2019 at the immovable property described as Portion 5 of the farm Groenvallei 114, Jacobsdal RD vests in the judgment debtors Geduld Boerdery Trust and/or Mrs Mandie Dippenaar and/or Mr Olivier Dippenaar:

2. Mr Bornman as plaintiff in the interpleader proceedings is ordered to pay the costs of the application, including the costs of the Sheriff and the judgment creditor, Karan Beef, as well as all costs previously reserved.

__________________

J P DAFFUE J

On behalf of Plaintiff: Mr Mokhele

Instructed by: MOKHELE INC

BLOEMFONTEIN

On behalf of Defendant: Adv FF Jacobs

Instructed by: NOORDMANS ATTORNEYS