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[2016] ZAGPPHC 1011
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Sheriff of the Supreme Court, Pretoria East v Pierre Pienaar NO Janare Trust and Others, In re: Silverlakes Home Owners Association v Pienaar (80178/15; 76672/2014) [2016] ZAGPPHC 1011 (7 November 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
N0:80178/15
7/11/2016
Date
of hearing: 31 October 2016
In
the matter between:
SHERIFF
OF THE SUPREME COURT, PRETORIA
EAST
Applicant
and
PIERRE
PIENAAR N.O. JANARE TRUST
First
Claimant/Plaintiff
PIERRE
PIENAAR
N.O.
Second
Claimant/Plaintiff
AFRICAN
THATCH DEVELOPMENT CONSTRUCTION CC
PIERRE
PIENAAR N.O. PIENAAR FAMILY TRUST
Third
Claimant/Plaintiff
In
re:
CASE
NO: 76672/2014
SILVERLAKES
HOME OWNERS ASSOCIATION
Execution
Creditor/Defendant
and
PIERRE
PIENAAR
Execution
Debtor
JUDGMENT
BRENNER
AJ
1.
This case involves interpleader
proceedings under Rule 58 of the Uniform Rules of Court.
2.
The matter finds its genesis in
two costs orders, granted in this Court, against Pierre Pienaar
("Pienaar"), in favour
of the Silver Lakes Home Owners
Association, ("Silver Lakes"). The costs were taxed,
respectively, both on 7 August 2015,
for R25 534,76 and, R44 673,13
under case no 76672/2014.
3.
Two warrants of execution
against movable property were duly issued on 21 August 2015, and this
culminated in the attachment of
goods by the sheriff on 25 August
2015, at the residence of Pienaar, at […] S. Avenue,
Silverlakes, Pretoria.
4.
On 4 September 2015, Pienaar
deposed to an affidavit (referred to below as "the interpleader
affidavit"), in which he
alleged that all of the assets under
attachment, identified in a detailed inventory, belonged to third
parties. These third parties
were the Janare Trust, African Thatch
Development Construction CC ("ATD") and the Pienaar Family
Trust. Pienaar produced
letters of authority to prove that he was a
trustee of the Janare Trust, together with one Johann Jordaan, and
letters of authority
to prove he was the sole trustee of the Pienaar
Family Trust. A copy of a Searchworks report revealed that he was the
sole member
of ATD.
5.
Pienaar proceeded to attach
supporting vouchers in the form of invoices and the like, to prove
ownership of certain of the attached
items in favour of the Janare
Trust, ATD and the Pienaar Family Trust, the objective being to prove
ownership in their favour.
It merits mention that no documents were
produced to establish the identity of the party or parties who paid
for the goods.
6.
In his affidavit, Pienaar
concludes:
"Accordingly
I submit that all the
assets
as
contained in the
sheriff's notice of attachment were all purchased and are accordingly
owned by the abovementioned entities and
that none of the attached
assets
are
owned by myself in my personal capacity
as
cited in the
Plaintiff's Writ of Execution.
"
7.
On 5 October 2015, the sheriff
issued an interpleader notice under Rule 58, supported by the
affidavit of Magda Scheuer as deputy
sheriff in the office of the
sheriff Pretoria East. The notice quoted the Janare Trust, ATD and
the Pienaar Family Trust as the
three claimants.
8.
On 27 October 2015, Silver Lakes
as execution creditor served particulars of claim, supported by the
affidavit of Andri du Toit,
attorney employed by the execution
creditor's attorney, Christo Bekker Inc.
9.
