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[2016] ZALCCT 37
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Sheriff of the Court for the District of Belville v Haywood and Others (C80/2016) [2016] ZALCCT 37 (27 October 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case no: C80/2016
Not
Reportable
In
the matter between:
SHERIFF
OF THE HIGH COURT
FOR
THE DISTRICT OF
BELVILLE
First Applicant
and
BEULA
LORRAINE
HAYWOOD
Second Applicant
TEBINKOSI
ELLIOT
NQUMA
Claimant
SOUTH
AFRICAN SECURITY COMPANIES
ASSOCIATION
Respondent
Heard:
23 June 2016
Delivered:
27 October 2016
JUDGMENT
RABKIN-NAICKER,
J
[1]
The citation of the parties by the applicant in this matter is novel.
In this judgment I refer to the citation of ‘second
applicant’
as the ‘first claimant’, and that of ‘claimant’
as the ‘second claimant’.
Further, the Sheriff has
not made mention of the close corporation of which the second
claimant is sole member in his citations.
This interpleader came
before Van Niekerk J on the 24 April 2016 when he ordered that the
matter be postponed until the 23 June
2016, in order for the first
claimant (Haywood) to file answering papers and for replying papers
to be filed on behalf of the second
claimant (Nquma). Costs for that
day were reserved. The issue of citations was not raised in the
proceedings before court
by the parties or by Van Niekerk J.
[2]
It was averred by Nquma in an affidavit dated 28 January 2016 that
all items in the Sheriff’s inventory belong to Ilizwe
Armed
Security CC of which he is the sole member. He further avers that the
address where the applicant Sheriff attached the goods,
pursuant to a
warrant issued out of this court under case number C80/2016, is the
address where the close corporation’s offices
are situated.
[3]
Nquma avers that ownership of 5 of the 13 items attached cannot be
substantiated by vouchers. Vouchers are attached to his affidavit
in
respect of the remaining goods. The reason given for his failure to
attach vouchers for 5 of the items is that the said items
were
brought more than 10 years ago; and that he has moved premises and
changed accountants since they were purchased. He claims
that all of
the goods listed are the property of Ilizwe Armed Services CC which
is a separate entity from the respondent, the erstwhile
employer of
Haywood, the South African Security Companies Association.
[4]
The answering affidavit deposed to by Haywood reads as follows:
“
The employer
failed to follow due process by applying for rescission or review of
the said award under the abovementioned case number,
within the
prescribed timeframes as allowed for in law.
Only once the goods were
removed, did the employer approach the “umpteenth”
attorney for further assistance. The employers
have not given any
legal basis for their failure to pay, after making numerous promises
to pay commitments.
During my employment and
in dealing with invoices and payment, the employer never separated
the individual Tembinkosi Elliot Nquma
from Sasca and vice versa.
The goods attached and
removed are the property of SASCA and all instructions regarding
payments, orders and corporate decisions
were given and taken by
Tembinkosi Elliot Nquma.
The 2
nd
Applicant humbly submits and pray that the court remove the corporate
veil that the claimant is using to frustrate the process,
and grant
the award plus cost and interest as per the filed CCMA arbitration
award.”
[5]
In reply, Nkutha stresses that Haywood does not challenge any of the
annexures to his affidavit which prove ownership of the
certain of
the goods but merely provides the court with a bold statement that
the removed goods are the property of the respondent
employer. It is
apparent from an annexure to Haywood’s affidavit that the
respondent is a non-profit organization formed
inter alia to unite
and promote security employers who have been previously disadvantaged
and that Ilizwe Security Services is
a member of the Association.
[6]
The first claimant’s answering papers amount to a bald denial
of the second claimant’s claim to ownership, and do
not raise
any real dispute of fact
[1]
in
relation to ownership of the goods attached. On this basis I find
that the second claimant, Nkutha has discharged the onus of
proof
[2]
that the attached goods belong to Ilizwe Armed Security Services CC,
of which he is the sole member. I do not consider it apposite
to
order any costs in this matter, given that the first claimant is an
employee seeking to execute on an arbitration award in her
favour.
[7]
I therefore make the following declaratory order:
Order
1.
The goods attached by the Applicant Sheriff are the property of
Ilizwe Armed
Security Services CC (registration number
2001/036657/23) of which Teminkosi Elliot Nquma is the sole member.
_________________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances:
First
Claimant: In person
Second
Claimant: Mirah Ranchod Associates
H. Rabkin-Naicker
Judge of the Labour Court
Appearances:
Applicant:
JA Nortje instructed by Heidi van der Meulen Attorneys
Respondents:
T.J Golden S.C. instructed by State Attorney
[1]
Soffianti
v Mould 1956 (4) SA 150 (E)
[2]
The onus is on the interpleader claimant in interpleader proceedings
see Gillett v Pickard and Another, 1927 AD at p. 158; Sogadi
v
Sutton Bros., 1931 (1) P.H. J. 3; Persotam v Minty, 1943 T.P.D. at
p. 372; Hulumbe v Jussob, 1927 T.P.D. at pp. 1008, 1011.