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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Nos: 21464/2018 and
8526/2019
In the matter between:
THE SHERIFF OF THE HIGH COURT,
CAPE TOWN WEST Applicant
and
TREVOR NORMAN FOSTER Execution Creditor
and
CLEM PATRICK KIRST Execution Debtor
IN RE:
NTSWAKI SEHUNELO First Claimant
SHARMN NATASHA KIRST Second Claimant
BERLIN KIRST Third Claimant
Coram: Justice J Cloete
Heard: 10, 11, 12 June 2024 and 16 October 2024
Delivered electronically: 28 November 2024
JUDGMENT
CLOETE J:
Introduction
[1] These are interpleader proceedings in terms of uniform rule 58, where the
Sheriff is the applicant and the execution creditor (Mr Foster) and second
claimant (Ms Kirst) both lay claim to the value of movable property attached in
execution. The first claima nt’s goods attached were released by agreement
(she was the lessor of […] M[…] Road, Camps Bay, where Ms Kirst resided at
the time of one of the attachments). The third claimant, who is the execution
debtor’s mother and Ms Kirst’s former mother -in-law, ha s not participated
since she lacks the cognitive ability to do so. Ms Kirst and the execution
debtor (Mr Kirst) were previously married to each other in community of
property and were divorced on 14 October 2014.
[2] Mr Foster, and Mr and Ms Kirst, were previously neighbours who lived across
the road from each other. Various disputes arose between Mr Foster and
Mr Kirst in relation to Mr Kirst’s alleged behaviour. These disputes culminated
in litigation between the two of them in this court. As a result of that litigation
Mr Foster obtained three costs orders against Mr Kirst, and Mr Kirst one costs
order against Mr Foster.
[3] The following bills of cost were taxed in favour of Mr Foster, namely: (a) on
8 October 2020 under case number 17605/2018 in the sum of R149 389.62;
(b) on 8 October 2020 under case number 21464/2018 in the sum of
R37 603.65; and (c) on 12 May 2021 under case number 21464/2018 in the
sum of R383 177.51. A bill of costs was taxed in favour of Mr Kirst on 18 May
2022 (seemingly also under case n umber 21464/2018) in the sum of
R109 933.77. After set off, confirmed in writing, the balance still due to
Mr Foster in respect of the third bill of costs, excluding interest , is
R273 243.74, and the net effect of all of this , as far as could be gleaned fr om
the papers, is that Mr Kirst is indebted to Mr Foster in the total sum of around
R460 000 excluding interest.
[4] On about 23 December 2020 the Sheriff executed two warrants of execution ,
in respect of the bills taxed in favour of Mr Foster on 8 October 20 20, at
[…] R[…] Heights, I […] C[…] Place, Camps Bay and […] T[…] Avenue,
Camps Bay. On 4 January 2021, Ms Kirst laid claim to certain of the items
attached. Mr Foster then instituted proceeding s in the magistrate s’ court
against Mr Kirst in terms of s 65 of the Magistrates’ Court Act. 1 The s 65
inquiry was held on 15 June 2022, 21 July 2022, 28 July 2022 and 21 January
2023. Mr Foster did not attend that inquiry but was represented thereat by his
previous attorney of record, Mr Van der Riet.
[5] Between service of the first warrants and th e s 65 inquiry, Mr Foster caused a
further warrant of execution to be issued against Mr Kirst on 21 July 2021 in
respect of the third bill of costs taxed in his favour on 12 May 2021. On
15 May 2023 and 23 June 2023 respectively, the Sheriff executed this warrant
as well, at […] R[…] Heights and Ms Kirst’s rented premises, […] M[…] Road.
[6] Ultimately, of the items attached, Ms Kirst laid claim to 3 motor vehicles,
5 motorbikes/motorcycles, 5 bicycles, a trailer, 6 surfboards, 4 television sets,
4 computers and 2 office desks. Another vehicle attached by the Sheriff, a VW
Polo, is registered in the name of her former mother -in-law, the third claimant.
1 No 32 of 1944.
Ms Kirst does not lay claim to this vehicle although her evidence was that she
purchased it.
