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[2013] ZANCHC 17
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Pieters v Klaasten and Another.doc (219/2013) [2013] ZANCHC 17 (14 June 2013)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case number:
219 /
2013
Date heard:
31 / 05
/2013
Date delivered:
14 /
06 /2013
In
the matter between:
ANDRIES
PIETERS
.....................................................
Applicant
and
HENDRIK
KLAASTEN
.........................................
1
st
Respondent
SHERIFF
OF VICTORIA WEST
...........................
2
nd
Respondent
Coram:
Erasmus,
AJ
JUDGMENT
ERASMUS, AJ
[1] The applicant
lodged an urgent application on 8 February 2013 for an order
interdicting the respondent from disposing of a Toyota
Hilux with
registration number BFV 057 NC and VIN number AN563003672 (‘the
vehicle’). The applicant also seeks a cost
order against the
respondents.
[2] The background to
this application appears to be common cause between the parties.
[2.1] Judgment was
granted against the son of the applicant, Nico Jansen (‘the
judgment debtor’) on 30 August 2010,
in the Magistrate’s
Court Victoria West under case number 164/2009. The plaintiff in that
action is the first respondent
in this application. A warrant for
execution was issued on 19 August 2011. On 03 May 2012 the second
respondent attached the vehicle
and 10 sheep at the judgment debtor’s
home.
[2.2] On 05 June 2012
the applicant’s attorney informed the second respondent that
the applicant is the owner of the vehicle
and attached an affidavit
of the applicant in support of this claim. He requested the second
respondent to commence interpleader
proceedings. In this affidavit,
deposed to by the applicant on 04 June 2012, he alleged that he is
the owner of a Toyota Hilux
with registration number BFV 059 NC
and VIN number LN563003677. These numbers differ from those of the
vehicle referred to
in the notice of motion and the vehicle that was
attached by the second respondent.
[2.3] The second
respondent filed an interpleader notice which was served on the first
respondent on 08 August 2012. The first respondent
opposed the
applicant’s claim. The adjudication of the interpleader
proceedings commenced on 19 September 2012 and was finalized
on 09
January 2013. The applicant’s claim to the vehicle was
dismissed on that day.
[2.4] The first
respondent proceeded to advertise the sale in execution to take place
on 8 February 2013. The applicant saw the
advertisement on 18 January
2013. His attorneys contacted the second respondent on 01 February
2013. The second respondent contacted
the applicant on 5 February
2013, informing him that the sale in execution would proceed on 08
February 2013. Neither the applicant
or his attorney, nor the second
respondent contacted the first respondent’s attorney between 18
January 2013 and 08 February
2013.
[2.5] The applicant’s
attorney only phoned the first respondent’s attorney on 08
February 2013, informing him that they
intend lodging an application
for the stay of the sale in execution. The first respondent’s
attorney responded in writing
on 08 February 2013, informing the
applicant’s attorney that the applicant’s claim was
dismissed on 09 January 2013
and that the applicant did not appeal
against that decision and that the sale in execution would proceed
unless he is presented
with a court order directing otherwise.
[2.6] The applicant
proceeded to lodge this application on 8 February 2013. The papers
were served on the first respondent’s
attorney by means of
facsimile transmission. The second respondent provided an undertaking
not to proceed with the sale in execution
and the application was
postponed. The first respondent filed opposing papers and the
applicant filed a replying affidavit.
[2.7] The first
respondent’s attorney attached to the opposing affidavit, filed
on 14 February 2013, the warrant of execution,
notice of attachment
and return of the second respondent, the letter by the applicant’s
attorney informing the second respondent
of the applicant’s
claim to the attached vehicle and the applicant’s affidavit in
support of the claim.
[3] During the
adjudication of the interpleader proceedings on 19 September 2012,
the applicant submitted documents in support of
his claim which
referred to registration and VIN numbers which differed from those
referred to in his affidavit of 04 June 2012.
The proceedings were
postponed to 09 January 2013.
[4] On 09 January 2013
the applicant presented a registration certificate in respect of
vehicle with registration number BVF 057
NC (the vehicle) and VIN
number LN563003672. It appeared from this document that this vehicle
was registered in his name on 19
October 2012. The magistrate
dismissed the applicant’s claim on 09 January 2013. It only
became clear that the vehicle that
had been attached was actually
registered in the applicant’s name on 19 September 2012, when
the replying affidavit and annexures
‘A1’ – ‘A7’
were filed,
[5] It is alleged in
the opposing affidavit, filed on behalf of the first respondent, that
the interpleader proceedings were postponed
on 19 September 2013 on
request of the applicant. On that day he informed the court that the
vehicle was not registered in his
name. The reason for the
postponement was to enable the applicant to provide proof of his
ownership and present proof that he purchased
the vehicle on 09
January 2013.
[6] The applicant
alleges that he again produced his registration documents on 09
January 2013, but the Magistrate, Victoria West,
refused to consider
these and rejected his evidence unfairly and without granting
reasons. He was not given an outcome of the hearing.
