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[2024] ZAFSHC 21
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Sheriff Bloemfontein West v Carospan (Pty) Ltd and Another (4587/2020) [2024] ZAFSHC 21 (30 January 2024)
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 4587/2020
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
In the matter between:
SHERIFF,
BLOEMFONTEIN WEST
Applicant
and
CAROSPAN
(PTY) LTD t/a NASHUA BLOEMFONTEIN
First Claimant
EILEEN
JOUBERT
Second Claimant
CORAM:
HEFER AJ
HEARD
ON
:
1 DECEMBER 2023
DELIVERED
ON:
30 JANUARY 2024
[1]
Pursuant to First Claimant obtaining a default judgment against,
inter alia
, Mr John Joubert during March 2022, a warrant of
execution was issued against Mr Joubert. The Applicant
proceeded to attempt
to execute the warrant of execution at the
residence of Mr and Mrs Joubert situated at 6[…] K[...] S[...]
S[…], Bloemfontein,
without success. It appears from the
return of service by the Applicant, that Mr Joubert did not react to
messages left at such
place of residence by the Applicant requesting
him to contact the offices of the Applicant. This was during May and
June 2022.
[2]
On the 21
st
of August 2023, the Applicant succeeded in
executing the warrant of execution at the said property and attached
certain movable
assets as per the inventory to the applicable return
of service. Save for a Jeep Grand Cherokee motor vehicle, the
movables attached
consist mainly of domestic furniture and
appliances.
[3]
Pursuant to the attachment and removal of such movables, First
Claimant’s attorneys of record
received a certificate of
registration in respect of the Jeep Grand Cherokee from which it
appears that the owner thereof is the
Second Claimant, Mrs E M
Joubert.
[4]
First Claimant’s claim is therefore based only on the remainder
of the assets as contained
in the inventory, excluding the Jeep
Vehicle.
[5]
In an affidavit delivered by Second Claimant during April 2022, she
stated that the immovable
property, situated at 6[…] K[...]
S[...] Street, Bloemfontein, was inherited by her from her
grandfather Frederick Siebert.
In this respect she referred to her
grandfather’s Last Will and Testament which was attached to the
affidavit. It indeed
appears from the contents of this Will, that the
immovable property concerned, was bequeathed to the Second Claimant.
In this respect
it was an expressed condition of the Will that the
remainder of the Late Mr Siebert’s estate was to be divided in
three equal
portions and that the immovable property concerned was
then to be added to the portion bequeathed to Mrs Joubert.
[6]
The Will then further contains a somewhat confusing clause to the
effect that the testator, being
the Late Mr Siebert, then further
bequeathed the remainder of his estate in equal portions to his
grandchildren, Frederick Siebert
and to Mrs Joubert.
[7]
Mrs Joubert deposed to an affidavit on 19 April 2022. In the
affidavit, Mrs Joubert declared that
she is the sole owner of the
property situated at K[...] S[...] S[…] as well as the
contents thereof. She further declared
that her mother is staying
with her in a flat apparently on the property concerned and that the
contents of the flat is the sole
property of her mother.
[8]
In an affidavit deposed to by Mrs Aletta Siebert, the mother of Mrs
Joubert, she further declared
in relation to Second Claimant:
“
I
further confirm that the contents of her house is also her sole
property, except from(sic) the furniture in the flat that I am
occupying which is my own.”
[9]
In an affidavit by Mr Joubert, deposed to on the same date, he states
as follows:
“
I
confirm under oath that the property where we are staying belongs to
my wife as she inherit
(sic)
same
from grandfather. She also inherited the furniture. As my
mother-in-law is staying with us in a flat, only the furniture in
her
flat, is not my wife’s property. This belongs to my
mother-in-law.”
[10] In
its Particulars of Claim, the First Claimant pointed out that the
inventory contains 48 assets that were
attached and that the Second
Claimant failed to specify in her initial affidavit which furniture /
contents in the property she
owns. However, one should keep in mind
that the initial affidavit was already deposed to during April 2022,
which is 16 months
prior to the Sheriff attaching the movable assets.