[7] Mr Foster and Ms Kirst subsequently agreed to the release of “her” items from
attachment, subject to payment by her of R459 237.08 plus interest thereon of
R94 507.82 to be held in the trust account of her attorney of record pending
determination of the interpleader proc eedings. This agreement was
incorporated in an order granted by Henney J on 22 February 2024, and was
complied with.
The parties’ pleaded cases
[8] Ms Kirst pleaded that she is the owner of all the items to which she lays claim.
She annexed registration docume nts pertaining to the motor vehicles, trailer
and motorbikes, plus supporting documentation evidencing proof of purchase
and payment for most items.
[9] Mr Foster’s pleaded case was that at all material times Mr and Ms Kirst were
in a permanent life partnership, alternatively a universal partnership,
alternatively a partnership in terms of which: (a) they resided together as
husband and wife in a common ho usehold ‘bearing’ income and expenses
jointly; (b) they carried on business together and/or Mr Kirst carried on
business in Ms Kirst’s name; (c) they acquired and held assets jointly but
ostensibly in Ms Kirst's name, alternatively Mr Kirst’s assets, while still owned
by him, were ostensibly placed in Ms Kirst's name; and (d) the purpose of
recording and registering assets in Ms Kirst’s name was effected only ‘…in
order to frustrate the rights of creditors, more particularly’ Mr Foster.
Onus, status of record of s65 proceedings, witnesses and overview of
testimony
[10] Although it was agreed that Ms Kirst bore the duty to begin, the affected
parties (Mr Foster and Ms Kirst) could not agree on who bore the onus. I
return to this later.
[11] No agreement could be reach ed on the status of the record of the s65
proceedings. It was not referred to during Ms Kirst’s testimony and Mr Foster,
as previously stated, had not himself attended that inquiry. Mr Van der Riet
confirmed the accuracy of the record during his evidence b ut given the
absence of any application by Mr Foster in terms of s 3(1)(c) of the Law of
Evidence Amendment Act2 – despite his counsel being alerted to the need for
such an application – that entire record is inadmissible and I thus do not deal
with it.
[12] Ms Kirst testified in support of her claim that most of the items were registered
in her name, or the purchase s had been invoiced to her and paid from her
accounts. This much was not disputed. Furthermore, (a) no evidence was
adduced (including by Mr Foster) of any creditors of either Mr or Ms Kirst
whose rights could have been frustrated, apart from Mr Kirst being indebted to
Mr Foster; and (b) Mr Foster did not adduce any direct evidence in support of
his pleaded case, save for the following. First, Ms Kirst’s affidavit testimony in
unrelated proceedings as well as two confirmatory affidavits to which she had
deposed in the earlier litigation between Mr Foster and Mr Kirst. Second, and
this became common cause , Mr Kirst closed his only bank account holding
R12 000 in credit in October 2019 , and on 12 November 2019 transferred the
Subaru vehicle and the trailer which were later attached into the name of
Ms Kirst.
[13] Mr Foster testified in support of his claim and called two witnesses, namely
the Sheriff who effected the attachments, Mr Ntsibantu, and his previous
attorney Mr Van der Riet. The evidence of these two witnesses was largely of
a formal nature, but also included testimony about what occurred when the
first set of attachments took place in Dece mber 2020 . Given a concession
made by Ms Kirst in cross-examination it is not necessary to deal any further
with their testimony.
2 No 45 of 1998.
[14] Save for the affidavits referred to above, Mr Foster’s case was ultimately
based upon inferences he had drawn from his own o bservations of how the
Kirsts conducted their daily lives while they lived across the road from him;
information he received from Ms Kirst’s estranged brother -in-law, Mr Robert
Wrensch; and what Mr Foster had pieced together from his own investigation.
It is against this background that I turn to deal with the evidence relevant to
the main dispute.
Evidence on the main dispute
[15] Ms Kirst testified that she was born in London, where she also currently lives.
Her parents reside in Monaco. Her father is a multi -billionaire and hotelier.
She first came to Cape Town on holiday in 1995 where she met Mr Kirst and
returned to South Africa later that year after becoming romantically involved
with him. At the time Mr Kirst, who grew up on a farm in Namibia, was
employed in the film industry.
