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[2024] ZAFSHC 11
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Sheriff, Bloemfontein East v Lategan and Another (1105/2019) [2024] ZAFSHC 11 (25 January 2024)
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No:
1105/2019
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SHERIFF,
BLOEMFONTEIN EAST
Applicant
And
LEON
PIETER LATEGAN
First
Claimant
COLVOR
INTERNATIONAL TRUST
Second
Claimant
(IT
1[…])
CORAM:
HEFER AJ
HEARD
ON
:
IN CHAMBERS
DELIVERED
ON:
25 JANUARY
2024
[1] The
subject matter of this interpleader is shares to the value of
R1,000,000.00 in Seliba Nokeng (Pty) Ltd
(“
Seliba”
).
[2]
During May 2019 First Claimant obtained judgment against Quad Ostrich
Farming (Pty) Ltd, Colin John Vorster
and Janette Elizabeth Vorster.
[3] In
terms of a warrant of execution, the Applicant executed the writ and
the warrant was served upon Janette
Vorster (“
Mrs Vorster”
)
personally on 7 November 2019 and the return in respect thereof
records that the Applicant:
“
Did
attach the shares of Janette Elizabeth Vorster in Seliba Nokeng
Eiendoms.
A share certificate
has been requested, but not yet received.”
[4]
Although the share certificate could not be handed to the Applicant,
at the time of execution,
Mr Colin Vorster, the husband of Mrs
Vorster, confirmed on the 12
th
of November 2019 that Mrs
Vorster is the owner of the shares and that he will obtain the share
certificate.
[5]
The Applicant subsequently managed to obtain a copy of the share
certificate in respect of the
shares held by Mrs Vorster from the
duly appointed accountants for Seliba, being Forte Accountants.
[6]
A sale in execution by way of public auction was arranged to be held
on 14 July 2021 at the offices
of the Sheriff, Bloemfontein East.
[7]
On the 12
th
of July 2021, the Second Claimant, through Mrs
Vorster, deposed to an affidavit stating that Colvor International
Trust is the
owner of the shares held in Seliba.
[8]
First Claimant disputes the Second Claimant’s claim of
ownership.
[9]
A trustee of Second Claimant is the same Mrs Vorster against whom
judgment was obtained. According
to the First Claimant, on numerous
occasions throughout 2018 as well as 2019 not only Mrs Vorster
herself, but also her husband
Mr Vorster as well as the legal
representative of Mr and Mrs Vorster as well as a letter by Forte
Accountants, confirmed that
Mrs Vorster owns the shares in
question.
[10] In
a sworn affidavit deposed to by Mrs Vorster on the 12
th
of
July 2021, she confirmed that she is one of two trustees of the
Colvor Trust and that this Trust is the shareholder of 50% shares
of
Seliba. Subsequent to this affidavit, Second Claimant has previously
been requested to provide documents and/or information
substantiating
its claim which the Second Claimant has failed to do.
[11] In
support of its claim Second Claimant relies on a share certificate
dated 5 November 2018 evidencing that
the trustee for the time being
Colvor International Trust is the proprietor of 50 ordinary shares in
Seliba. This certificate
was signed by Mrs Vorster only,
allegedly in her capacity as director of Seliba.
[12]
The Second Claimant claims ownership of shares that were in the
possession of the judgment debtor, Mrs Vorster,
where it was attached
by the Sheriff at the behest of the judgment creditor, the First
Claimant.
[13]
In
Ebrahim
v Deputy Sheriff Durban and Another
[1]
,
Henning J said as follows:
“
The
test whether the claimant has discharged the onus of proving his
ownership to movable property which is not in his possession,
is
whether, in a result, the probabilities are balanced in his favour.”
[14]
Mr
Van
der Merwe
,
who appeared on behalf of the First Claimant, is correct in his
submission that the Second Claimant must discharge the onus of
proving its claim to ownership of the shares.
[2]
[15]
The Second Claimant has elected to present evidence and discharge its
onus only by means of affidavit. The
main points advanced in the
Second Claimant’s Particulars of Claim are:
(i)
That the limited Deed of Surety underlying
to the judgment debt has been extinguished; and
(ii)
That it owns the shares as the shares were
“
legally acquired by it from Mrs
Vorster”
.
[16]
These two points will be dealt with in what follows under two
separate headings.