Succinctly summarised,
allegations are raised that, at least nine of the invoices relied
upon by Pienaar in his interpleader affidavit
are false, and/or
forged. Andri du Toit challenges the invoice of Turca House Deco
produced by Pienaar (PP3), following personal
enquiries with the
owner of Turca House Deco, Veysi Gune. An affidavit is produced by
Manuel dos Santos, employee of La Rochelle
Furnishers, to confirm the
alleged forgery of annexure PP5 to Pienaar's affidavit. Melissa
Sanderson, an employee of Galata Eksport
Chain refers to annexures
PP17, PP18, PP19, PP20 and PP21 of Pienaar's affidavit, and confirms
that it is not the practice of Galata
to complete the details of its
clients on its invoices.
10.
Moreover, it is contended that
the invoices of Solwil Prop Investments CC ("Solwil") (PP6
and PP11) are also allegedly
false, as suggested by a Searchworks
report which indicates that it is a property investment company.
It is disputed that
Solwil sells household goods and kitchen
appliances, as suggested by PP6 and PP11.
11.
The disputes raised by the
execution creditor concerning ownership of the items described in
nine invoices relied on by Pienaar
are factually material and
not capable of adjudication on the papers before Court.The issues
involve serious allegations
of fraud and forgery and warrant
referral to trial.
12.
The provisions of Rule 58(6)(a)
cannot apply in practice and are anomalous. In this Rule, the
Court may at the hearing "then
and there" adjudicate upon
such claim after hearing such evidence as it deems fit. The Court is
accorded no powers under Rule
58 to determine the procedural steps to
be taken in advance, and precursory to the hearing of evidence.
Moreover, the Rule fails
to specify whether interpleader proceedings
should be decided by action, not motion. Owing to the paradoxical
terms of Rule 58(6)(a),
the execution creditor was justifying
in its belief that it could enrol this case on the opposed motion
roll, for a summary
hearing. There is no basis for penalising it for
doing so.
13.
In casu, there is no pragmatic
avenue available other than to refer
the case to trial for the
hearing of evidence by all interested
parties, certain of whom may have to be joined to the proceedings. By
the very nature of
interpleader proceedings, one may irresistibly
infer that material disputes of fact will indeed arise which are
incapable of being
adjudicated upon by a motion court on "there
and then" basis.
14.
In terms of Rule 58(6)(b), I
direct that the three claimants shall be made the plaintiffs, as the
goods were found in the judgment
debtor's possession. The
execution creditor is the defendant. The citation of the other
parties remains, that is, the sheriff,
as interpleader applicant, and
Pierre Pienaar as the execution debtor. The headings to this judgment
have been adjusted to conform
with this direction.
15.
Since the quantum of the claims
falls squarely within the jurisdiction of the Magistrates Court, all
costs associated with this
litigation should be confined to the
Magistrate's Court scale. The parties would be well advised to agree
to the transfer of this
case to the Magistrates Court having
jurisdiction, in terms of Rule 39(22) of the Uniform Rules, so as to
contain legal costs,
considering the low quantum of the execution
creditors claims.
16.
The following order is made:
14.1.
the issues in this case are
referred to trial;
14.2.
the above claimants are declared
to be the first, second and third plaintiffs;
14.3.
the execution creditor is
declared to be the defendant;
14.4.
the interpleader affidavit of
Pierre Pienaar on behalf of the claimants/plaintiffs is declared to
be a simple summons;
14.5.
within 15 days from the date of
this order, the claimants/plaintiffs shall serve a declaration on all
parties to the action;
14.6.
the Uniform Rules of this Court
shall apply to all further process thereafter;
14.7.
the costs of this application
shall be costs in the cause of the action, subject expressly to all
such costs being confined to costs
taxable on the Magistrates Court
scale.
_______________________
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT
Counsel
for Applicant:
Adv. FF Muller
Instructed
by:
Hack Stupel & Ross
Counsel
Respondent:
Adv JA Venter
Instructed
by:
EW Serfontein & Associates Inc
Counsel
for Plaintiff/Execution Creditor:
Adv S. Mentz
Instructed
by:
Christo Bekker Inc.
Date
of Judgment:
2 November 2016