One can assume that the three affidavits deposed to on the same date
were in
an attempt to safeguard the relevant assets after the
default judgment in the amount of approximately
R2.8 million
had been granted.
[11] In
Mr Joubert’s affidavit deposed to at the time, he further
declared as follows:
“
I
own a property N[...]. 7 H[...] which is situated next to the
M[..]R[...] at M[...]. My personal belongings and furniture were
utilised in this river property.
I sold this property
approximately two years ago with the content.”
[12] In
the latter regard, however, First Claimant referred to a sworn
affidavit by Mr Michael Walker deposed
to on 6 October 2023, in which
he declared as follows:
“
I
confirm that I purchased a property during 2020 from Mr John David
Joubert.
The property is known
as N[...]. 7 H[...] and is situated next to the M[...] at M[...]
F[...]St[...]. The purchase price of the
property was R3 800 000.00.
I confirm that when I
purchased the property, there was no furniture and/or any movable
property of Mr Joubert sold with the property
and the property was
empty when I moved in.”
Of significance is that
this affidavit was deposed to and Second Claimant’s attorney
had been placed in possession thereof
together with First Claimant’s
affidavit on the 3
rd
of November 2023, prior to the Second
Claimant particulars of claim.
[13] In
a copy of the Offer to Purchase which was also provided by the First
Claimant, it appears that the said
Mr Walker was indeed the purchaser
of the property situated next to the Modder River.
[14] In
this document, no reference is made to the movable property forming
part of the sale.
[15|
Based on the above facts, First Claimant asks that it must be
presumed that Mr Joubert’s personal
belongings and furniture
were kept in the property to be regarded as his place of residence
and are the assets as contained in
the Sheriff’s inventory.
[16] In
the Second Claimant’s Particulars of Claim dated 23 November
2023, Second Claimant declared
inter alia
as follows:
(i)
She and her husband were married out of community
of property during November 2000. As both parties were business
people, they decided
to marry out of community of property.
(ii)
She inherited the property they reside in from her
grandfather. It was fully furnished when she inherited it.
(iii)
Mr Joubert moved into her house and they made a
living from their separate businesses.
(iv)
As Mr Joubert was
extremely
busy with his business
, she ran the
household. She further states that she was then 26 years old when
they were married and has always been independent
of Mr Joubert as
she earned her own income and she inherited well from her
grandfather. In this regard she referred to the contents
of the
Antenuptial Contract from which it appears that for purposes of
accrual, Mr Joubert declared household and furniture to
the value of
R80,000.00 whilst the value of her movable property amounted to
R100,000.00.
(v)
Then she declares as follows:
“
During
the 22 years many of the property was replaced due to normal wear and
tear and daily living.
As my house was fully
furnished, we did not have a need for
most
(own emphasis) of
the Second Defendant’s property.
The Second Defendant
leased a river house some times in the early 2000. I cannot recall
the exact year and we used most of his furniture
to furnish that
river house.”
On the version of the
Second Claimant therefore she indicated that the many of the items
had been replaced over the years.
(vi)
She then continues to state that during the late
2000s Mr Joubert gave the river property to his sister who was in
dire financial
need. The property was, according to her, given to Mr
Joubert’s sister with the furniture that belonged to Mr
Joubert. She
further states that Mr Joubert then bought a new
property on the “Mud River”. The remainder of Mr
Joubert’s furniture
was then moved to the second river
property. She further states that Mr Joubert sold his furniture when
he sold his immovable property,
being the river house, before he was
sequestrated.
(vii)
According to Second Claimant, she took a bond over
her property during 2007 and refurbished the house. She alleges that
she bought
many of the movable assets with the bond money and the
intention was to upgrade and refurbish the house.