[16] Ms Kirst did not have a work visa and enrolled at a hotel school where she
completed three years of study. For as long as she could remember her father
has paid her a monthly allowance, and this continued, in addition to which,
when she had no funds of her own, her father paid all her other living
expenses, including after she moved in with Mr Kirst and later married him (in
community of property) on 17 November 1998. The couple have two sons
who were born on 22 July 2007 and 13 March 2011 respectively.
[17] In about 2000 the couple moved to the United Kingdom and Mr Kirst started
working for her father. However Mr Kirst and Ms Kirst’s sister (who is married
to Mr Wrensch ) did not get along which caused major problems within the
extended family, in addition to which Mr Kirst did not fit into the corporate
world. They thus returned to South Africa in 2004, initially living with Mr Kirst’s
mother in Camps Bay. However Ms Kirst wanted to enter the property market
and possibly build a hotel herself one day.
[18] She thus purchased a small property at 3 […] L[…] Street, Penzance Estate,
Hout Bay which as far as she knew was registered in her name. From her
evidence it was clear that Ms Kirst was unaware that in South Africa, where
parties are marrie d in community of property, registration of ownership of
immovable property is reflected in the Deeds Registry in their joint names
following the abolition of a husband’s marital power by the Matrimonial
Property Act3 on 1 November 1984. Mr Foster appeared to be unaware of this
as well.
[19] Mr Kirst made no financial contribution to the purchase of that property or the
renovations which followed, but organised the labour required and manned
the site. He was also not remunerated. This arrangement applied to the
subsequent properties purchased and sold to which I refer hereunder.
[20] After the renovation was complete Ms Kirst sold the Hout Bay property and
purchased a townhouse at Woodhead Glen, Camps Bay. Because she did not
have sufficient funds to pay the full asking price, and as a non-resident of
South Africa could not obtain a mortgage bond, the bond was apparently
registered in Mr Kirst’s name. However Ms Kirst serviced all the monthly bond
instalments without any financial assistance from Mr Kirst. This property too
was renovated and thereaf ter sold. After a stint back in Hout Bay, Ms Kirst
purchased a property at 4 […] H[…] H[…] Avenue, Camps Bay, financed also
with a bond. Once it was renovated she rented it out and sold it a few years
later to the existing tenant. She used the proceeds of the sale to settle the
bond and put the rest away in her own savings.
[21] By that stage the family was living (seemingly in accommodation paid for by
Ms Kirst) at 1 […] P[…] Avenue, Camps Bay, next door to Ms Kirst’s mother-
in-law who assisted her with the c hildren. From her evidence it appears that
she and her former mother-in-law have a close relationship which continues to
this day. (Ms Kirst also testified that she purchased the VW Polo for her and
registered it in her name on 4 November 2022, despite the latter’s declining
3 No 88 of 1984.
mental health and her prior admission to a care centre in May 2022, since she
wanted her mother -in-law to retain a measure of independence and would
drive around with her in the VW Polo in the Camps Bay area).
[22] Ms Kirst then purchased four plots in Milnerton which she believed to be an
up-and-coming area and where a number of her friends lived. The plots were
acquired in an entity, Oribel Properties (Pty) Ltd (“Oribel”), and they were built
through West Cape Developers with Mr Kirst’s involvement being the same as
before. The houses were built in stages and the overall cost financed both
from Ms Kirst’s savings and ‘a little bit of help’ from the bank. Mr Kirst was
neither a director nor shareholder of Oribel.
[23] Ms Kirst subsequently sold three of the four Milnerton properties, retaining
2[…] A[…] Crescent, Milnerton for the family to live in (they moved there in
about 2011 or 2012). Thereafter the marriage between Mr and Ms Kirst broke
down and they divorced on 14 October 2014 . According to Ms Kirst their
relationship changed after their younger child was born in 2011. In addition
her sister and brother -in-law moved into the area and the family infighting
started up again. In her words:
‘It just got too much. I walked away from my sister a nd I walked away
from Clem and I moved back to Camps Bay… I left him in A […]. He
had nowhere else to go. He hadn’t been working for several years. He
had no money so, I left him the house and my father rented me a
house at number 1 […] F[…] Rd in Camps Bay… I wanted the children
to have a place that they knew [i.e. the Milnerton property] so I didn’t
want to take that away from them…’
[24] The Consent Paper incorporated in their Decree of Divorce reflects that
Ms Kirst was the sole director and shar eholder of Oribel (which was the
registered owner of 2[…] A[…] Crescent); Mr Kirst would have a usufruct over
the property; and once it was sold the full net proceeds would be invested for
the children’s benefit.
