CASE
NO. I 4241/2009
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
THE
DEPUTY SHERIFF OF TSUMEB
…......................................................Applicant
and
RACHEL
NATANIEL KOCH
…............................................................First
Claimant
EVERHARDUS
PETRUS FACKULYN GOUS N.O.
CHRISTOFF
TSCHARNKTE N.O.
(In
their capacity as duly appointed trustees for the
La
Rochelle Ranch Trust)
….............................................................Second
Claimant
CORAM:
VAN
NIEKERK, J
Heard:
22 October 2010 Delivered: 26 November 2010
JUDGMENT
VAN
NIEKERK, J:
[1]
On 27 June 2010 the Deputy Sheriff of Tsumeb filed a notice in terms
of rule 58(1) of the rules of this Court in interpleader proceedings.
On the date of the hearing the applicant did not appear but there was
appearance for both claimants. Initially Mr Kamanja
indicated
that he would present the evidence of the first claimant in terms of
rule 58(6), should the court require it. However, Mr Schickerling
on
behalf of the second claimant raised a point in
limine, which,
he submitted, would dispose of the matter. I heard argument on this
point and then reserved judgment.
[2]
Interpleaders are not adjudicated upon very often in this Court, but
interpleaders by the deputy sheriff appear to be on the increase.
Uncertainty exists about some procedural aspects. I shall use this
judgment to provide some guidance in relation to matters which appear
to me to be pertinent or which seem to cause difficulty. Thereafter I
shall deal with the issues raised by the claimants in these
proceedings.
[3]
Rule 58 provides as follows: "Interpleader
58.
(1) Where any person, in this rule called 'the applicant', alleges
that he or she is under any liability in respect of which he or she
is or expects to be sued by 2 or more parties making adverse claims,
in this rule referred to as 'the claimants', in respect thereto, the
applicant may deliver a notice, in terms of this rule called and
'interpleader notice', to the claimants, and in regard to conflicting
claims with respect to property attached in execution, the
deputy-sheriff shall have the rights of an applicant and an execution
creditor shall have the rights of a claimant.
(2)(a)
Where the claims relate to money the applicant shall be required, on
delivering the notice mentioned in sub-rule (1), to pay the money to
the registrar who shall hold it until the conflicting claims have
been decided.
(b)
Where the claims relate to a thing capable of delivery the applicant
shall tender the subject-matter to the registrar when delivering the
interpleader notice or take such steps to secure the availability of
the thing in question as the registrar may direct.
(c)
Where the conflicting claims relate to immovable property the
applicant shall place the title deeds thereof, if available to him or
her, in the possession of the registrar when delivering the
interpleader notice and shall at the same time hand to the registrar
an undertaking to sign all documents necessary to effect transfer of
such immovable property in accordance with any order which the court
may take or any agreement of the claimants.
(3)
The
interpleader notice shall-
(a)
state the nature of the liability, property or claim which is the
subject-matter of the dispute;
(b)
call upon the claimants within the time stated in the notice, not
being less than 14 days from the date of service thereof, to deliver
particulars of their claims; and
(c)
state that upon a further date, not being less than 15 days from the
date specified in the notice for the delivery of claims, the
applicant will apply to court for its decision as to his or her
liability or the validity of the respective claims.
(4)
There shall be delivered together with the interpleader notice an
affidavit by the applicant stating that-
(a)
he or she claims no interest in the subject-matter in dispute other
than for charges and costs;
(b)
he or she does not collude with any of the claimants;
(c)
he
or she is willing to deal with or act in regard to the subject-matter
of the
dispute as the court may direct.
(5)
If
a claimant to whom an interpleader notice and affidavit have been
duly delivered fails to deliver particulars of his or her claim
within the time stated or, having delivered such particulars, fails
to appear in court in support of his or her claim, the court may make
an order declaring him or her and all persons claiming under him or
her barred as against the applicant from making any claim on the
subject-matter of the dispute.
