Sheriff of the High Court Pretoria South East v Attfund Ltd and Others (12705/2006) [2007] ZAGPHC 236 (12 October 2007)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

12/10/07 NOT REPORTABLE CASE NO: 12705/2006

THE SHERRIF OF THE HIGH COURT:

PRETORIA SOUTH EAST APPLICANT

In the matter between:

And

-­

/

ATTFUND LTD

1ST CLAIMANT/ CREDITOR

CREDITOR

AGATHA GERTRUIDA IMMELMAN JACQUES HUMAN

2ND CLAIMANT

3RD CLAIMANT

JUDGMENT

SHONGWE, DJP

1.

This matter has rather a long history, however, seeing that the parties

are agreed on most of the factual issues, I shall not venture into the

past but shall venture into the future. The crux of the matter is that

the first claimant obtained judgment against Human Wellness Clinic CC

and proceeded to execute the judgment by attaching certain movable

property on 25 April 2006. The second and third claimants now claim

ownership and/or some entitlement to the attached goods. Hence the

applicant being the sheriff of Pretoria South-East instituted interpleader

proceeding in terms of Rule 58 of the Rules of Court.

2.

2

It is common cause that the attached goods are the ones identified

and tabulated on the document marked "Exhibit A Identification of the

Rented Assets - Equipment and office furniture" appearing on page 33

of the bundle. The document appearing on page 34 of the bundle

being an instalment sale agreement between ABSA Bank Ltd and the

second claimant is also alleged by the second claimant to demonstrate

proof that she purchased the Oxy Megastation machine which is part of

the goods attached.

3.

Although there is a third claimant, she did not appear in court on

20 September 2007 on which day the matter had been set down,

notwithstanding the fact that she did file her claim in terms of Rule 58.

4.

On 6 September 2006 when the matter was before court,

DU PLESSIS J referred the matter to oral evidence 'for the

determination of the questions that the counsel has read into the

record' (sic) and reserved costs.

5.

On 20 September 2007 the parties addressed the court with their

opening addresses. It became crystal clear that the second claimant

bore the onus and also that she had to start. It also became clear that

the question that the court had to determine is whether or not the

second claimant is or was the owner of the attached goods

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alternatively whether she was the titleholder of the 0xy Megastation

machine which was still subject to the instalment sale agreement with

ABSA.

6.

Mrs Immelman gave evidence and confirmed that she was the second

claimant. She confirmed that on 5 January 2005 she concluded an

agreement of lease between her and Human Wellness Clinic CC

appearing on page 37 of the bundle. It would appear that the terms

and conditions of the said lease agreement are not in dispute. She

testified that the property appearing on page 41 of the bundle belongs

to her. She used to use the goods while she was in Britz some 10-12

years ago. She did not have any proof of purchase of the goods. She

also testified that she purchased the 0xy Megastation through an

instalment sale agreement with ABSA appearing on page 34 of the

bundle. Under cross-examination it was brought to her attention that

the serial number appearing on the instalment sale agreement differs

from the one appearing on the sheriff's attachment papers.

She

insisted that the 0xy Megastation machine was hers and tried to

explain the discrepancy on the serial number, however, she was

interrupted as she was about to give hearsay evidence. She conceded

that the serial numbers differ. She confirmed that she informed the

sheriff before he could attach the goods that she was the owner and

that the goods did not belong to Human Wellness Clinic CC. She even

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called her attorney, Ms Mitchell, who also testified that she spoke to

the sheriff over the phone on the very same day of the attachment.

7.

The evidence of Ms Mitchell, the second claimant's attorney is short

and to the effect that she did speak to the sheriff and pleaded with him

not to attach the goods as they belonged to her client.

She

subsequently forwarded a copy of the instalment sale agreement to the

sheriff as proof that her client owned or had a title to the machine.

She also informed ABSA of the attachment but ABSA did not join issue

with the sheriff or the first claimant instead request her to inform them

of the developments.

8.

Mr Wilkens is employed by 'Youth Beauty Lasers', the sole distributors

of the 0xy Megastation machine in South Africa. He confirmed that the

second claimant purchased the machine from them and that he

installed the machine. He also confirmed that he was called to remove

the machine and is satisfied that it is the same machine that he

installed. He explained that ABSA was given a serial number appearing

on a pro forma Invoice which is different form the serial number

appearing on the final tax invoice which is issued after the loan

application has been approved. From his evidence it is clear that the

0xy Megastation machine in question is the same machine he installed

at the second claimant's premises and also that it is the same machine

that he removed.