[25] After returning to Camps Bay (it would se em that the children still spent a lot
of time with Mr Kirst as well), Ms Kirst started a small business importing
costume jewellery which she ran for a few years. She explained that its
purpose was not for any real financial gain but more to keep herself occupied.
Mr Kirst had no involvement, which Mr Foster later confirmed in his testimony.
Also, around 2014, Ms Kirst came across another development opportunity, a
property comprising two plots with the residence portion at […] T[…]Avenue,
Camps Bay.
[26] Her idea was to build a hotel on the plot that was empty. She was referred to
various documents and email communications which confirmed her evidence
that her father financed the purchase of this property. Although registration of
transfer only took place in 2015, she moved to T […] Avenue about two
months after the divorce on 17 December 2014. According to her Mr Kirst
assisted her and the children with that move, thereafter visiting the property
very frequently to see the children and to help with them. On the rare
occasion he stayed over. She also testified that she sold the remaining
Milnerton property in 2016. Her father also paid for all of the plans etc in
respect of the hotel which she intended to build, but it did not come to fruition.
[27] In about Aug ust 2018, Ms Kirst purchased a further property at […] R[…]
Heights, […] I[…] C[…] Place, Camps Bay. It was purchased, with guidance
from her father, in a trust specifically created for the purpose of her acquiring
immovable properties as investments. Her father put up the funds required for
its purchase and Ms Kirst began operating it as an Airbnb through local
agents. Again Mr Kirst had no involvement. This business ran very
successfully (apart from during the Covid-19 pandemic) and she also lived
there for a few months around the time the Sheriff made the first attachments
in December 2020.
[28] In 2019, Ms Kirst asked Mr Kirst to move into […] T[…] Avenue to protect her
and the children following a nasty incident at her home there. He took up
occupation of the separate downstairs flat and also had free use of the large
number of vehicles, motorbikes and the like which she had purchased (her
children are avid motorcyclists, cyclists and surfers and Mr Kirst too enjoyed
most of these activities). Although th ey now resided again under the same
roof, there was no question of them reconciling. During the few months she
(and it would seem the children) stayed at the R […] Heights property, Mr Kirst
remained at […] T[…] Avenue and looked after the pets.
[29] Over th is period and thereafter, apart from her income from the Airbnb
business (and a little from her jewellery business while it still operated), Ms
Kirst’s father continued to pay her allowance of £2 000 per month. In addition
he paid all of the children’s exp enses and other expenses when she asked
him to do so. Mr Kirst, who remained unemployed, made no financial
contribution. Ms Kirst was referred to correspondence with her father in this
regard which supported her testimony. In 2019 she had also decided to r eturn
to the United Kingdom permanently with the children.
[30] Although this plan later had to be put on hold when interference by her sister
and brother -in-law (to whom Mr Foster, on his own version , was feeding
information about the alleged activities at the Kirst home) caused severe
tension between herself and her father, Ms Kirst did not want the children to
see their father ‘destitute on the streets’ and saw no reason why he should not
spend as much time as possible with the children before her move back to the
United Kingdom. She and the children eventually only left South Africa on
25 July 2023. Before leaving, both the T […] Avenue and R […] Heights
properties were sold and she received the full net proceeds as agreed with
her father. Mr Kirst accompanied her and the children to London to see the
boys settle in and after a month he returned to South Africa.
[31] Ms Kirst gave detailed evidence about how each of the items attached by the
Sheriff and to which she lays claim, were either paid for by her or her father ,
or a combination of their respective initial contributions . Two of these, the
Subaru vehicle and trailer had previously been registered in Mr Kirst’s name
although she appeared unable t o explain why. The same applied to another
vehicle, a Mitsubishi Colt, which the Sheriff did not attach as he could not
locate it (it was stored along with another trailer in Clanwilliam where Ms Kirst
kept her speedboat).
