CASE
NO.: I 2426/2007

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

THE
ACTING DEPUTY SHERIFF OF ONDANGWA
….................................................APPLICANT

and

MUDAR
INVESTMENTS CC
….............................................................................FIRST
CLAIMANT

and

ONDANGWA
PLASTIC CONVERTERS CC
…...............................................SECOND
CLAIMANT

CORAM:
SMUTS, J

Heard
on: 25 June 2012

Delivered
on: 26 June 2012

JUDGMENT

SMUTS, J.: [1] This is
an interpleader application initiated by the Deputy-Sheriff for the
district of Tsumeb and Ondangwa. He did so following an attachment of
a mechanical horse vehicle and two trailers in possession of the
judgment debtor, Mr D. S Christiaans. The attachment was effected on
24 November 2010. That led in turn to an interpleader claim by the
first claimant, a close corporation, with its affidavit deposed to by
the judgment debtor, Mr Christiaans. In it, he claimed that all three
items were property of the first claimant. Attached to the affidavits
was a certificate issued by Natis indicating that the first claimant
was the registered owner of the mechanical horse. The claim was made
on 3 December 2010 after the attachment was made on 24 November 2010.

[2] Particulars of claim were
subsequently filed by the first claimant. Its claim to the horse and
a single trailer was contested by the second claimant, the judgment
creditor. There then followed case management before Ungengu, AJ,
after some postponements, the matter was set down for hearing on 25
June 2012.

[3] At the hearing, Mr Namandje who
represented the first claimant stated that the first claimant only
sought relief in respect of the mechanical horse. He called the
judgment debtor, Mr Christiaans, to give evidence in support of its
claim. Mr Christiaans initially testified that the first claimant had
purchased the mechanical horse in 2006 in South Africa. Later in his
evidence he said that it was purchased in 2010. In cross-examination
he could not explain the registration certificate which indicated
that it was first registered by NATIS in 2009 already.

[4] In his evidence in chief, Mr
Christiaans further stated that the first claimant had after
attachment sold the mechanical horse (during 2011) to another entity,
Onamahongwa Trading CC in which he was a member together with two
other persons. He further stated that the notice of attachment was
not served on him personally and its contents were not personally
explained to him by the Deputy-Sheriff. This is borne out by the
notice of attachment dated 24 November 2010 which was not signed by
him. But that very notice gave rise to the interpleader claim
launched by the first claimant on 3 December 2010 by way of an
affidavit deposed to by Mr Christiaans on 2 December 2010. Prominent
in the notice attachment is the the warning that the attached goods
may not sold or removed and must be held available for a sale in
execution. This admonition (and concomitant duty) are central to
proceedings to execute judgments of this court.

[5] I asked Mr Namandje whether an
adverse inference is to be drawn against Mr Christiaan and/or the
first claimant by purporting to dispose of the vehicle in the face of
this warning, which serves to undermine the very essence of execution
proceedings and thereby the rule of law. Mr Denk representing the
second claimant ( the execution creditor) contended that a special
order of costs should be made against the first claimant as a result
of his conduct. Mr Namandje argued against this because a lack of
good faith was not specifically put to Mr Christiaans in the course
of cross-examination, referring to the purpose of cross-examination
as lucidly explained in President of the Republic of South Africa
v South African Rugby Football Union¹.
But in view of the conduct in question, it would not in my view be
necessary to expressly put an imputation of impropriety to Mr
Christiaans given the warning contained in the notice and by reason
of the provisions of s32(e) of the High Court Act, 16 of 1990 ( the
Act) which I refer to below.

[6] Mr Namandje however conceded,
entirely correctly in my view, that the interpleader claim by the
first claimant cannot succeed by reason of Mr Christiaans evidence
and the current disavowal of ownership. I pause to point out that Mr
Christiaan had stated in answer to a question by the court that he is
the sole member of the first claimant.

[7] Plainly the first claimant can no
longer lay any claim to the mechanical horse following Mr Christiaans
testimony that the first claimant had sold the vehicle after
attachment. It follows that the claim made by it must fail and fall
to be dismissed.

[8] At the conclusion of argument, I
adjourned in order to have further regard to the rules and
authorities cited. In having regard to the rules, I have also had
regard the provisions of the Act and in particular section 36(c)
which makes it an offence for any person:

“being aware that goods are
under arrest, interdict or attachment by order of the court, makes
away with or disposes of those goods in a manner not authorised by
law, or knowingly permits those goods, if in his or her possession or
under his or her control, to be made away with or disposed of in such
a manner.”

[9] The conduct of Mr Christiaans and
the first claimant would thus not only be in conflict with the clear
warning contained in the notice of attachment which the first
claimant represented by Mr Christiaans had acted upon in bringing
these proceedings, but would also appear to constitute a
contravention of s32(e) of the Act. A transaction in conflict with
this provision may also tainted with illegality. But that question is
not before me and is left open.

[10] What is before me is an entirely
unsustainable interpleader claim by the first claimant which falls to
be dismissed with costs. In view of the conduct of Mr Christiaans and
the first claimant in seeking to dispose of the vehicle while under
attachment, it would seem to me upon careful reflection that a
special order as to costs is indeed warranted as a mark of this
court’s censure of that conduct in apparent conflict with the
Act and certainly with the warning contained in the notice of
attachment, reflecting duties which arise from s32 of the Act.

[11] In the view of such conduct, I
also direct the Registrar to bring Mr Christiaans’ and the
first claimant’s conduct to the attention of the
Prosecutor-General.

[12] I accordingly make the following
order:

(1) The first claimant’s
interpleader claim is dismissed.

(2) The first claimant is directed to
pay the second claimant’s costs on the scale as between legal
practitioner and client and to include the costs of one instructing
and one instructed counsel.

(3) The Registrar is directed to
forward a copy of this judgment to the Prosecutor-General.

____________

SMUTS, J

ON
BEHALF OF THE FIRST CLAIMANT: MR NAMANDJE

Instructed
by: SISA NAMANDJE & CO. INC.

ON
BEHALF OF THE SECOND CLAIMANT: ADV DENK

Instructed
by: BEHRENS & PFEIFFER