The
liability of Mrs Vorster in terms of the Deed of Suretyship
:
[17]
The Second Claimant argues that Mrs Vorster has been released from
her liability arising out of the Deed
of Suretyship or that such
liability has been extinguished.
[18]
For this contention, the Applicant relies upon the fact that because
a certain amount paid to Messrs
McIntyre Van der Post
Attorneys, being the legal representatives of the First Claimant,
together with the proceeds of two auctions
which was held at which
various assets belonging to Mrs Vorster were sold in execution,
exceeds the limited amount in respect of
which Mrs Vorster is liable
for in terms of the Deed of Suretyship upon which judgment was
granted, Mrs Vorster’s liability
in terms of such suretyship
and judgment had been extinguished.
[19] In
answer to these allegations, Messrs McIntyre Van der Post Attorneys
filed a supplementary affidavit explaining
in detail how the amounts
received have been appropriated and showing that Mrs Vorster still
remains liable and indebted to the
First Claimant in the amount of
approximately R1,200,000.00 excluding interest and costs.
[20]
Irrespective of the latter, of importance is the fact that Mrs
Vorster in her personal capacity is not a
party to the present
proceedings. If Mrs Vorster’s liability under the Deed of
Suretyship is in dispute she should have approached
the Court herself
for appropriate relief in this regard, e.g. a declaratory order.
[21]
The Second Claimant has merely an indirect or financial interest in
the subject matter of such dispute as
opposed to a direct and
substantial legal interest therein that could be effected
prejudicially. In this regard Mr
Van
der Merwe
referred me to the matter of
Henry
Viljoen (Pty) Ltd v Awerbuch Brothers
[3]
and
United
Watch & Diamond Company (Pty) Ltd and Others v Disa Hotels Ltd
and Another
[4]
.
Although these two matters do not deal with interpleader proceedings,
the principles contained and discussed in both cases, can
be applied
to in the present matter.
[22]
Whereas the First Claimant indeed has an indirect or financial
interest in the subject matter in that ownership
of the shares in
question might have a financial impact on Second Claimant, a claimant
in an interpleader, cannot use the liability
of a debtor in regards
to which the interpleader is applicable, to establish or prove its
claim in such interpleader. The present
interpleader is only in
regards to the rival claims to the Trust shares and in particular
ownership of such shares.
[23]
The Second Claimant’s argument and contentions in this regard
must therefore be dismissed.
Had
the shares been donated / transferred to the Second Claimant
?
[24]
According to Adv
Pieterse
, counsel on behalf of the Second
Claimant, the crux of the matter is simply this:
(i)
On 6 June 2016 Mrs Vorster obtained shares
in Seliba.
(ii)
On 5 November 2018 Mrs Vorster donated her
shares to the Second Claimant being the Trust for her children’s
benefit. According
to her, the Second Claimant’s ownership is
duly proved by the share certificate dated 5 November 2018.
(iii)
There was an order handed down on 9 May
2019 against
inter alia
Mrs Vorster in her capacity as Third Defendant.
(iv)
The Applicant, based on an outdated share
certificate of 2016, attached the shares purportedly belonging to Mrs
Vorster in execution
of the warrant of execution issued under the
main action to sell on auction the shares and use the funds for the
judgment debt.
(v)
The First Claimant makes averments that Mrs
Vorster is still the owner of the shares based on hearsay evidence
and an outdated share
certificate which cannot be sufficient proof of
ownership.
(vi)
The Second Claimant submits that the shares
no longer belong to Mrs Vorster and were denoted the Second Claimant
prior to the order
being granted.
(vii)
The Applicant has in its possession an
outdated share certificate of 2016 and cannot attach the 50% in
Seliba as it belongs to the
Second Claimant and no judgment was
obtained against the Second Claimant to execute a warrant against.
[25] As
indicated in
Ebrahim v Deputy Sheriff Durban and Another (
supra
)
,
the test whether a claimant has discharged the onus of proving his
ownership to movable property which is not in his possession
is
whether the probabilities are balanced in his favour. The
claimant is to produce clear and satisfactory proof of his ownership.
[26] It
must therefore be considered whether the Second Claimant did in fact
produce such clear and satisfactory
proof of its ownership and
whether the probabilities favours the Second Claimant.
[27]
According to the Applicant, the share certificate (2016 certificate)
which shows that the Seliba shares are
in the name of Mrs Vorster,
was obtained from the accountants of Seliba being Forte Accountants.