[32] When she was intending to leave South Africa towards the end of 2019 (an
email to her father dated 5 November 2019 confirmed that the planned
departure date had been 10 December 2019), because Mr Kirst had not made
any contribution to the children’s maintenance despite having undertaken to
do so in the Consent Paper incorporated in their Decree of Divorce, he agreed
to transfer the Subaru, Colt and trailer into her name in lieu of such payment s.
As previously stated it is common cause that these items were transferred into
the name of Ms Kirst on 12 November 2019. Her evidence was further that
she only discovered that an actual amount(s) was owing by Mr Kirst to
Mr Foster in respect of the taxed bills of cost during 202 2, when the attorneys
attending to the transfers of R […] Heights and […] T[…] Avenue to the
respective purchasers received an email fro m Mr Foster’s attorney asking for
Mr Kirst’s whereabouts.
[33] Ms Kirst was referred to three affidavits to which she had deposed. The first
was her founding affidavit in an application for t he sequestration of the estate
of a Mr Jonathan Sykes on 28 April 2023 in which she alleged that she and
her ‘husband’ Mr Kirst had jointly entered into an agreement with Mr Sykes for
the sale of motor vehicles for profit , including that initially ‘we’ made a good
return. Her response was that her reference to Mr Kirst as her husband was
an oversight and she had not regarded this as important at the time, her
primary concern having been to secure payment of the sum owed solely to
her as reflected in the wri tten acknowledgement of debt annexed to her
affidavit.
[34] Her evidence was further, as reflected in that affidavit, that it was she who
was the plaintiff in an action instituted against Mr Sykes for payment of the
same sum, resulting in default judgment again st him, because only she had
loaned him the amount in question. She maintained that Mr Kirst had no
involvement in her financial dealings with Mr Sykes and also that the attorney
who took instructions from her in the presence of Mr Kirst must have
mistakenly concluded they were jointly involved in that business since Mr Kirst
‘did speak a little about what I had been through’.
[35] The second and third affidavits were confirmatory ones deposed to by
Ms Kirst in prior proceedings between Mr Foster and Mr Kirst, although only
one of them appears to have found its way into the papers before this court.
As I understood it, in both these affidavits Ms Kirst had confirmed the
truthfulness of Mr Kirst’s allegations, but only insofar as they related to her.
Accordingly averments made by Mr Kirst in his affidavits that he was a self -
employed businessman, the breadwinner of the Kirst family, an d might have
to sell ‘my’ property at […] T[…] Avenue, cannot properly be attributed to
Ms Kirst, although she had confirmed his allegation that she was his wife at
the time. Her explanation was that ‘perhaps this was a typo. I don’t know why
he kept calling me his wife… I was confirming probably the rest of the affidavit
rather than the comment of being his wife’.
[36] Cross-examination of Ms Kirst elicited the following. She conceded that she
misled Mr Ntsibantu (the Sheriff) when he arrived at the Rontree Heights
property to effect the first attachment in December 2020, by telling him she
did not know of Mr Kirst’s whereabouts. She claimed that she did not want yet
another altercation involving Mr Foster in front of her children. She also
maintained it was the Sheriff who suggested Mr Kirst , who was present at the
time, was her boyfriend, denying she had told him this as Mr Ntsibantu later
testified.
[37] She also conceded she had been made aware by Mr Kirst that Mr Foster
obtained ‘a judgment’ against him with costs which he subsequently
unsuccessfully attempted to have rescinded, but she stated this was the
extent of her involvement in their litigation since she did not wish to be drawn
into it. She had not funded any of Mr Kirst’s own attorney’s fees. She late r
testified that Mr Foster himself had emailed her demanding payment, but
since it had nothing to do with her she was certainly not going to pay. When it
was pointed out to her that Mr Kirst would have been made aware of the first
taxation in about June 20 19, at a time when he still had the vehicles and
trailer in question registered in his name, she replied that she thought this only
had to do with the then pending s 65 inquiry, which could not have been the
case since those proceedings were only institute d after January 2021 . She
also maintained the only reason why Mr Kirst closed his bank account in
October 2019 was because he could not afford the bank charges.