[17]
The Second Claimant then continued in her claim to deal with each
asset as it was contained in the warrant
of execution with the
inventory. In this regard she stated further:
“
The
Honourable Court will understand that I am not able to provide
receipts for the assets as it was bought a long time ago, and
I
inherited many of the assets.
My mother lives in a
granny flat attached to our house and some of the assets that were
attached belong to her.”
The
evidence by Mrs Joubert however shows that none of the furniture
concerned were inherited.
[18] As
far as certain assets are concerned, in particular a computer which,
according to Mrs Siebert, is her
personal computer which she uses for
her business, as well as the desk referred to in the inventory, she
testified that she is
the owner thereof which evidence can be
accepted on probabilities. The same goes for the Treadmill, which
according to Mrs Joubert,
is used by her in her occupation as
personal trainer. However there are no other evidence i.e documents
substantiating such facts.
[19]
According to second claimant items contained in the inventory, belong
to Mr Joubert. These items are particularised
as the bar fridge, the
lawnmower and the edge trimmer. Although Mrs Joubert testified in
Court that the bar fridge is built-in,
such asset is indeed on the
concession by Mrs Joubert regarded to be the property of Mr Joubert.
[20]
In
S
v Zuma and Others
[1]
,
it was held that rebuttal of a presumption is “…
on
proof on a balance of probabilities”
.
[21] In
the present matter, the Court is confronted with the presumption that
“…
possession of a movable raises a presumption of
ownership; and that therefore a claimant in an interpleader suit
claiming ownership
… must rebut that presumption by clear and
satisfactory evidence.”
[22]
In
Ebrahim
v Deputy Sheriff Durban and Another
[2]
,
Henning J said as follows:
“
The
test whether a claimant has discharged the onus of proving his
ownership to movable property which is not in his possession
is
whether in the result, the probabilities are balanced in his
favour.The strength of the evidence which he has to produce
to
succeed depends on the circumstances of the particular case. In an
interpleader suit, for example, the judgment creditor may
be at a
great disadvantage that he is not in the position to produce evidence
to rebut that of the claimant who says that the disputed
property is
his … the claimant to produce clear and satisfactory proof of
his ownership.”
Evaluation
of Second Claimant’s evidence
:
[23]
Second Claimant is the only person who testified in regards to Second
Claimant’s claim.
[24]
Mrs Joubert testified that after she and Mr Joubert got married, he
stored his furniture and all belongings
in the garage. The reason for
that was because Mrs Joubert’s furniture and belongings were in
the communal home. At a later
stage the furniture and belongings of
Mr Joubert were moved to the house next to the Modder River (“
the
river house”
) which was rented. According to her, all the
furniture and belongings of Mr Joubert were taken to this house. In
Second Claimant’s
Particulars of Claim however it was stated
that “…
we used most of his furniture to furnish the
river house”
. She testified that at some stage, after First
Defendant has given the rented house to his sister, he purchased the
second river
house, already referred to in various affidavits. At
that stage, according to Second Claimant, Mr Joubert’s
furniture and
belongings were moved to the second river house.
[25] As
far as the item regarding the 10-piece dining room set is concerned,
in her Particulars of Claim Mrs Joubert
stated that: “
I
inherited the table from my grandfather and bought the wicker chairs
from Builders Warehouse some 17 years ago”
. During
her evidence however, she testified that she purchased the full set
which would include the table. In this instance
there is therefore a
contradiction between the contents of the affidavit and her evidence.
[26]
Mrs Joubert testified that she and her husband had been staying
together in the same house for the past approximately
23 years. Until
2020 her husband had a very successful business from which he derived
a good income, although she could not provide
details in regards to
his income. In spite of her husband being successful, her evidence
was to the effect that the only domestic
assets which she and her
husband bought jointly or even individually, were things like linen
and curtains, which they bought for
the river house. The river house
was registered in the name of Mr Joubert only. Save for such items
referred to, according to Mrs
Joubert, her husband did not buy any
assets since they’ve been married. This is in particular in
regards to household appliances
and furniture for the communal place
of residence.