(6)
If
a claimant delivers particulars of his or her claim and appears
before it, the court may-
then
and there adjudicate upon such claim after hearing such evidence as
it deems fit;
order
that any claimant be made a defendant in any action already
commenced in respect of the subject-matter in dispute in lieu of or
in addition to the applicant;
(c)order
that any issue between the claimants be stated by way of a special
case or otherwise and tried, and for that purpose order which
claimant shall be plaintiff and which shall be defendant;
(d)if
it considers that the matter is not a proper matter for relief by way
of interpleader notice dismiss the application;
(e)make
such order as to costs, and the expenses (if any) incurred by the
applicant under paragraph (b) of sub-rule (2), as to it may seem
meet.
(7)
If an interpleader notice is issued by a defendant in an action,
proceedings in that action shall be stayed pending a decision upon
the interpleader, unless the court upon an application made by any
other party to the action otherwise orders."
[4]
In this case the interpleader notice reads as follows [the
underlining is mine]:
"NOTICE IN
TERMS OF RULE 58 (1) OF THE RULES OF THE HIGH
COURT OF NAMIBIA
Whereas
the Deputy Sheriff of Tsumeb has on the 15th
day
of JUNE 2010 at 10h30 attached and took (sic)
under
his control the goods as set out in Annexure "A" hereto in
terms of a Writ of Execution issued by the Second
Claimant,
EVERHARDUS PETRUS FACKULYN GOUS N.O. and CHRISTOFF TSCHARNKTE N.O. in
their capacities as the only Trustees of THE LA ROCHELLE RANCH TRUST,
and whereas the said RACHEL NATANIEL-KOCH care of SISA NAMANDJE &
CO., 13 PASTEUR STREET, WINDHOEK WEST, the
first
Claimant, has claimed the goods as set out in Annexure "B"
as his (sic)
property,
now therefore, the
above Claimants are hereby called upon within a period of fifteen
days from the date of service of this Notice on them to deliver full
particulars and proof of their claim to the Applicant,
and further take notice that the Applicant will apply to the court
for its decision as to their liability or the validity of their
claims on the 22 Day of October 2010 at 9h30.
Take notice that
the Affidavit of JOHN ANDREW PULESTON, the Applicant in terms of Rule
58 (4) is annexed hereto marked "C" in support of the
application.
DATED at TSUMEB
this 26th day of JULY 2010."
[5]
The wording of the notice is problematic. The underlined words in the
notice quoted above require that the claimants must deliver "full
particulars and proof of their claims to the applicant".
However, rule 58(3)(b) does not require that the particulars be
delivered to
the applicant.
It states that the interpleader notice shall call upon the claimants
"to deliver particulars of their claims." The meaning of
the word "deliver" is determined by the definition in rule
1 as being "serve copies on all parties and file the original
with the registrar". From this it is clear that the particulars
are to be handled like all other pleadings.
[6]
Rule 58(3)(b) is in contrast with the equivalent rule of the
magistrate's courts, namely rule 44(2)(c), which requires that each
claimant shall "lodge with the messenger [of court], an
affidavit in triplicate, setting forth the particulars of his claim
and the grounds thereof." In terms of rule 44(2)(d) the
messenger is responsible to forward one copy of such affidavit to the
execution creditor and one copy to the execution debtor. In the High
Court each claimant is responsible to properly serve particulars of
his or her claim on all the other parties and file the original with
the Registrar. Deputy sheriffs should take care not to confuse the
provisions of the rules of the magistrate's courts with those of this
Court.