[38] The divorce, she supposed, could be described as amicable. Mr Foster might,
as he claimed, have been under the impression that she and Mr Kirst were
married after she moved into […] T[…] Avenue, but she did not consider her
private life to be any of his business, and had not confided in him about her
personal situation with Mr Kirst. She claimed to have been careless in her
affidavits in the earlier proceedings and apologised for this. She denied that
the Sykes acknowledgement of debt executed on 26 October 2022 reflected
only herself as creditor since by then Mr Kirst was well aware he should have
no assets (or claims) in his name. She stated it was because only she was
owed the money and Mr Kirst never had assets save for the Subaru, Colt and
trailer she previously bought.
[39] With regard to the VW Polo her evidence was that her former mother -in-law
had owned a 20 year old Mercedes A Class which became very expensive to
run. Ms Kirst thus bought her the VW Polo since it was ‘cheaper, lighter and
easier’. The vehicle was registered in the name of her former mother -in-law
since the latter wanted to retain her previous vehicle registration number of
C[…].
[40] When asked why she had referred to Mr Kirst as self -employed in her divorce
summons, she replied that her attorney at the time advised that ‘this is sort of
the normal how things are set up’ . According to her it was the same attorney
who suggested that payment of maintenance by Mr Kirst for the children be
included in their Consent Paper as a ‘nominal figure just so that we could put
something in there for the documents’. The Consent Paper reflects t hat
Mr Kirst would contribute to the children’s maintenance as from 1 November
2013 by contributing towards their day -to-day, medical and educational
expenses pro rata according to his means from time to time; and that pending
any process for determining the quantum thereof, he would pay R1000 per
month for both children. When asked how she contemplated him ever paying,
she replied ‘I don’t know, it didn’t really bother me to be honest. I was self -
sufficient, my father pays for most things, so really it was n’t an issue for me at
the time’. It was only when she planned to return permanently to the United
Kingdom in 2019 that she felt Mr Kirst should at least give up the vehicles and
trailer in lieu of unpaid maintenance since their proceeds would be ‘better than
nothing’.
[41] Regarding the transfer of the vehicles and trailer into her name in November
2019, she was asked what she thought Mr Kirst would drive once she sold
them, to which she replied this was not her concern. It was suggested that it
was most unlikely Mr Kirst wo uld have put himself in that position. She
responded:
‘I was planning my own life, to start my own life again back home with
my family, with my two sons and how he ran his life was no longer my
responsibility any more… and he would have had to grow up and get a
job like the rest of the world and fend for himself to be honest… He
could have driven his mother’s car if he needed a car that badly.’
[42] I now turn to Mr Foster’s testimony. He was not aware when Ms Kirst moved
into […] T[…] Avenue that she and Mr K irst were already divorced. From his
observations over an extended period of time they conducted themselves as a
married couple. In addition, at some point, Mr Wrensch contacted him to ask
him to feed information about the Kirst’s activities (which Mr Fost er provided)
and Mr Wrensch told Mr Foster the Kirst divorce had been a sham.
Mr Wrensch was not called by Mr Foster to testify and accordingly no weight
can be attached to this. Similarly, no weight can be attached to Mr Foster’s
testimony that in 2017 he came across the Kirsts at a restaurant in Camps
Bay when they told him they were celebrating 21 years together, and that the
Kirsts had jointly owned 10 immovable properties, since none of this was put
to Ms Kirst when she testified.
[43] Mr Foster took the co urt in detail through the documentary evidence he had
pieced together to support his view that the Kirsts pooled resources for joint
profit, but ultimately, apart from the affidavit evidence to which I have already
referred and external registration record s, Mr Foster was unable to produce
anything of substance to counter Ms Kirst’s testimony about the actual
sources of the funds she had accumulated. The gist of Mr Foster’s testimony
in chief is perhaps best summarised by the following evidence he gave:
‘As I mentioned in the evidence and the items in examples referred to,
they operated as a household where they conducted themselves
together. The comingling of assets was taken to the extreme by the
transfer of the very few items that were in his name and to suggest that
one has no assets, no income and no liabilities and to have access to
those assets and to have made those transfers before and after the
marriage as is detailed from the totality of that, it indicates that it is
irrational and improbable that it could be that you have absolutely no
expenses, no income and that the truth is that if they are in collusion to
portray otherwise, is as I stated here that they have comingled
everything on paper in her name, but on proper analysis and detailing
of the timing and the acquisition and utilisation and everything in
totality, it is not credible…'
[44] During cross -examination Mr Foster accepted that ‘the divorce was not
specifically for me’. He claimed that according to a ‘record’ he had seen,
Mr Kirst had been a director of Oribel at one stage, but did not know why this
too was not put to Ms Kirst during her unchallenged testimony on this score.
