Sheriff of the High Court, Westonaria v Business Partners Limited and Another; In re: Business Partners Limited v Vision Tissue CC and Others (2016/25862) [2017] ZAGPJHC 423 (14 December 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2016/25862

Not reportable

Not of interest to other judges

Revised.

14 December 2017

In the matter between:

THE SHERIFF OF THE HIGH COURT, WESTONARIA Applicant

and

BUSINESS PARTNERS LIMITED First Claimant

POONEN: DASLIN Second Claimant

In re:

BUSINESS PARTNERS LIMITED Execution Creditor

VISION TISSUE CC First Execution Debtor

POONEN: DEVRAJ Second Execution Debtor

POONEN: JEEVA Third Execution Debtor

JUDGMENT

ADAMS J:

[1]. This is an interpleader action by the Sheriff of the Court, Westonaria, who attached certain movable property at the residence of the second and third execution debtors. The attachment was made in terms of a warrant of execution against movable property issued pursuant to a Judgment of this court dated the 27th October 2016 in favour of the execution creditor (also the first claimant in the interpleader proceedings) against all three execution

debtors jointly and severally. The second claimant, who is the son of the second and third execution debtors, claims that he is the owner of the attached goods, which claim the first claimant disputes vigorously.

[2]. Before me Mr Alli appeared on behalf of the first claimant and the second claimant appeared in person.

[3]. As indicated above, pursuant to the judgment of the 27th October 2016, the first claimant instructed the Sheriff (the applicant in these proceedings) to attach the property of second and

third execution debtors as their claim remained unpaid. The Sheriff duly attached movables to the value of approximately R47 600 at residential address of the second and third execution debtors. The warrant of execution against movable property was issued on the 17th November 2016, and the attachment was made on the 1st of December 2016.

[4]. In an affidavit dated the 10th of December 2016 the second claimant claimed that the attached property belongs to him and that the court order was granted against

his mother and his father. The execution creditor and first claimant (Business Partners Limited) dispute the second claimant’s claim and contends that the second claimant fabricated the story that he is the owner of the attached goods.

[5]. It therefore became apparent that there were competing claims pertaining to the attached property. The Sheriff therefore issued an interpleader summons, calling upon the claimants to deliver particulars of claim setting out their competing claims.

[6]. In its interpleader particulars of claim, the first claimant submits that the second claimant has not substantiated his ownership of the attached movable property. Without such substantiation, so the first claimant contends, the allegation of ownership is bald and sketchy and falls to be dismissed.

[7]. At the hearing of the interpleader proceedings, the second claimant testified under oath that he is the owner of the attached property, as listed in an ‘inventory’ prepared by the sheriff on the 1st December 2016. The movables listed in the sheriff’s inventory were the following: Silver Door by Door Fridge / Freezer; 3 piece black leather lounge suite & coffee table; white leather bar stools; Bosch microwave oven; Defy ‘Dishmaid’;

Samsung Flatscreen TV; TV stand; diningroom table & chairs & sideboard; 3 piece lounge suite & coffee table; Toshiba

Flatscreen TV & Sony Playstation; bedroom set complete; desk & chair & PC complete with printer; LG Mini Hi-FI; and Silver VW Golf with registration: FB 32 NV*GP.

[8]. The second claimant was adamant during his evidence – in – chief, as well as during cross – examination, that he is the owner of all of the aforesaid items, excepting the motor vehicle, which he alleged was a rented vehicle. His mother rented the vehicle from a car rental company. This is so despite the fact that he is at present only twenty two years old and still living with his parents at their home. He was not able to produce one piece of documentary proof that he is the owner of any one of these items. He confirmed that he is not able to produce any invoices, receipts or delivery notes in support of his claim that he purchased the property for himself. His explanation for this anomaly was that he purchased all of these items either on the ‘Gumtree’ website, which is a site where people can buy goods from others by making direct contact with each other, or from a ‘Chinese Shop’ near Gold Reef City. The Chinese Shop, so explained the second claimant, does business only on a cash basis and they never issue receipts and / or invoices. That is just how they operate. As for the ‘Gumtree’ transactions, the way business is done on that platform is that all transactions are on a cash basis and no receipts or invoices are issued, as the people contracting there are private individuals, and more often than not cash and the goods are exchanged with no paperwork.

[9]. Under cross – examination it was suggested to the second claimant that his version is improbable. The house is owned by his parents. He seemingly is a mere boarder there, and yet, so it was put to him, he would have the court believe that he owns all of the furniture in the house. The improbability in his version is furthermore accentuated by the fact he is not able to produce one iota of objective evidence, other than his ipse dixit, that he is indeed the owner. The second claimant’s unequivocal response to this criticism was that this state of affairs may seem unlikely, but was brought about by the fact that during 2016 his parents found themselves in dire financial straits, which compelled them to sell their furniture and electronic equipment, leaving the house near empty. The second claimant then incurred debts and bought the replacement goods. In that regard, he confirmed that he was indebted to the big banks to the tune of approximately R350 000. He offered to produce his bank statements in support of the aforegoing claim.