[7]
The words "full particulars" also appear to lead to
misunderstanding. In some cases the "particulars" consist
of several documents in haphazard order, e.g. letters to the deputy
sheriff complaining about the attachment, explanations by the
claimant, receipts, proof of purchase, correspondence by the
execution creditor, etc. In Corlett
Drive Estates v Boland Bank Bpk 1979
(1)
SA
863 (C) it was stated at 867F-H:
"Dit moet in
gedagte gehou word dat die Reels nie van 'n aanspraakmaker verwag dat
hy sy aanspraak in die vorm van 'n eedsverklaring moet inklee nie. Al
wat van hom verwag word is om "besonderhede" van sy
aanspraak te verskaf. Die doel, onder andere, van die uiteensetting
van 'n aanspraakmaker se besonderhede van sy aanspraak is om sy
teenstander van die strekking van sy saak te verwittig sodat
laasgenoemde in staat gestel word om te kan besluit of hy die
aanspraak gaan bestry aldan nie. Dit is nie die doel van die Reel dat
van die aanspraakmaker verwag word om met die presiesheid wat in die
geval van 'n pleitstuk vereis word sy aanspraak uiteen te sit nie. 'n
Onduidelike uiteensetting mag wel vir 'n skuldige aanspraakmaker die
gevaar op die hals haal dat hy deur middel van 'n kostebevel daarvoor
sal moet boet. Mits met redelike sekerheid van sy besonderhede
afgelei kan word dat hy 'n egte en regsgegronde aanspraak op die
betrokke eiendom of geldsom wat ter sprake is, het, het hy aan die
vereistes van die Reel voldoen. Uitdruklike voorsiening is gemaak vir
die Hof om getuienis aangaande die aanspraak aan te hoor of om die
geskil na verhoor te verwys."
[My
translation of this passage is as follows:
"It
must be borne in mind that the Rules do not expect of a claimant that
he should clothe his claim in the form of an affidavit. All that is
expected of him is to provide "particulars" of his claim.
The purpose, inter
alia, of
the setting out of the claimant's particulars of his claim is to
inform his opponent of the tenor of his case so that the latter is
able to decide whether to oppose the claim or not. It is not the
purpose of the Rule that it is expected of the claimant to set out
his claim with the precision which is required in the case of a
pleading. An unclear exposition may very well incur for a guilty
claimant the danger of having to pay for it by means of a costs
order. Provided it can be deducted with reasonable precision from his
particulars that he has a genuine and legally based claim to the
relevant property or sum of money which is involved, he has met the
requirements of the Rule. Express provision is made for the Court to
hear evidence regarding the claim or to refer the dispute to trial".
[8]
In my view a claimant should set out the particulars concerning his
claim in a written document by providing the material facts which are
the basis of his claim. The document should comply with rule 62(2)
and (3), i.e. it must be clearly and legibly printed or typewritten
in standard A4 size and be divided into concise paragraphs which are
consecutively numbered. In this document the claimant may also deal
with the particulars of the rival claim(s). Although this document
may in some respect be similar to a particulars of claim attached to
a combined summons, it is not to be confused with this particular
pleading, which has its own set of requirements as provided for in
rule 18. If documents are annexed to the claimant's particulars, e.g.
as proof of ownership, such as a receipt or proof of purchase or
donation, these documents should be described in the particulars and
properly marked in alphabetical or numerical order. The Court cannot
be expected to wade through a collection of documents which are in no
logical order and not properly identified or described in the
particulars.
[9]
Furthermore, in this case the interpleader notice refers to Annexure
"A" and "B", but these annexures are not clearly
marked. In fact, the notice is immediately followed by Annexure "C"
and then several pages of unmarked pages are attached. Deputy
sheriffs should take care when preparing these applications to ensure
that the documents are complete, in the correct order and properly
marked.
[10]
The notice in this case does not call upon the claimants to appear on
the date of set down. I have noticed recently that in several other
cases where the same notice was issued, the claimants, who until
shortly before adamantly claimed attached property as being theirs,
did not appear on the date of hearing. It seems to me that a lay
claimant may very well think that if he has delivered full
particulars and proof of his claim to the deputy sheriff, he need not
appear, but that on the date of set down the matter will be decided
by the Court on the papers before it. In the case before me the issue
did not arise, perhaps because the claimants have legal
representation and are therefore aware that they are required to
appear in support of their claims, failing which they may be barred
under Rule 58(5) from making any claim on the subject-matter of the
dispute as against the applicant. In order to avoid misunderstanding
the notice should explicitly call on the claimants to appear in
Court.
