IN THE HIGH COURT OF SOUTH AFRICA
	(TRANSVAAL PROVINCIAL DIVISION)
		12/10/07
NOT REPORTABLE					CASE NO: 12705/2006

THE SHERRIF OF THE HIGH COURT:
PRETORIA SOUTH EAST 				APPLICANT
In the matter between:
And
-
/

ATTFUND LTD
1ST CLAIMANT/  CREDITOR
CREDITOR
AGATHA GERTRUIDA IMMELMAN JACQUES HUMAN
2ND CLAIMANT 
3RD CLAIMANT

JUDGMENT

SHONGWE, DJP
1.
This matter has rather a long history, however, seeing that the parties
are agreed on most of the factual issues, I shall not venture into the
past but shall venture into the future. The crux of the matter is that
the first claimant obtained judgment against Human Wellness Clinic CC
and proceeded to execute the judgment by attaching certain movable
property on 25 April 2006. The second and third claimants now claim
ownership and/or some entitlement to the attached goods. Hence the
applicant being the sheriff of Pretoria South-East instituted interpleader
proceeding in terms of Rule 58 of the Rules of Court.

2.
2
It is common cause that the attached goods are the ones identified
and tabulated on the document marked "Exhibit A Identification of the
Rented Assets - Equipment and office furniture" appearing on page 33
of the bundle. The document appearing on page 34 of the bundle
being an instalment sale agreement between ABSA Bank Ltd and the
second claimant is also alleged by the second claimant to demonstrate
proof that she purchased the Oxy Megastation machine which is part of
the goods attached.
3.
Although there is a third claimant, she did not appear in court on
20 September 2007 on which day the matter had been set down,
notwithstanding the fact that she did file her claim in terms of Rule 58.
4.
On 6 September 2006 when the matter was before court,
DU PLESSIS J referred the matter to oral evidence 'for the
determination of the questions that the counsel has read into the
record' (sic) and reserved costs.
5.
On 20 September 2007 the parties addressed the court with their
opening addresses. It became crystal clear that the second claimant
bore the onus and also that she had to start. It also became clear that
the question that the court had to determine is whether or not the
second claimant is or was the owner of the attached goods

3
alternatively whether she was the titleholder of the 0xy Megastation
machine which was still subject to the instalment sale agreement with
ABSA.
6.
Mrs Immelman gave evidence and confirmed that she was the second
claimant. She confirmed that on 5 January 2005 she concluded an
agreement of lease between her and Human Wellness Clinic CC
appearing on page 37 of the bundle. It would appear that the terms
and conditions of the said lease agreement are not in dispute. She
testified that the property appearing on page 41 of the bundle belongs
to her. She used to use the goods while she was in Britz some 10-12
years ago. She did not have any proof of purchase of the goods. She
also testified that she purchased the 0xy Megastation through an
instalment sale agreement with ABSA appearing on page 34 of the
bundle. Under cross-examination it was brought to her attention that
the serial number appearing on the instalment sale agreement differs
from the one appearing on the sheriff's attachment papers.
She
insisted that the 0xy Megastation machine was hers and tried to
explain the discrepancy on the serial number, however, she was
interrupted as she was about to give hearsay evidence. She conceded
that the serial numbers differ. She confirmed that she informed the
sheriff before he could attach the goods that she was the owner and
that the goods did not belong to Human Wellness Clinic CC. She even

4
called her attorney, Ms Mitchell, who also testified that she spoke to
the sheriff over the phone on the very same day of the attachment.
7.
The evidence of Ms Mitchell, the second claimant's attorney is short
and to the effect that she did speak to the sheriff and pleaded with him
not to attach the goods as they belonged to her client.
She
subsequently forwarded a copy of the instalment sale agreement to the
sheriff as proof that her client owned or had a title to the machine.
She also informed ABSA of the attachment but ABSA did not join issue
with the sheriff or the first claimant instead request her to inform them
of the developments.
8.
Mr Wilkens is employed by 'Youth Beauty Lasers', the sole distributors
of the 0xy Megastation machine in South Africa. He confirmed that the
second claimant purchased the machine from them and that he
installed the machine. He also confirmed that he was called to remove
the machine and is satisfied that it is the same machine that he
installed. He explained that ABSA was given a serial number appearing
on a pro forma Invoice which is different form the serial number
appearing on the final tax invoice which is issued after the loan
application has been approved. From his evidence it is clear that the
0xy Megastation machine in question is the same machine he installed
at the second claimant's premises and also that it is the same machine
that he removed.
He even checked the serial number on