[45] Mr Foster also accepted that 3 of the 4 Milnerton properties were sold (along
with those acquired, renovated and sold before then) prior to the Kirst’s
divorce in October 2014. To this should be added that the W […] Close,
Camps Bay property was awarded to Ms Kirst in the divorce. He agreed that
even when the last Milnerton property (2 […] A[…] Crescent) was sold in 2016
there were no issues between himself and Mr Kirst as yet. The Kirsts would
thus not have needed to conceal any assets from him at that stage. He
accepted that Ms Kirst’s father paid entirely for the acquisition of both the
R[…] Heights and T […] Avenue properties, and that after Ms Kirst sold 2 […]
A[…] Crescent she did not purchase and renovate any other immovable
properties for sale and consequent profit.
[46] As far as the transfers of the Subaru, Colt and trailer from Mr Kirst to Ms Kirst
in November 2019 are concerned, Mr Foster agreed that the first order
obtained in his favour was in October 201 8 and the second in February 2019
(although the two bills of cost in question were only taxed in October 2020).
According to Mr Foster , both Kirsts would have been aware, at the latest by
February 2019, of the looming consequent costs for which Mr Kirst would be
liable. He was unable to proff er any reasonable explanation why, in these
circumstances, the Kirsts nonetheless waited over 8 months until November
2019 to take steps to put these vehicles and trailer beyond his reach.
[47] Mr Foster further testified that ‘the funding, that was provided b y the father,
yes, but the profits of all the properties, my understanding from the evidence
is that they directly benefited from it’.
Whether Mr Foster or Ms Kirst bears the onus
[48] The legal position is conveniently summarised in Erasmus: Superior Court
Practice4 as follows:
‘The reasoning in the cases in which the onus of proof has been
considered seems to indicate that, when the sheriff interpleads, the
claimant ought to be made plaintiff if the goods at the moment of
seizure were in the judgment debtor’ s possession, because his
possession implies a prima facie title in him which enures to the benefit
of the execution creditor; but if the goods at the moment of seizure
were in the claimant's possession, he would have the prima facie title,
4 No 2ed, vol 2 at D1 Rule 58 -3 to 58 -4, with reference to Bruce NO v Josiah Parkes & Sons
(Rhodesia) (Pvt) Limited 1972 (1) SA 68 (R); Zandberg v Van Zyl 1919 AD 302 at 308; Gleneagles
Farm Dairy v Schoombee 1949 (1) SA 830 (A) at 836; Ebrahim v Deputy Sher iff, Durban 1961 (4)
SA 265 (D) at 267D.
which the execu tion creditor would have to displace, and so the
execution creditor ought to be the plaintiff.’
[49] In the present matter the items to which Ms Kirst lays claim were attached by
the Sheriff at three separate addresses, namely […] M[…] Road, […] R[…]
Heights and […] T[…] Avenue. On a conspectus of the evidence given during
the hearing, the only address which can safely be accepted as having been
occupied jointly by Mr and Ms Kirst is […] T[…] Avenue; and only two items
were attached at that address, namely t he Subaru and another vehicle, a VW
Combi Transporter. It must therefore follow that Mr Foster bears the onus in
respect of the items attached at […] M[…] Road and […] R[…] Heights, and
Ms Kirst bears the onus in respect of the two items attached at T[…] Avenue.
Mr Foster’s claim to the third claimant’s vehicle (the VW Polo)
[50] Mr Foster’s case is that unless the third claimant herself lays claim to her
vehicle, or is represented by a curator ad litem for this purpose, his claim must
succeed, given his “partnership” argument.