[11]
In cases involving the deputy sheriff an interpleader notice in the
following words would more clearly convey to the claimants what is
expected of them with regard to both the delivery of their claims and
the court appearance:
"INTERPLEADER
NOTICE BY DEPUTY SHERIFF
IN TERMS OF RULE
58 (1) OF THE RULES OF THE HIGH COURT OF NAMIBIA
WHEREAS
the Deputy Sheriff of (place)
has
on the day of
(date)
at
(time)
attached
and taken under his/her control the
goods as set out
in Annexure "A" hereto in terms of a writ of execution
issued
by
the first claimant, (name
of execution creditor) of
(address),
AND
WHEREAS the second claimant, (name)
of
(address)
has
claimed the goods as set out in Annexure
"B"
hereto as his/her/its property,
NOW THEREFORE, the
above claimants are hereby called upon to deliver written particulars
of their claims by service of copies thereof on the applicant and on
the rival claimant(s) and by filing the original with the Registrar
of the High Court, Luderitz Street, Windhoek, within a period of
fifteen (15) days from the date of service of this notice upon them,
AND TAKE NOTICE
THAT the applicant will apply to the Court for its decision
as to his/her
liability or the validity of their claims on the day of
(date)
at
(time),
at
which hearing date the claimants
are called upon to
appear in support of their claims.
FURTHER TAKE
NOTICE THAT, if a claimant fails to deliver particulars of
his/her/its claim
within the time stated above or fails to appear in support of
his/her/its claim, the Court may make an order declaring him/her/it
and all persons claiming under him/her/it barred as against the
applicant from making any claim on the subject matter of the dispute.
AND FURTHER TAKE
NOTICE THAT in terms of rule 58(4) the affidavit of
(full names of
applicant), is attached hereto as
Annexure "C".
DATED at (place)
this day of (date).
Deputy Sheriff
(Address)
Service on:
Registrar
Claimants"
[12]
Deputy sheriffs should comply with rule 58(2). The Registrar informs
me that this is generally not done. The rule requires that the deputy
sheriff shall
(a)
where the claims relate to money, pay the money to the registrar; or
(b) where the claims relate to a thing capable of delivery , tender
the thing to the Registrar or take such steps to secure the
availability of the thing as the Registrar may direct; or (c) where
the claims relate to immovable property, place the title deeds, if
available, in the Registrar's possession and deliver an undertaking
to sign all necessary documents to effect transfer of the property in
accordance with any Court order or agreement of the claimants. In the
present case the rival claims relate to movables, but there is no
indication that the applicant tendered delivery of the subject matter
or otherwise complied with rule 58(2)(b). The significance of
compliance with this rule is that the applicant thereby divests
himself of the dispute between the claimants (Kamfer
v Redhot Haulage (Pty) Ltd and Another 1979
(3) SA 1149 (W) at 1152).
[13]
In cases where different things are claimed by different claimants
the deputy sheriff should issue a separate notice in respect of each
dispute. For example, say the deputy sheriff attaches a table, four
chairs, and a computer under a single writ. A third party, X, claims
the table as his property and another third party, Y, claims the
computer as his property. The deputy sheriff must then issue an
interpleader notice in respect of the table to claimant X and the
execution creditor and a different notice to claimant Y and the
execution creditor in respect of the computer.
[14]
I now turn to the point in
limine raised
by the "second claimant". I note in passing that each of
the two trustees should have been cited as a separate party in his
capacity as trustee (Mariola
and Others v Kaye-Eddie NO and Others NO and Others 1995
(2) SA 728 (W) 731C-F; Rosner
v Lydia Swanepoel
Trust
1998
(2) SA 123 (WLD), but I shall continue to refer to them jointly as
second
claimant.