[28] In
response to this, the Second Claimant in this regard answers as
follows:
“
I
further deny that the accountants of Seliba could have had the
correct and updated share certificate. On 1 November 2018, a meeting
was held by Seliba’s shareholders being myself and Mr Jan
Hendrik Boshoff and the resolution was accepted that
all
(own emphasis)
shareholding
certificates were to be collected from Forte Rekenmeesters and held
in own personal safekeeping. I append hereto the
resolution as ‘SC3’.
The certificates were collected thereafter and since then, the
relevant and updated share certificates
of Seliba have been in the
director’s safekeeping and not the accountants.”
[29] It
is unclear why such resolution was indeed necessary at that stage. Be
it as it may, referring to “
all shareholding certificates”
the proposition advanced by the Second Claimant, means in effect that
both the 2016 as well as the 2018 share certificates must
have been
in possession of Forte Accountants. It is undisputed that the Sheriff
obtained a copy of the 2016 share certificate from
the said Forte
Accountants. The question immediately arises why Forte Accountants
were then not also in possession of a copy of
the 2018 share
certificate. The reasonable inference is that such accountants would
have had a copy thereof at least whereas, on
the version of the
Second Claimant itself, by implication the 2018 share certificate was
to be collected from Forte Accountants.
[30]
Furthermore, in this regard, on the version of the Second Claimant
itself, “…
the relevant and updated share
certificates of Seliba have been in the directors’ safekeeping
and not the accountants”.
On the version of the
Second Claimant, it must be therefore accepted that the 2018 share
certificate must have been in possession
of Mrs Vorster who is, on
the version of the Second Claimant itself, one of the directors of
Seliba. On the version of the Second
Claimant therefore, Mrs Vorster
must have been in possession of the 2018 share certificate on the
date of execution of the writ
of execution, but it is common cause
that she did not hand such certificate to the Sheriff nor did she
draw the Sheriff’s
attention to the fact that the shares in
Seliba are the property of First Claimant and not her own. In fact,
it is undisputed that
a mere two days before the sale of execution
was to be held during July 2021, Mrs Vorster all of a sudden deposed
to an affidavit
stating that the Second Claimant is the owner of the
shares. The question inevitably arises why Mrs Vorster did not give
any indication
in regards to the 2018 share certificate to the
Sheriff in 2019 during execution of the writ. Is it because such 2018
share certificate
was not in existence at the time?
[31]
The Second Claimant and in effect Mrs Vorster, is, as far as the
probabilities are concerned, confronted
with a much more important
factor.
[32] In
the Second Claimant’s answer to First Claimant’s
supplementary affidavit, deposed to by the
same Mrs Vorster on 20
October 2023, the following was stated:
“
I
confirm that on 5 November 2018 when I donated my shares to the
trust, I was a trustee of the trust. I was acting as a Donor in
my
capacity as shareholder in respect of and as a Donnée who
accepted the donation on behalf of the trust.”
[33]
However, in the Second Claimant’s Particulars of Claim dated 13
April 2022, it was stated that Mrs
Vorster has since 2011 been the
sole trustee of the Colvor International Trust and that Mr Botha
Barnard was later added as a trustee
to the Colvor International
Trust. In support of this allegation, the Second Claimant then refers
to the Master’s Letters
of Authority dated 11 March 2021 which
indeed shows that Mr Barnard and Mrs Vorster were at the time the
trustees of the Colvor
Trust.
[34]
This allegation is then followed by reference to a copy of the Second
Claimant’s Trust Deed which is
appended to such Particulars of
Claim. This Deed of Trust shows that on the 29
th
of
October 2011 the sole trustee of the Trust, was Mr CJ Vorster,
apparently the husband of Mrs Vorster.
[35] In
a letter relied upon by the Second Claimant, dated 22 August 2023,
from the Master’s office to Rosendorff
Reitz Barry Attorneys,
Mr Jansen from the Master’s office, indicated that no amended
letters of authority had been issued
during 2011. He further states
that only an amended Deed of Trust dated 29 October 2010 was lodged
but no documentation pertaining
to the appointment of a further
trustee. Importantly, Mr Jansen further stated that the first
activity on file was on the 11
th
of March 2021 when
documentation was received pertaining to the appointment of the
present trustees.
