About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 493
|
|
Sheriff, Bloemfontein West v Majiedt N.O and Another (1935/2021) [2023] ZAFSHC 493 (21 December 2023)
IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No: 1935/2021
Reportable: YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
In
the matter between:
SHERIFF,
BLOEMFONTEIN WEST
Applicant
and
DONOVAN
THEODORE MAJIEDT N.O.
First Claimant
MOSELANE
FAMILY TRUST
Second Claimant
CORAM:
HEFER AJ
HEARD
ON
:
20 OCTOBER 2023
DELIVERED
ON:
21
DECEMBER
2023
[1]
“
A
rebuttable presumption of law creates a provisional assumption of a
fact which compels a court a reach a conclusion in the absence
of
evidence to the contrary”
.
[1]
[2]
In
S
v Zuma and Others
[2]
,
it was held that rebuttal of a presumption is “…
on
proof on a balance of probabilities”
.
[3]
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
on the ground
that he has bought such movable from a person whom he has allowed to
retain possession of it must rebut that presumption
by clear and
satisfactory evidence. The fact that he has bought a thing which does
require himself, but allows the seller to use,
requires full
explanation, and in the absence of such explanation a Court is
justified in drawing its own reasonable inferences”
.
[3]
[4]
In
Ebrahim
v Deputy Sheriff Durban and Another
[4]
,
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 a
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 grave disadvantage because
he is not in a position to adduce evidence to rebut that of a
claimant who says that the disputed
property is his, although he
agreed to let the judgment debtor have possession of it. Apart from
other considerations, the Court
would no doubt in such a case
require, the claimant to produce clear and satisfactory proof of his
ownership. On the other hand,
where the source of rebuttal evidence
is available to and is utilised by the party who disputes the
claimant’s claim, the
position appears to be different; for
then the disadvantage to which I have referred largely disappears. I
might mention one further
factor which might of particular importance
in deciding whether the claimant’s evidence should be
approached with more than
normal caution, and that is the nature of
the article of which the ownership is in dispute.”
[5] The First
Claimant, basis his claim against the attached movable property, on
the fact that such property
was found in possession of the judgment
debtor, being Mr Moselane.
[6] The Second
Claimant, being the Moselane Family Trust (“
the Trust”
),
basis its claim on the fact that the property concerned, was attached
in the immovable property of which the Second Claimant
is the
registered owner.
[7] Both
claimants therefore rely on the presumption of ownership referred to.
[8] According
to Mr
R van der Merwe
appearing on behalf of the First
Claimant, whereas the goods, at the moment of seizure, were in the
judgment debtor’s possession,
its possession implied a
prima
facie
title in him which enures to the benefit of the execution
creditor, i.e. the First Claimant. The onus, as argued, rests on the
Motselane Family Trust to rebut the
prima facie
implied title
of Mr Motselane which enures the First Claimant.
[9] It was
further argued on behalf of the First Claimant, that the Second
Claimant does not assert that
there is any formal defect in the
judgment which the joint liquidators obtained against the judgment
debtor nor does the Second
Claimant contend that there is any formal
defect in the writ of execution upon which the attachment was
effected or the execution
thereof by the Sheriff. In the premises
therefor, it must be accepted that the attachment of the assets in
question is valid and
that the joint liquidators have a valid claim,
in terms of the judgment granted in its favour to such assets.
[10] Mr
Mohono
,
appearing on behalf of the Second Claimant, however argued that
whereas Mr Motselane, being the judgment debtor, is one of the
trustees of the First Claimant, the occupation of the immovable
property by Mr Motselane was at all material times as a result
of him
being a trustee. Mr
Mohono
asked that the Court should come to
the conclusion that whereas the property where the attached assets
were found belongs to the
Trust, being the Second Claimant, the
immovable property including the assets themselves, also belong to
the Trust. According to
Mr
Mohono
therefore the possession
which Mr Motselane had over the property
and the assets
, was
due to his office as a trustee.
[11] Mr
Mohono
referred me to the matter of
Dhlamini
v Toms
[5]
where the Court confirmed that it was compelled to apply the well
set-off rule of law that possession raises a rebuttable presumption
of ownership in the absence of the proof to the contrary.