He even checked the serial number on

9.

10.

11.

5

20 September 2007, the day before he came to testify and was

satisfied that it is the same serial number.

The first claimant did not lead evidence at all.

The court must

determine the matter on the evidence before it whether or not the

second claimant has succeeded to prove on a balance of probabilities

that she is the owner of the attached goods, alternatively whether she

has a right of entitlement to the Oxy Megastation machine.

With regard to the goods appearing on "Exhibit A" marked equipment

and office furniture, I am satisfied that the goods belong to the second

claimant, Mrs Immelman. The evidence she led is uncontroverted that

she bought the goods 10-12 years ago, even though she does not

have any proof of purchase at this stage. It is reasonably acceptable

that she does not have the receipts or invoices for the goods because

the goods were purchased a long time ago. More so it was in Britz

where she bought and used the goods before she moved over to

Pretoria.

The first claimant claims the goods on the basis of the attachment by

the sheriff. No evidence to the contrary was tendered by the first

claimant to gainsay the second claimant's evidence.

The third

claimant, as I have indicated earlier, did not attend court to present

12.

13.

6

her case, therefore in effect there is no evidence to dispute that of the

second claimant.

The matter gets a little tricky when it comes to the Oxy Megastation

machine. I have no doubt that she purchased the machine through an

instalment sale agreement with ABSA. The fact that there are two

different serial numbers was explained by Mr Wilkens who is employed

by Youth Beauty Lasers and who actually installed the machine. His

evidence is undisputed.

He said the serial number used on the

Pro forma Invoice is for import purposes and when the machine is

delivered the real serial number is written on the tax invoice. The

question whether or not their method of doing things is legal is not

before court. In my view he satisfactorily explained the discrepancy.

It may be well so that ABSA bank retained ownership of the machine,

however, the second claimant as the titleholder has a right to be in

possession of the machine and can in law claim protection against third

parties.

The first claimant conceded that they are not relying on the tacit

hypothec. It is argued by the second claimant in any event that the

right of tacit hypothec terminated when the sheriff was informed

immediately he came to attach the goods, that the machine belonged

to the second claimant. The second claimant relied on the case of

Eight Kaya Sands v Valley Irrigation Equipment 2003 (2) SA

14.

15.

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495 where it was said that as soon as the third party (in this case

second claimant) makes his ownership of the goods known to the

landlord, the legal relationship changes. There is no legal obligation

between the third party as owner and the landlord as creditor of the

tenant: In the present case there is no evidence that the landlord was

informed of the ownership of the goods by the second claimant,

however, the sheriff and the first claimant's attorney were also

informed. In my view nothing turns on this point seeing that the first

claimant did not rely on the tacit hypothec.

The first claimant's

contention is that the second claimant must prove on a balance of

probabilities that she owns the property or has a title over the

machine.

I am satisfied, despite the serial number discrepancy which was

satisfactorily explained by Mr Wilkens, that the second claimant has

succeeded on a balance of probabilities that she has a title on the Oxy

Megastation and therefore her right of entitlement must be protected.

In my view the second claimant did all that can reasonably be

expected of her in her position to see to it that her intimation comes to

the knowledge of the lessor or his agent being the sheriff and his

attorney in this case.

I do not think that the question of rectification is relevant in this case

because there is no allegation of an error regarding the serial numbers.

16.

17.

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The second claimant led evidence through Mr Wilkens to explain the

discrepancy therefore rectification is not necessary. Even if ABSA has

not been joined the second claimant relied alternatively on her right of

title to the machine based on the instalment sale agreement. Had she

relied on the ownership thereof alone, she would have had a problem

without joining ABSA.

Consequently I find that the second claimant succeeded in proving on

a balance of probabilities that she is a title holder on the Oxy

Megastation machine as well as the other movable goods attached.

As a result the following order is made:

(a)

The second claimant's claim succeeds with costs.

(b)

The third claimant's claim is dismissed with costs.

(c)

The third claimant is ordered to pay half of the costs incurred by

the first claimant inclusive of half of the costs of the application

and half of the costs for storage.

(d)

The applicant is entitled to his costs of the application inclusive

of the costs for storage.

(e)

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The first claimant and the third claimant are ordered to pay the

full costs of the second claimant.

J B SHONGWE JUDGE OF THE HIGH COURT