The first
respondent disputes these allegations and states that the magistrate
gave reasons for the dismissal of the claim in the
presence of all
persons present at the proceedings.
[7] In his founding
affidavit the applicant attached, as annexure AP1, a document to
which he referred to as the registration documents,
as proof of his
ownership of the vehicle. This document is not the registration
papers, but a document reflecting the particulars
of the vehicle and
the fact that a licence was issued on 19 October 2012. The document
does not reflect who the owner is, but it
appears to be addressed to
A Pieters, Jansenville 301, Britstown. The particulars of the vehicle
referred to therein correspond
with those of attached vehicle. The
VIN number differs from that of the vehicle referred to in the notice
of motion. I accept though
that this difference is due to a
bona
fide
error.
[8] The applicant
denies that his son, the judgment debtor, was ever the owner of the
vehicle. To his replying affidavit the applicant
attached, as
annexures ‘A1’ to ‘A7’, the Enatis resport of
‘Motor Vehicles all Owners Query’
in respect of the
vehicle. This report appears to have been generated on 20 February
2013. From this report it appears that the
previous owner(s) of the
vehicle was/were DE AAR MEULE (Pty) Ltd and JA van der Bijl. The
current owner appears to be the applicant
and the ownership date is
stated as 19 September 2012.
[9] The applicant
stated in his founding affidavit, deposed to on 8 February 2013, that
it is his intention to appeal the order,
if any, that was granted by
the magistrate in the interpleader proceedings and that his attorneys
‘are instructed to proceed
with taking of the necessary steps
to initiate the necessary process for lodgment of an appeal’.
He further stated that his
attorneys have already requested the
necessary documents from the clerk of the court and refers to
annexure ‘AP 3’.
This a letter by his attorneys in
Kimberley, dated 6 February 2013, in which the ‘interpleader’
and judgment were requested
from the clerk of the court. The summons
in terms of section 69(1) of Act 32 of 1944 (interpleader) and, what
appears to be a record
of proceedings of 09 January 2013, were
attached to his founding affidavit. It appears from these documents
that the applicant’s
claim to the vehicle was dismissed on 09
January 2013. There is no further reference in the papers to the
appeal, save for these
averments.
[10] From the
applicant’s founding affidavit it appears as if he seeks relief
in the form of an interlocutory interdict. He
requests the suspension
of the warrant of execution as a temporary protective measure pending
the appeal of the outcome of the
interpleader proceedings. The relief
sought in the notice of motion is for an order interdicting the
respondent from disposing
of the vehicle and thus a final interdict.
During argument at the hearing of the application on 31 May 2013,
counsel for the applicant
sought an amendment to the notice of
motion. Counsel for the first respondent objected to the proposed
amendment. After hearing
argument from both parties the application
for the amendment was refused. I do not deem it necessary to deal
with the reasons for
the refusal of amendment as the refusal will
have no bearing on the outcome of the application, as will appear
from the reasoning
below.
[11]
The requirements for a final interdict are set out in
Setlogelo v
Setlogelo
1
,
which is to this day the leading case on the requirements for a final
interdict.
The
applicant must establish
a
clear right, a threat to breach such right (in the case of a
prohibitory interdict) and that he has no alternative remedy.
[12]
In respect of an interlocutory interdict, the applicant needs only to
establish
a
prima
facie
right
and, provided certain other requirements are met. In addition
thereto, the applicant needs to establish a well grounded
apprehension
of irreparable harm if interim protection is not
afforded, that the balance of convenience favours him and that he has
no other
adequate remedy.
2
[13]
The interlocutory interdict is a provisional order designed to
protect the rights of the complaining party pending an action
or
application to be brought by him to establish the respective rights
of the parties.
3
It
enforces the
prima
facie
right
for a period of time, at the end of which a clear right must still be
proved and, failing which, the interlocutory interdict
will be
discharged. The granting or refusal of an interlocutory interdict
lies in the
exercise
of judicial discretion by the court. In exercising this discretion,
the court must take account of the balance of convenience in
relation
to both the applicant and the respondent and also any potential
prejudice to third parties.
[14] The proper
approach of a court when considering whether an applicant has
established a
prima
facie
right,
is to take into account the applicant’s prospects of success in
relation to whether or not it is likely that the applicant
will
ultimately be able to show a clear right.
This
entails that the applicant must persuade the court that the facts set
out by the applicant, together with the facts set out
by the
respondent which the applicant cannot dispute and taking into account
the inherent probabilities, will entitle him to the
final relief. The
facts set out by the respondent, in contradiction, must then be
considered. If the applicant’s case is
open to serious doubt,
he cannot obtain the relief.
4
The legal position was
summarized by Ogilvie Thompson J in
Gool
v Minister of Justice
5
“
In my
view the criterion on an applicant’s own averred or admitted
facts is: should (not could) the applicant on those facts
obtain
final relief at the trial.”
[15]
In
casu
,
this means that the applicant must show, on his own or admitted
facts, that there is a reasonable prospect that will be successful
on
appeal. Integral to the considerations for granting the interlocutory
interdict, is whether the applicant had shown that proceedings
which
address the principal dispute between the parties (that is the
appeal), are intended or pending.