[15]
Initially the first claimant filed an affidavit in her personal
capacity and in her capacity as executor and heir in the estate of
"the late Koch". Her residential address is given as La
Rochelle Guest and Hunting Farm, which is also the principal place of
business of the defendant and execution debtor, La Rochelle (Pty)
Ltd. It is common cause that the disputed goods were attached on the
farm. In the affidavit she merely states that she lays claim to the
goods attached in the matter between the trustees of La Rochelle
Ranch Trust and defendant, but she does not set out the basis of her
claim. Later first claimant filed particulars of her claim in another
document drawn in the style of a particulars of claim. In this
document she states that she is the owner of the goods attached; that
she had claimed these goods from the applicant prior to the filing of
the interpleader notice; and denies that the second claimant or any
other parties are the owners of the assets under attachment.
[16]
Mr Schickerling
submitted
that there is no need to even hear the first claimant's evidence, as
she failed on her papers to make out a case in support of her claim.
At first when Mr Shickerling
addressed
me on the point in
limine, neither
he nor his instructing counsel was aware that the second document
referred to above had been filed. The submissions were therefore
initially made with the first claimant's affidavit in mind. However,
when the existence of the second document filed by first claimant was
brought to his attention, counsel submitted that the point in
limine also
held good for this document. The gist of the point is this: bearing
in mind that the onus is on first claimant to prove her claim, she
failed to set out sufficient factual allegations in her particulars
to support her claim that she is the owner of the goods attached.
[17]
Counsel referred me to the case of Gleneagles
Farm Dairy v Schoombee 1949
(1) SA 830 (AD) in which the Court stated that it is assumed in our
jurisprudence that where one litigating party, in execution of a
judgment in his
favour,
has goods attached which are with the other party, and a third party
claims those goods as his property, that third party is burdened with
the onus to prove his claim to the goods. The Court was of the view
that this rule is based on two grounds: firstly, because the third
party is the claimant and secondly, because of the presumption [of
ownership] which flows from possession. It found that it was not
necessary to decide what the position would be if it would be
disputed that the goods were in the judgment debtor's possession when
they were attached. For purposes of that case it was assumed that the
onus was throughout on the claimant. (See also K
& D Motors
v Wessels 1949
(1) SA 1 (AD) at 12).
[18]
Mr Schickerling
submitted
that the allegation of ownership amounts to a legal conclusion and
that first claimant should have set out factual allegations to show
on what basis the allegation of ownership is made. He relied on the
extract quoted above from the case of Corlett
Drive Estates (see
para. 7 supra]
and
also referred the Court to the discussion of that matter in Kamfer
v Redhot Haulage case
(supra)
at
1153B-1154A where the following was said:
"Mr
Van
Biljon, on
behalf of the second respondent, sought the dismissal
of the
application on a slightly different basis. He argued that there
was
insufficient on the papers to establish that a claim had been
made
against the applicants by the second respondent. He therefore
also asked
that the application be dismissed in terms of sub-rule
(6) (d).