[27] In
regards to the Yamaha music system referred to in the inventory, she
testified to the effect that this
was bought from funds in the
Capitec Bank account. This item was purchased allegedly by herself as
late as 2020 when her existing
music system at the time was struck by
lightning. However, in spite of this being purchased only three years
ago, she could not
provide any documentary proof to show that it was
indeed purchased by herself.
[28]
During cross-examination she was confronted with the contents of her
Particulars of Claim wherein it was
stated that whereas her house was
fully furnished, she and her husband did not have the need for
most
(not any) of Mr Joubert’s property.
[29] As
far as the allegations contained in the Second Claimant’s
Particulars of Claim is concerned to the
effect that she was not
involved in the disposal of Mr Joubert’s furniture but knows
that he sold it out of hand to various
buyers, she was also
confronted with the fact that no confirmatory affidavits have been
forthcoming or produced by any of such
buyers referred to.
Do
the probabilities favour the Second Claimant
?
[30] As
indicated, possession of a movable raises the presumption of
ownership. In this particular instance therefore,
whereas the assets
were in possession of Mr Joubert at his place of residence at the
time of attachment, it is therefore presumed
in favour of the Mr
Joubert, that such assets are indeed his property.
[31]
However, the same presumption can also be raised in favour of Mrs
Joubert, being the Second Claimant, whereas
it is common cause that
at the time of the attachment of such assets, it was also in
possession of the Second Claimant in the communal
home and place of
residence.
[32]
Based on the above, there are therefore two conflicting presumptions
insofar as Mrs Joubert as a claimant
in the interpleader proceedings,
claims to be the owner of the property in regards to which the
presumption of ownership also favours
Mr Joubert. In those
circumstances, the two presumptions are to be weighed against the
other.
[3]
[33] As
correctly argued by Mr
Van der Merwe
, appearing on behalf of
the First Claimant, the onus lies with the Second Claimant, to prove
that she is indeed the owner of the
movable assets.
[34]
The Second Claimant must show on a balance of probabilities that she
and not Mr Joubert, is the owner of
the movable assets concerned.
[35]
The most important factor on the version of the Second Claimant is
that according to her, Mr and Mrs Joubert
had been married to each
other for approximately 22 years. During these 22 years, according to
Second Claimant, her husband did
not buy a single piece of domestic
furniture or appliances for the family. She wishes to paint the
picture to the effect that all
movables held at the primary place of
residence were her property whilst the movable assets of which Mr
Joubert was the owner,
were held at the river house. It is highly
improbable that a husband and wife who have been married for more
than 20 years would
not jointly or individually both acquire such
assets during the course of the marriage. Coupled with this is the
fact that on the
version by the Second Claimant herself, till 2020
when Mr Joubert was sequestrated, it went very well with his business
and his
income. This is supported by the fact that it appears that at
some stage Mr Joubert purchased a 5-bedroom “weekend house”.
It is common cause that this house was subsequently, before the
default judgment had been granted
inter alia
against Mr
Joubert, sold for the substantial amount of R3.8 million. It is
highly improbable that a successful businessman would
not purchase
any domestic movable assets for his family for a period of 20 odd
years.
[36] It
is taken into consideration that it appears that the Second Claimant
also conducts a successful business
as a personal trainer.
Furthermore, it is taken into consideration that the Second Claimant
has taken out a bond for the purpose
of amongst others,
refurbishments. However, on probabilities such bond was largely
utilized to effect renovations to the immovable
property and not to
buy domestic movable assets. Interesting enough, Mrs Joubert did not
provide the amount of such bond. However,
it still remains highly
improbable that for the duration of the marriage, it was only the
Second Claimant who acquired domestic
movable assets for the communal
home and not Mr Joubert.