[12] I
was further referred to the matter of the Rhodesian High Court in
Massey
Harris Company Ltd v Erasmus
[6]
,
in support of the Second Claimant’s argument. In that matter
however the following facts, which differentiates it from the
present
matter, were before Court:
“
The
notice that accepted the evidence that there were no evidence that
the cattle attached were found in the judgment debtor’s
possession. On the contrary, they were attached on the farm to which
the claimant had registered a title, and the respondent informed
the
messenger before judgment that the cattle were her own property. The
fact that the cattle were in her possession upon her own
farm raising
the presumption of ownership which it was incumbent upon any person
claiming ownership on behalf of any other person
against her to
establish with clear and satisfactory evidence. See Zandberg v Van
Zyl
1910 AD 268
, Gobo v Davies
1915 EDL 139.
The presumption is
strengthened in his case by the fact that the cattle on her farm were
branded with her own registered brand.”
[13] In the present matter
however, it is common cause that the judgment debtor, Mr Motselane
was residing in the immovable
property concerned and the assets were
de facto
in his possession at the time of the attachment. In
that regard, the presumption of ownership vesting in him lends
support to the
First Claimant’s claim. In rebuttal to this
presumption, the Second Claimant put up the presumption of
possession, i.e. that
because the movable assets were attached in the
immovable property of which the Second Claimant is the registered
owner, such assets
are also those of the Second Claimant. Unlike in
the
Massey Harris
-matter, Second Claimant has not advance any
proof or evidence
aliunde
in totality to prove that such
assets are indeed the property of the Trust. There is not a single
shred of evidence before Court
to show that these assets were indeed
purchased by the Trust. The fact that such property was indeed found
in the immovable property
of which the Trust is the registered owner,
does not mean that it is Trust assets as well.
[14] As stated in the
authorities referred to, it is necessary for the Second Claimant that
“
clear and satisfactory proof of the trust ownership should
be provided”
.
[15] Whereas the First
Claimant, being the judgment creditor, is at a grave disadvantage
because he is not in a position
to adduce evidence to rebut the
presumption relied upon by the Second Claimant, the Court should,
with reference to the matter
of
S v Zuma
(
supra
),
consider whether the presumption as raised by the Second Claimant,
was rebutted by the First Claimant. One should consider the
nature of
the assets concerned.
[16] It
is trite law that it is a trustee’s general duty to conserve
and maintain trust property.
[7]
[17] Without exception,
all the assets concerned cannot be regarded as assets which is
necessary for the maintenance
nor the preservation of the trust
property being the immovable property in particular the residence of
the judgment debtor. Such
assets consist, amongst others, of
television sets, washing machines, a lounge suite and fridges. These
assets are generally utilised
for domestic purposes and not for the
maintenance and renovation of the trust property. On a balance of
probabilities, it can therefore
not be held that such assets are
indeed the property of the Trust. Coupled with this, is the fact that
as stated, the Second Claimant
has failed in totality to produce any
evidence to prove that such assets are indeed the property of the
Trust.
[18] Whereas, as argued by
Mr
Van der Merwe
, the Second Claimant did not assert that
there is any form or defect on the judgment which the joint
liquidators obtained against
the judgment debtor, nor did the Second
Claimant contend that there is any form or defect in the writ of
execution upon which the
attachment was effected or the execution
thereof by the Sheriff, it must be accepted that the attachment of
the assets in question
is valid and that the joint liquidators have a
valid claim in terms of the judgment granted in its favour to such
assets.
[19] Whereas the Second
Claimant has failed to establish its claim in the interpleader
proceedings, the Second Claimant
should be held liable for the costs
in respect of the interpleader proceedings.
ORDER
:
Therefore, I make the following order:
1.
First Claimant’s claim against the
asset contained in the Deputy Sheriff’s inventory of items
attached under return
35999 dated 30 June 2023, is upheld.
2.
Second Claimant’s claim is dismissed.
3.
Second Claimant is to pay the cost of the
interpleader proceedings.
J J F HEFER, AJ
Appearances on
behalf of First Claimant:
Adv R van der Merwe
Instructed
by:
Hendre
Conradie Incorporated
(Rossouws
Attorneys)
Bloemfontein
On behalf of the
Second Claimant:
Adv K P Mohono
Instructed
by:
T Ndoi
Attorneys Inc.
Bloemfontein
[1]
Wesbank v Ralushe 2022 (2) SA 626 (ECG)
[2]
1995 (1) SACR 568 (CC)
[3]
Zandberg v Van Zyl
1910 AD 302
at 308.
[4]
1961 (4) SA 267
(D)
[5]
1929 (…..) SA 150 (NPD)
[6]
1941 SL 160
[7]
Honore: The South African Law of Trusts, 3
rd
edition, p. 230