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[2013] ZAECPEHC 13
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Sheriff of the High Court, Humansdorp v FirstRand Bank Ltd and Others (3312/2011) [2013] ZAECPEHC 13 (26 February 2013)
7
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
Case no: 3312/2011
Date heard: 26.4.2012
Date delivered:
26.2.2013
In the matter between:
THE SHERIFF OF THE
HIGH COURT,
HUMANSDORP
...............................................................................................
Applicant
vs
FIRSTRAND BANK LIMITED
...................................................................
First
Claimant
BAREND CHRISTOFFEL VAN
VUUREN
...........................................
Second
Claimant
DANIEL JACOBUS VOSLOO
.................................................................
Third
Claimant
ANNA MAGDALENE VOSLOO
............................................................
Fourth
Claimant
BAREN CHRISTOFFEL VAN
VUUREN
...................................................
Fifth
Claimant
JUDGMENT
TSHIKI J:
[1] In this matter
Firstrand Bank Limited, the first claimant, instituted action against
the second to fourth claimants jointly
and severally for the payment
of a sum of R913 294,95. On 23
rd
November 2010, the
first claimant, as plaintiff in such proceedings, obtained summary
judgment against the second to fourth claimants
for the payment of
the sum of R913 294,95 plus costs on the scale as between
attorney and client.
[2] The applicant herein,
being the Sheriff of the District of Humansdorp executed the writ of
execution which was authorised by
this Court in execution of the
summary judgment by attaching the goods or property that is the
subject of these interpleader proceedings.
When the applicant herein
executed the writ he attached property that he found in second
claimant’s premises to the value
of R12 820,00 which
property is being claimed by one Mr Vincent Van Vuuren and his
brother Mr Regardt Van Vuuren as their
property.
[3] In response to the
attachment, second claimant deposed to an affidavit stating that he
was not the owner of the attached goods.
Upon the first claimant’s
refusal to admit the second claimant’s claim the Sheriff
instituted the interpleader proceedings
in terms of Rule 58(1)
calling upon the claimants to deliver particulars of their claim. The
time frames that were set by the Sheriff
were not observed by the
correct claimants herein, however, they ultimately complied and after
their delay had been condoned by
this Court, somewhat surprisingly,
the parties decided to argue the interpleader proceedings before me
on 26
th
April 2012 when judgment was reserved. When the
claim was argued the actual claimants had not yet appeared in the
list of claimants
and only their particulars of claim were filed.
[4] During argument, Ms
Bands appeared for the first claimant and Mr Naidu represented the
claimants other than the first claimant,
that is Mr Vincent Van
Vuuren and his brother Mr Regardt Van Vuuren.
[5] Interpleader
proceedings, are governed by Rule 58 (1-7) which reads as follows:
“
Interpleader
58(1) Where any person, in this rule
called ‘the applicant’, alleges that he is under any
liability in respect of which
he is or expects to be sued by two or
more parties making adverse claims, in this rule referred to as ‘the
claimants’,
in respect thereto, the applicant may deliver a
notice, in terms of this rule called in ‘interpleader notice’,
to the
claimants. In regard to conflicting claims with respect to
property attached in execution, the deputy-sheriff shall have the
rights
to an applicant and an execution creditor shall have the
rights of a claimant.
(2)(a) Where the claims relate to
money the applicant shall be required, on delivering the notice
mentioned in sub-rule (1) hereof,
to pay the money to the registrar
who shall hold it until the conflicting claims have been decided.
(b) Where the claims relate to a thing
capable of delivery the applicant shall tender the subject-matter to
the registrar when delivering
the interpleader notice or take such
steps to secure the availability of the thing in question as the
registrar may direct.
(c) Where the conflicting claims
relate to immovable property the applicant shall place the title
deeds thereof, if available to
him, in the possession of the
registrar when delivering the interpleader notice and shall at the
same time hand to the registrar
an undertaking to sign all documents
necessary to effect transfer of such immovable property in accordance
with any order which
the court may make or any agreement of the
claims.
(3) The interpleader notice shall –
(a) state the nature of the liability,
property or claim which is the subject-matter of the dispute;
(b) call upon the claimants within the
time stated in the notice, not being less than fourteen days from the
date of service thereof,
to deliver particulars of their claims; and
(c) state that upon a further date,
not being less than fourteen days from the date specified in the
notice for the delivery of
claims, the applicant will apply to court
for its decision as to his liability or the validity of the
respective claims.
(4) There shall be delivered together
with the interpleader notice an
affidavit by the applicant stating
that -
(a) he claims no interest in the
subject-matter in dispute other than for charges and costs;
(b) he does not collude with any of
the claimants;
(c) he is willing to deal with or act
in regard to the subject-matter of the dispute as the court may
direct.
(5) If a claimant to whom an
interpleader notice and affidavit have been duly delivered fails to
deliver particulars of his claim
within the time stated or, having
delivered such particulars, fails to appear in court in support of
his claim, the court may make
an order declaring him and all persons
claiming under him barred as against the applicant from making any
claim on the subject-matter
of the dispute.
(6) If a claimant delivers particulars
of his claim and appears before it, the court may –
(a) then and there adjudicate upon
such claim after hearing such evidence as it deems fit;
(b) order that any claimant be made a
defendant in any action already commenced in respect of the
subject-matter in dispute
in lieu
of or in addition to the
applicant;
(c) order that any issue between the
claimants be stated by way of a special case or otherwise and tried,
and for that purpose order
which claimant shall be plaintiff and
which shall be defendant;
(d) if it considers that the matter is
not a proper matter for relief by way of interpleader notice dismiss
the applicantion;
(e) make such order as to costs, and
the expenses (if any) incurred by the applicant under paragraph (b)
of sub-rule (2), as to
it may seem meet.