6
[16]
The applicant has neither proved a clear
right, nor has he proved a
prima facie
right, which entitles him to final or
interlocutory relief in this matter.
[16.1] The applicant
was neither in possession of the vehicle when it was attached, nor
was he the owner of the vehicle at the time.
He only became the owner
of the vehicle long after the judgment and attachment.
[16.2] There is no
confirmatory affidavit in respect of the ownership of the vehicle by
the applicant’s son who is the judgment
debtor and in whose
possession the vehicle was when it was attached. No such evidence was
presented during the interpleader proceedings.
[16.3] There is no
confirmatory affidavit of the previous owner or contract in respect
of the sale of the vehicle to the applicant.
No such evidence was
presented during the interpleader proceedings, despite the applicant
having been granted a postponement to
obtain such evidence.
[16.4] From the
registration and/or licence document, as well as the eNatis-report,
the applicant only became the owner of the vehicle,
at best for the
applicant, on 19 September 2012. That is more than two years after
the judgment date, more than four months after
the vehicle was
attached and more than three months after the applicant informed the
second respondent of his alleged claim to
the vehicle.
[16.5] The applicant’s
claim to the vehicle was considered and dismissed in the Magistrate’s
Court, Victoria West. The
second respondent has a judgment in his
favour, which has not been overturned. The applicant has not shown a
prospect of success
on appeal and/or that the magistrate’s
dismissal of his claim in the interpleader proceedings will be set
aside.
[16.6] The applicant
has failed to show that the appeal has been noted, prosecuted and
that it is pending. The time periods prescribed
in respect of civil
appeals from the lower courts have lapsed.
[16.6.1]
Rule
51 of the rules regulating the
conduct of the proceedings of the Magistrates' Courts of South
Africa, regulates appeals in
civil cases and sub-rule (1) to (4) read
as follows:
“
(1)
Upon a request in writing by any party within 10 days after judgment
and before noting an appeal the judicial officer shall
within 15 days
hand to the registrar or clerk of the court a judgment in writing
which shall become part of the record showing
—
(a) the
facts he or she found to be proved; and
(b) his
or her reasons for judgment.
(2) The registrar or
clerk of the court shall on receipt from the judicial officer of a
judgment in writing supply to the party
applying therefor a copy of
such judgment and shall endorse on the original minutes of record the
date on which the copy of such
judgment was so supplied.
(3) An appeal may be
noted within 20 days after the date of a judgment appealed against or
within 20 days after the registrar or
clerk of the court has supplied
a copy of the judgment in writing to the party applying therefor,
whichever period shall be the
longer.
(4) An appeal shall
be noted by the delivery of notice, and, unless the court of appeal
shall otherwise order, by giving security
for the respondent's costs
of appeal to the amount of R1 000: Provided that no security shall be
required from the State or, unless
the court of appeal otherwise
orders, from a person to whom legal aid is rendered by a statutorily
established legal aid board.”
[16.6.2]
Rule
50 of the Uniform
Court Rules regulates civil appeals from magistrates' courts and
sub-rule (1) reads as follows:
“
(1)
An appeal to the court against the decision of a magistrate in a
civil matter shall be prosecuted within 60 days after the noting
of
such appeal, and unless so prosecuted it shall be deemed to have
lapsed.”
[16.7] As appears from
paragraph [16.6]
supra
, the applicant has not complied with
the court rules in any respect. Even if the applicant now intends
proceeding with an appeal,
he will have to apply for condonation for
the non-compliance with the rules. He will have to show that he has a
reasonable prospect
of success on appeal. Given the long delay and
the facts of this matter, I am of the view that there are no such
prospects.
[17] The first
respondent’s claim and the execution process have been delayed
for a long period of time. It is in the interest
of justice and in
the interest of the first respondent that the law takes it course and
the matter be finalized.
[18] It was not
submitted that the costs should not follow the outcome of the
proceedings. There is no reason why the general principal
in this
regard should not be followed. I make the following order:
THE APPLICATION IS
DISMISSED WITH COSTS.
______________________
SL ERASMUS
ACTING JUDGE
NORTHERN CAPE
DIVISION
For the
Applicant:
Adv Jankowitz
Mjila & Partners,
Kimberley
For the First
Respondent:
Adv Stanton
Engelsman Magabane Inc,
Kimberley
1
1914
AD 221
; V&A Waterfront Properties (Pty) Ltd v Helicopter and
Marine Services (Pty) Ltd
2006 (1) SA 252
(SCA)
2
Webster
v Mitchell
1948 (1) SA 1186
(A) at 1189; Gool v Minister of Justice
1955 (2) SA 682
(C) at 688D-E.
3
Airoadexpress
(Pty) Ltd v Chairman, Local Road Transportation Board, Durban
[1986] ZASCA 6
;
1986
(2) SA 663
(A) at 681D-F
4
Webster
supra
at
1189
5
Supra
at 688D-E
6
Saidex
v The Minister of Minerals and Energy (49/10)
[2011] ZASCA
102
(1 June 2011) par [7]