9.
10.
11.
5
20 September 2007, the day before he came to testify and was
satisfied that it is the same serial number.
The first claimant did not lead evidence at all.
The court must
determine the matter on the evidence before it whether or not the
second claimant has succeeded to prove on a balance of probabilities
that she is the owner of the attached goods, alternatively whether she
has a right of entitlement to the Oxy Megastation machine.
With regard to the goods appearing on "Exhibit A" marked equipment
and office furniture, I am satisfied that the goods belong to the second
claimant, Mrs Immelman. The evidence she led is uncontroverted that
she bought the goods 10-12 years ago, even though she does not
have any proof of purchase at this stage. It is reasonably acceptable
that she does not have the receipts or invoices for the goods because
the goods were purchased a long time ago. More so it was in Britz
where she bought and used the goods before she moved over to
Pretoria.
The first claimant claims the goods on the basis of the attachment by
the sheriff. No evidence to the contrary was tendered by the first
claimant to gainsay the second claimant's evidence.
The third
claimant, as I have indicated earlier, did not attend court to present

12.
13.
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her case, therefore in effect there is no evidence to dispute that of the
second claimant.
The matter gets a little tricky when it comes to the Oxy Megastation
machine. I have no doubt that she purchased the machine through an
instalment sale agreement with ABSA. The fact that there are two
different serial numbers was explained by Mr Wilkens who is employed
by Youth Beauty Lasers and who actually installed the machine. His
evidence is undisputed.
He said the serial number used on the
Pro forma Invoice is for import purposes and when the machine is
delivered the real serial number is written on the tax invoice. The
question whether or not their method of doing things is legal is not
before court. In my view he satisfactorily explained the discrepancy.
It may be well so that ABSA bank retained ownership of the machine,
however, the second claimant as the titleholder has a right to be in
possession of the machine and can in law claim protection against third
parties.
The first claimant conceded that they are not relying on the tacit
hypothec. It is argued by the second claimant in any event that the
right of tacit hypothec terminated when the sheriff was informed
immediately he came to attach the goods, that the machine belonged
to the second claimant. The second claimant relied on the case of
Eight Kaya Sands v Valley Irrigation Equipment 2003 (2) SA

14.
15.
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495 where it was said that as soon as the third party (in this case
second claimant) makes his ownership of the goods known to the
landlord, the legal relationship changes. There is no legal obligation
between the third party as owner and the landlord as creditor of the
tenant: In the present case there is no evidence that the landlord was
informed of the ownership of the goods by the second claimant,
however, the sheriff and the first claimant's attorney were also
informed. In my view nothing turns on this point seeing that the first
claimant did not rely on the tacit hypothec.
The first claimant's
contention is that the second claimant must prove on a balance of
probabilities that she owns the property or has a title over the
machine.
I am satisfied, despite the serial number discrepancy which was
satisfactorily explained by Mr Wilkens, that the second claimant has
succeeded on a balance of probabilities that she has a title on the Oxy
Megastation and therefore her right of entitlement must be protected.
In my view the second claimant did all that can reasonably be
expected of her in her position to see to it that her intimation comes to
the knowledge of the lessor or his agent being the sheriff and his
attorney in this case.
I do not think that the question of rectification is relevant in this case
because there is no allegation of an error regarding the serial numbers.

16.
17.
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The second claimant led evidence through Mr Wilkens to explain the
discrepancy therefore rectification is not necessary. Even if ABSA has
not been joined the second claimant relied alternatively on her right of
title to the machine based on the instalment sale agreement. Had she
relied on the ownership thereof alone, she would have had a problem
without joining ABSA.
Consequently I find that the second claimant succeeded in proving on
a balance of probabilities that she is a title holder on the Oxy
Megastation machine as well as the other movable goods attached.
As a result the following order is made:
(a)
The second claimant's claim succeeds with costs.
(b)
The third claimant's claim is dismissed with costs.
(c)
The third claimant is ordered to pay half of the costs incurred by
the first claimant inclusive of half of the costs of the application
and half of the costs for storage.
(d)
The applicant is entitled to his costs of the application inclusive
of the costs for storage.

 (e)
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The first claimant and the third claimant are ordered to pay the
full costs of the second claimant.

J B SHONGWE JUDGE OF THE HIGH COURT