[51] This cannot be correct. On Mr Foster’s own version, when Ms Kirst bought
this vehicle for her former mother -in-law, the latter already lacked the
cognitive ability to manage her own affairs. I also disagree with the
submission made on behalf of Ms Kirst that this court is entitled to take
account of her evidence in deciding whether Mr Foster has a claim to that
vehicle on the basis that execution is a process of court, and this court has
the inherent power to regulate its own process.
[52] Put simply, it is undisputed that the third claimant lacks the cognitive ability to
defend the attachment of her vehicle. Ms Kirst herself lays no claim to it. If
Mr Foster wishes to pursue the attachment of the VW Polo any further, he
should approach court for the appointment of a curator ad litem to assist the
third claimant in these interpleader proceedings, since only he and the third
claimant are still affected by that attachment. In addition the Sheriff cannot
reasonably be expected to keep the VW Polo under attachment indefinitely
unless – and this is entirely unclear to me – the amount paid by Ms Kirst into
her attorney’s trust account in terms of Henney J’s order somehow
nonetheless included the value of that vehicle. In my view i t would be
appropriate, in these circumstances, to place a time limit on this attachment.
Evaluation
[53] One must have sympathy for Mr Foster. It was clear from his testimony that
he was convinced of the correctness of his case. I have deliberately set out
the evidence on the “partnership” issue in some detail, because it
demonstrates that Mr Foster has failed to discharge the onus which he bears.
[54] While I might have suspicions about the manner in which the Kirsts conducted
their affairs there is simply not eno ugh evidence to show on a balance of
probabilities that: (a) a partnership of any kind existed between Mr and Ms
Kirst; and (b) to the extent that the Sykes sequestration application indicated a
specific partnership or joint venture, the items attached by the Sheriff, and
claimed by Ms Kirst, were acquired as a consequence of any profits made in
terms thereof.
[55] Regarding the vehicles and trailer transferred by Mr Kirst to Ms Kirst in
November 2019, and again while I might have suspicions, Mr Foster’s own
timeline when weighed against the evidence about Ms Kirst’s planned
imminent departure from South Africa at the time, must tip the scales in her
favour; and on the facts which she proved in relation to the onus she bore, I
cannot find that they were not purchased out of her own funds, or those of her
father, or a combination of the two. The same applies to the VW Combi
Transporter which, apart from the Subaru, was the only other item attached by
the Sheriff at […] T[…] Avenue.
[56] That being said, it is also clear that Ms Kirst, who is obviously intelligent and
well-educated, has little difficulty at times in being economical with the truth.
This much is amply demonstrated by her attempts to explain away her
previous affidavits, her misleading of the Sheriff, and the circumstances of Mr
Kirst’s closure of his bank account. It can also safely be said that Mr Foster
cannot fairly be criticised for relying on the truth of those affidavits and other
falsehoods to advance his case.
[57] I acknowledge that, as became apparen t during her evidence, her motive for
“looking after” Mr Kirst was to ensure the emotional wellbeing of her children,
but she will nonetheless have to bear the consequences of those untruths.
The most appropriate way for her to do so is to order that, notw ithstanding her
success in these proceedings, Mr Foster should not be ordered to pay her
costs.
[58] The following order is made:
1. Save for the Volkswagen Polo vehicle registered in the name of the
third claimant (“VW Polo”) the execution creditor’s claim to th e items
attached by the applicant on 23 December 2020, 15 May 2023 and
23 June 2023 respectively, is dismissed;
2. The second claimant is declared the owner of the movable goods to
which she has laid claim in these proceedings, and the monies held
in trust a s security for the execution creditor’s claim in terms of the
order granted on 22 February 2024 shall be released to the second
claimant, subject however to the terms of paragraph 4 of that order;
3. The execution creditor’s claim to the VW Polo is postpone d sine die
subject to paragraph 4 below;
4. Unless the execution creditor makes application by Friday
31 January 2025 for the appointment of a curator ad litem for the
third claimant to represent her, the attachment of the VW Polo shall
automatically lapse; and
5. The execution creditor and the second claimant shall each pay their
own costs, including any reserved costs orders.
__________________
J I CLOETE
For execution creditor: Adv K Engers SC
Instructed by: Brian Segal Attorneys (Mr B Segal)
For second claimant: Adv D Baguley
Instructed by: Assheton-Smith Ginsberg (Mr A Ginsberg)