[10]. No evidence was led on behalf of the first claimant, who relied on what it perceived to be the inherent improbability in the second claimant’s version.

[11]. The issue which I am called upon to adjudicate in these proceedings, which is a factual one, is this: Is the second claimant the owner of the attached property as alleged by him?

The Law

[12]. The procedures relating to interpleader proceedings are dealt with and regulated for in Uniform Rule 58 of the High Court rules.

[13]. The dispute between the plaintiff and the defendant is a factual one.

[14]. I need to decide between two versions. The second claimant alleges that he is the owner of the attached goods. In support of his version the first claimant relies on his oral evidence. The first claimant, on the other hand, claims that the property is in fact owned by the parents of the second claimant, and the claim by the second claimant is a scheme aimed at depriving the first claimant of its right to execute against the attached property.

[15]. It must be decided whether, on all the evidence, the second claimant’s version is more probable than that of the first claimant.

[16]. In Stellenbosch Farmers' Winery Group Ltd and Another v Martell and Others, 2003 (1) SA 11 (SCA) at para 5, the Supreme Court of Appeal explained how a court should resolve factual disputes and ascertain, as far as possible, where the truth lies between conflicting factual assertions:

‘To come to a conclusion on the disputed issues a court must make findings on:

(a) the credibility of the various factual witnesses;

(b) their reliability; and

(c) the probability or improbability of each party's version on each of the disputed issues.

In light of the assessment of (a), (b) and (c), the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be a rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors equipoised probabilities prevail’.

[17]. Also in National Employers' General Insurance Co Ltd v Jager, 1984 (4) SA 437 (ECD), at 440D-441A the court remarked as follows:

‘It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff then the court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.

This view seems to me to be in general accordance with the views expressed by Coetzee J in Koster Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en Hawens (supra) and African Eagle Assurance Co Ltd v Cainer (supra). I would merely stress however that when in such circumstances one talks about a plaintiff having discharged the onus which rested upon him on a balance of probabilities one really means that the court is satisfied on a balance of probabilities that he was telling the truth and that his version was therefore acceptable. It does not seem to me to be desirable for a court first to consider the question of credibility of the witnesses as the trial judge did in the present case, and then, having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry. In fact, as l have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is had to an estimate of relative credibility apart from the probabilities’.

[18]. Also, in Govan v Skidmore, 1952 (1) SA 732 (N), the following principle was enunciated:

‘In finding facts or making inferences in a civil case, it seems to me that one may, as Wigmore conveys in his work on evidence … by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even though that conclusion may not be the only reasonable one.’

Applying the law in this matter

[19]. At first glance there appears to be merit in the assertion by the first claimant that the version of the second claimant should be rejected as highly improbable. However, on closer inspection the version of the second claimant is not as far – fetched as the first claimant would have the court believe. The undisputed evidence is that during 2016 the parents of the second claimant experienced financial difficulties, which forced them to sell off their furniture and electronic equipment in the house. Their son was then required to help out and step in, and that is what he did. This version to me does not seem so unnatural and artificial that it can and should be regarded as inherently improbable.

[20]. Importantly, one should not lose sight of the fact that the second claimant gave his evidence under oath and he was adamant that he is the owner of the property. There is no evidence to gainsay the second claimant’s assertion, and it cannot possibly be said that his evidence was of such a poor quality that it can be rejected out of hand. On the contrary, as I have indicated above, all things considered, the version has a plausible explanation for what may very well be an unnatural account. I find his version to accord with the probabilities. The parents found themselves in financial difficulties and called upon their son to assist, which he did by obtaining loans from the banks.

[21]. Applying the principles in National Employers' General Insurance Co Ltd v Jager (supra), I am of the view that the probabilities in this matter favour the second claimant. I say so for the above reasons.

[22]. I therefore intend allowing the claim of the second claimant.

Costs

[23]. The second claimant has been successful in his claim in these interpleader proceedings. This means that, applying the general rule, he is entitled to a cost order. He was however not legally represented during these proceedings.

[24]. Accordingly, I am of the view that no order as to cost should be made.

ORDER

In the circumstances, I make the following order:

1. The second claimant’s claim to the movable property placed under attachment on the 1st of December 2016 by the Sheriff of the Court, Westonaria, be and is hereby allowed.

2. The applicant (the Sheriff of the Court, Westonaria) shall release from attachment the movable property placed under attachment in terms of the notice of attachment dated the 1st of December 2016.

3. There shall be no order as to costs.

_________________________________

L ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

HEARD ON: 31st October 2017 JUDGMENT DATE: FOR THE APPLICANT: 14th December 2017 No appearance INSTRUCTED BY: No appearance FOR THE FIRST CLAIMANT: Adv N Alli INSTRUCTED BY: Mendelow – Jacobs Attorneys FOR THE SECOND CLAIMANT: In person INSTRUCTED BY: In person