[36] In
the Second Claimant’s answer to the First Claimant’s
supplementary affidavit, Mrs Vorster
then states as follows:
“
From
2011 until date of deposing hereof, I was under the bona fide belief
that I was the only trustee of the trust until Mr Botha
Barnard was
also appointed as a trustee during 2021. This was at all relevant
times my instructions to my legal representatives
as well. I only
learnt on 22 August 2023 that my appointment as sole trustee of the
trust was never effected during 2011 after
my legal representative
requested a copy of the letter of authority from the Master’s
office in support of this affidavit.”
[37]
These facts are of threefold importance as will be evident from what
follows.
[38]
First of all it shows that where the Second Claimant pleaded in his
Particulars of Claim that:
(i)
“
Mrs Vorster has since 2011 been
the sole trustee of the Colvor International Trust”
and;
(ii)
“
Mr Colin Vorster does not bear
knowledge of the innerworkings of trust and was never in a position
to answer the question as to
who the owner of the shares in Seliba
Nokeng (Pty) Ltd are”
,
are patently false.
[39]
Secondly, as correctly pointed out by Mr
Van der Merwe
, the
belated admission by the Second Claimant that Mr Vorster was the sole
trustee of the Second Claimant at the time of the alleged
donation of
shares to the Trust and that Mrs Vorster’s claim that she
believed herself to be the only trustee of the Second
Claimant since
2011 and did not know that her husband was the sole trustee, is
highly implausible and should be rejected as farfetched.
[40]
Thirdly, and most importantly, the version by the Second Claimant
that Mrs Vorster in fact accepted the alleged
donation of the shares
to the Trust during November 2018 as donnée in her capacity as
trustee of the Trust can also not
be correct and in fact not be true.
[41]
The only document before Court in respect of Mrs Vorster being a
trustee, is the Letters of Authority dated
11 March 2021 which shows
at that stage she together with Mr Botha were the trustees of the
Trust. There is nothing to show that
before 2021 , Mrs Vorster was a
trustee of the Second Claimant.
[42]
The only person who could have accepted the alleged donation of such
shares is Mr Vorster. The undisputed
evidence is that Mr Vorster was
however not only unaware of the transfer of the shares to the Second
Claimant, but also informed
the First Claimant’s legal
representatives that Mrs Vorster was the owner of the shares. The
silence of Mr Vorster who did
not present any evidence for purposes
of these proceedings, as to the alleged donation and transfer of the
shares to the Second
Claimant, while he was the sole trustee of the
Second Claimant, speaks volumes.
[43]
The above facts, to say the least, do not support the probabilities
in favour of the Second Claimant and
one can only speculate in
regards to the origin of the alleged 2018 “
share
certificate”
.
[44]
Coupled with the above, is the absence of any additional documentary
proof regarding the alleged donation.
In this regard, the Second
Claimant did not provide any proof (e.g. financial statements) that
the shares are recorded as an asset
in the books of the Second
Claimant, in spite of Second Claimant having been required to provide
such supporting documents as early
as August 2021.
[45] It
therefore follows that it can not be found that the shares concerned
were indeed donated to the
Second Claimant where the
acceptance thereof was not done by the then sole trustee ,
being Mr Vorster . The Second
Claimant thus has failed to establish
its claim in the interpleader proceedings and is liable
for the costs in respect
of thereof.
[46] It
is trite law that a punitive cost order may be granted in the
discretion of a Court where the facts presented
to Court by a party
is untruthful. The inference to be drawn from the facts
presented by the Second Claimant, is that such
facts relied upon by
the Second Claimant are indeed untruthful and therefore warrants a
punitive cost order. The use of the
alleged 2018 share
certificate was deceitful and intended to mislead the Court.
Order
:
Therefore, I make the
following order:
1.
First Claimant’s claim is upheld.
2.
Second Claimant’s claim is dismissed.
3.
Second Claimant is to pay the costs of the
interpleader proceedings on an attorney and client scale.
J J F HEFER, AJ
Appearances:
On
behalf of the First Claimant:
Adv
HJ van der Merwe
Instructed
by: McIntyre Van der Post
Bloemfontein
On
behalf of the Second Claimant:
Adv
MCM Pieterse
Instructed
by: Horn & Van Rensburg Attorneys
Bloemfontein
[1]
1961 (4) SA 267 (D).
[2]
Greenfield NO v Blignaut and Others
1953 (3) SA 597
(SR) at 598 C –
D.
[3]
1953 (2) SA 151 (O).
[4]
1972 (4) SA 409
(C) at 417 B – C.