(7) If an interpleader notice is
issued by a defendant in an action, proceedings in that action shall
be stayed pending a decision
upon the interpleader, unless the court
upon an application made by any other party to the action otherwise
orders.”
[6] As already alluded to
above, the attached goods worth R12 820,00 were in the
possession of the second claimant, Mr Barend
Christoffel Van Vuuren
when they were attached. He, however, does not lay ownership claim to
the property in issue, but has entered
the fray only on the grounds
that this property was in his possession and within his premises when
it was attached by the applicant.
[7] I fail to understand
why the second claimant has elected to become one of the claimants in
these proceedings. When the property
in issue was attached by the
Sheriff (applicant) the Sheriff became the legal possessor of the
property for the benefit of the
first claimant who is the judgment
creditor in whose benefit the attachment was executed. If, therefore,
another person decides
to claim ownership of the attached goods, the
Sheriff is obliged to deliver the property or money, in dispute, as
the case may
be, to the Registrar of the High Court who will hold it
for delivery or payment to the successful claimant when the issue of
the
interpleader proceedings has been finalised in favour of the
successful claimant (
Kamfer v Redhot Haulage (Pty) Ltd
1979 (3) SA 1149
(W) at 1152 c).
[8] Strictly speaking the
second claimant is not a claimant to the property in issue. He was
not supposed to have been listed as
one of the claimants in the first
place. The only people who can legally be regarded as claimants are
the Van Vuuren brothers mentioned
above. Where the property in
question is held by the Sheriff, he or she has
locus standi
vis-a-vis
the claimants to bring an interpleader application,
which he has done herein, while the execution creditor has the rights
of a
claimant (
Bernstein v Visser
1934 (CPD) 270).
[9] The latest papers
filed of record herein show that the people who can now legitimately
lay claim of the attached property are
Regardt Van Vuuren and Vincent
Van Vuuren. In their particulars of claim the above two claimants
both claim that the attached goods
were given to them by their
parents, the second claimant and one Claressa Van Vuuren, save for
the piano which Regardt Van Vuuren
claim to have received as her
tenth year birthday from his parents on 14 November 1996.
[10] This, therefore,
means that the two claimants referred to above who have filed their
Particulars of Claim in these proceedings
should be reflected as
claimants and this has not been done as the record does not indicate
the two as the claimants in the proceedings.
[11] It follows,
therefore, that when the matter was argued the correct claimants were
not reflected in the record as claimants
herein as is required by
Rule 58(1). Moreover, from the evidence that appears from the record,
I cannot make a finding on the ownership
of the property. I say so
because there are conflicting claims which cannot be determined on
the papers before me. It would be
prejudicial to the first claimant
for me to proceed with these proceedings, as they are. There has been
no proper handling of the
matter by both counsel especially counsel
for the new claimants. The correct claimant’s names should have
been reflected
on the face of the filing notice and in all the papers
herein. Instead the record shows names of irrelevant persons as
claimants
in particular Barend Christoffel Van Vuuren, Daniel Jacobus
Vosloo and Anna Magdalene Vosloo.
[12] I am also of the
view that if the parties intend to pursue this matter the proceedings
would have to be referred for oral evidence
on the basis that the
issues cannot be resolved on paper. Therefore, the first claimant
shall be referred to as the plaintiff and
the second and third
claimants as the first and second defendants respectively. This is so
if the first claimant still insists
on its claim to the property.
[13] It is also
unfortunate that in this matter the order has only been issued at
this stage. When I was preparing my judgment in
this case about
August/September 2012, my vehicle was broken into and my briefcase
containing the Court files inclusive of the
one in issue was stolen.
I requested the parties to reconstruct the Court file herein and they
took a long time to do so. To make
matters worse, Veritas, the
transcribing company, transcribed the record that belongs to another
case and the parties were unable
to notice this error before they
brought the incorrect record to me. When I picked up the error, I
again returned the file to the
parties for a transcription of the
correct record which only reached my office on 29
th
January 2013. It is for the above reasons that this matter took so
long to reach this stage. None of the parties herein was able
to pick
up the error of not reflecting the names of the correct claimants. I
cannot, therefore, order any party to pay costs occasioned
by the
omission to pick up the error of reflecting the incorrect names of
the claimants.
[14] For the above
reasons, I make the following order:
[14.1] The applicant is
ordered to remove the names of the second to fifth claimants herein
and that they be substituted by the
names of the first claimant as
the plaintiff and Vincent Van Vuuren and Regardt Van Vuuren as first
and second defendants respectively.
[14.2] If the first
claimant is still interested in pursuing the claim, the matter is
hereby
referred for oral
evidence to determine the ownership of the property which
forms the subject matter
of these interpleader proceedings.
[14.3] There shall be no
order as to costs.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Counsel for the applicant
: No appearance
Counsel for the first
claimant : Adv Bands
Instructed by :
McWilliams & Elliot
PORT ELIZABETH
Counsel for the second
claimant : No appearance
Counsel for the third and
fourth
claimant : Mr Naidu
Instructed by : Legal Aid
Board
PORT ELIZABETH
Counsel for the fifth
claimant : No appearance