[37]
The Second Claimant is further confronted with the fact that
according to herself as well as the affidavit
of Mr Joubert, when the
river house was sold, it was sold with the content. This would mean
by implication all the personal belongings
and furniture of which Mr
Joubert was the owner. This is contradicted by Mr Walker in a sworn
affidavit wherein he expressly states
that when he purchased the
property “…
there was no furniture and/or any movable
property of Mr Joubert sold with the property …”
and
that the property was empty when he moved in. This contradiction was
not clarified by either Second Claimant nor, more importantly,
Mr
Joubert, in spite of Second Claimant being in possession of Mr
Walker’s sworn affidavit at the date of Second Claimant’s
Particulars of Claim. Why was Mr Walker not called to testify in this
regard?
[38] On
the version of Second Claimant, she knew at the time that Mr Joubert
sold these assets to different buyers.
However, no additional
evidence had been produced from such buyers in respect of the sale of
Mr Joubert’s movable assets.
There are also no confirmatory
affidavits from such buyers before Court.
The
inference is uavoidably that the assets which were found at the time
of the attachment are those of Mr Joubert taking into account
of all
the circumstances. The only inference to be drawn is that both Mr and
Mrs Joubert were trying to mislead the Court.
[39] In
respect of all the attached assets, not a single shred of documentary
or other evidence had been produced
to Court. The only evidence
before Court is the single evidence by Second Claimant, which is
contained in her affidavit and her
evidence in Court. The only other
evidence is in the form of Mr Joubert and Second Claimant’s
mother, Mrs Siebert. Due to
the fact that the affidavit by Mr Joubert
is contradicted by that of Mr Walker, the credibility of Mr Joubert
is doubtful. As far
as the affidavit by Mrs Siebert is concerned, she
merely confirmed but did not prove Second Claimant’s alleged
ownership
through her affidavit.
[40] I
must agree with Mr
Van der Merwe
’s submission that
Second Claimant did not impress as a good witness. During her
testimony, she was often evasive and vague.
She could also not
provide any reasonable explanation why no documentary proof in
regards to any of the assets which were attached,
had been placed
before Court. This was even in regards to some assets such as the
desktop computer, desk and treadmill which were
according to Second
Claimant utilized in her business as personal trainer. In this
respect, no invoices and no tax returns had
been placed before Court.
[41] As
far as the assets allegedly belonging to the mother of the Second
Claimant is concerned, no interpleader
had been instituted by Mrs
Siebert herself. The same goes for the assets allegedly belonging to
the daughter
[42]
As far as the Second Claimant alleges that certain ornaments were
given to her as a gift this will be accepted
in her favour in respect
of items 44 and 46, whereas on probabilities there will not be
documentary proof of such gifts.
[43] As
discussed, it is for the Court to weigh the two contradictory
presumptions of ownership through possession
in respect of the two
conflicting presumptions in favour of both Mr and Mrs Joubert. In
doing so, the probabilities must be weighed
in the light of all the
evidence before Court.
[44]
Whereas the Second Claimant has failed to provide clear and
satisfactory proof in regards to ownership and
also the probabilities
do not favour the Second Claimant, her claim can therefore not be
upheld.
[45]
Whereas the Second Claimant was substantively unsuccessful in the
interpleader, she is to pay the costs thereof.
Order
:
Therefore, I make the
following order:
1.
First Claimant’s claim is upheld, save for
items 44 and 46.
2.
Second Claimant’s claim is dismissed, save
for items 44 and 46.
3.
Second Claimant is to pay the costs of the
interpleader.
J J F HEFER, AJ
Appearances on behalf of
First Claimant: Adv HJ van der Merwe
Instructed
by: EG Cooper Majiedt
Incorporated
Bloemfontein
On behalf of the Second
Claimant:
Adv AP Berry
Instructed
by: Rosendorff Reitz Barry
Bloemfontein
[1]
[1995] ZACC 1
;
1995 (1) SACR 568
(CC)
[2]
1961 (4) SA 267 (D)
[3]
Law of Evidence, Schmidt, p. 5-42.