Alternatively it was submitted that in the absence of
evidence, it could
not be decided whose claim should prevail
As authority for
his submission that it did not suffice for an
applicant
under Rule 58 to merely allege that adverse claims were being made to
property or money held by him, and that such claims had to be valid
ones, Mr Streicher
referred
to and relied on the recent decision of Corlett
Drive Estates v Boland Bank Bpk en 'n Ander 1979
(1) SA 863 (C). Dealing with Rule 58 (1), the Full Bench of the Cape
quoted the following dictum
of
VAN HEERDEN J, whose judgment was on appeal:
"Eise
is strydig teen 'n applikant ingevolge hierdie Hofreel wanneer elke
aanspraakmaker se eis, indien dit bewys word, 'n geldige
gedingsoorsaak teen die applikant sal uitmaak. Dit volg dus dat die
besonderhede wat elke aanspraakmaker ingevolge Hofreel 58 (3) (b)
opgeroep word om af te lewer, feite vir sy aanspraak moet uiteensit
wat indien dit bewys word 'n geldige gedingsoorsaak teen applikant
sal openbaar." [for translation see para. 7 supra]
(See at 867.) In
the judgment of VAN WINSEN J (SCHOCK and
FRIEDMAN
JJ concurring) there is no quarrel with the principle that " 'n
geldige gedingsoorsaak" must be disclosed. Where the learned
Judge on appeal differed with the Court a
quo was
in regard to the precision with which the claim need be set out. In
holding that the particulars of a claim under Rule 58 should not be
approached as if it was a pleading,
VAN WINSEN J (at
867) stated:
"Mits
met redelike sekerheid van sy besonderhede afgelei kan word dat hy 'n
egte en regsgegronde aanspraak op die betrokke eiendom of geldsom wat
ter sprake is, het, het hy aan die vereistes van die Reel voldoen."
[for translation see para. [7 supra]
This then is a
reinforcement of the requirement that each claimant must, on the
allegations respectively made by them, have a valid claim against the
applicant to the money or property in dispute."
[19]
In my view the authority relied on rather supports the submissions
made by counsel for the first claimant, which are to the effect that,
even if the bare allegation of ownership are not supported by facts,
the factual basis may be provided during the hearing of evidence as
is envisaged in rule 58(6)(a). It is instructive to compare
claimant's particulars with the allegations which a plaintiff in a
vindicatory action is required to make in order to set out a valid
cause of action. It is trite that he is merely required to allege
that he is the owner of the property to be vindicated without making
any further factual allegations. It seems to me that, if, as was
stated in the Corlett
Drive Estates case,
the exposition of a claimant's particulars need not be set out with
the precision required of pleadings, the first claimant's particulars
are sufficient in the circumstances. They set out a valid cause of
action. In any event, should it turn out after evidence has been
heard that there is, indeed, an unnecessary lack of clarity, the
threat of a cost order may be implemented.
[20]
The Court in the Gleneagles
Farm Dairy case
(supra)
quoted
with approval (at 838) the following extract from Policansky
Brothers v Hanau 25
S.C. 670 at 672:
"There
is a presumption of law, no doubt and a presumption, I think, of
common sense that, when goods are found in the possession of anyone,
they belong to that person; and when there is a debtor in the
ostensible possession . . . the things that are found in his
possession and taken possession of by the sheriff or messenger of the
court, who is charged with the execution of the judgment, would prima
facie be
deemed to be the goods of such debtor; but it appears to me that the
presumption, although I think it is a perfectly proper one, is one
which should be considered in view of the circumstances of each
particular case and which can be swept away and upset by evidence."
[21]
In this case the Deputy Sherriff attached goods on the farm La
Rochelle, which is also the residence of the first claimant. The list
of items in dispute is quite long. Bearing these facts in mind, I
agree with Mr Kamanja
that
the first claimant may be able to sweep away and upset the
presumption, even if only with respect to some of the items attached,
should she be granted the opportunity to present evidence in support
of her claim. He submitted that, even if the factual particulars
provided in support of her claim may be few, she should be granted
that opportunity. I did not understand second claimant to suggest
that the matter should, in the event that the point in
limine is
dismissed, be dealt with as provided for in rule 58(6)(b), (c) or
(d). This means that it will probably be adjudicated upon in terms of
rule 58(6)(a), which requires the Court to hear such evidence as it
deems fit.
[22]
For the reasons mentioned the point in
limine is
therefore dismissed. The issue of costs stand over.
VAN
NIEKERK, J
Appearance
for the parties
For
first claimant: Mr Kamanja
Sisa
Namandje & Co
For
second claimant: Adv J Schickerling
Instr.
by Koep & Partners
Deputy Sheriff of Tsumeb v Koch and Another (I 1421/2009) [2010] NAHC 197 (26 November 2010);