REPUBLIC OF NAMIBIANOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO. I3903/2013

In the matter between:

DEPUTY SHERIFF OF OSHAKATI PLAINTIFF

and

MASSHIRE EQUIP SERVICES (PTY) LTD FIRST CLAIMANT

SHANDHINGI CONSTRUCTION CC SECOND CLAIMANT

Neutral citation: Deputy Sheriff of OshakativMasshire Equip Services (I 3903/2013) [2014] 351(29 October 2014)

Coram:MILLER AJ

Heard on: 2014.10.29

Delivered on: 2014.10.29[ex tempore]

ORDER

In the result, the order I make is that the claim of the 1st claimant is upheld and the 2nd claimant’s claim is dismissed. The 2ndclaimant is ordered to pay the costs of the application which will include the costs of one instructing and one instructed counsel.

JUDGMENT

MILLER, AJ:

[1] In this matter, which areinterpleader proceedings the first claimant obtained a judgment against an entity styled as Onyike Trading Enterprises CC. The judgment wasin the sum of three hundred and seventy thousand and fifty five dollars (N$370 055-00) together with interest and costs. As a consequence of this judgment the Deputy Sheriff attached on the 10th of June 2014 and on the premises of the firstclaimant a concrete mixer which is described as aconcrete mixer, serial number 14244 in execution.

[2] The 1stclaimant‘s claim following an intervention by the 2ndclaimant is simply that following the judgment the judgment debtor approached it and enquired from it whether it was interested in buying this particular concrete mixer. The 1stclaimant states that he took certain steps which he sets out in his papers to establish that the judgment debtor was in fact the owner and once that was established he instructed the Deputy Sheriff to attach the asset. It seems to be common cause on the papers that the judgment debtor was at some stage the lawful owner of this particular concrete mixer.

[3] The question that arise is whether the 2nd claimant had proved on a balance of probabilities that the judgement debtor at some stage divested itself of its ownership and transferred ownership in the concrete mixer to the 2ndclaimant. The Particulars of Claim filed on behalf of the 2ndclaimant are rather sketchy in this regard and leaves several issues unexplained and improbable. The 2ndclaimant states that at some stage he took this particular concrete mixer for safe keeping to place of a friend of his but it is common causeat the time it was attached it was not at that place. It was in fact at the place of the 1stclaimant. How it transpired that having taken delivery of the concrete mixer, it found its way to the premises of the 1stclaimant where it was attached is not explained.

[4] The2nd claimant furthermore relies on paragraph 11.3 on an agreement concluded between himself and thejudgment debtor. A copy of which agreement is attached to the 2ndclaimant Particulars of Claim. Point 11.3 simply says that the financier here which is the 2ndclaimant deserves fully unchallenged rights to claim as any asset or value with interest I hope I would join partnership. And all the works contracted to the market value not exceeding the financial capital amount contribution.

[5] Ms Campbell who appears for the 1st claimant submits that this particular clause on its own is not enforceable since it allows for self-help without the intervention of an order of this Court. That proposition and principle seems to me to be correct, but apart from that even if the clause were to be interpreted according to its terms it still remained incumbent upon the second claimant to set out fully the facts upon which it would exercise its rights and how it purportedto do so. The mere fact that the agreement says that he has a right to claim any outstanding assets does not mean that all the assets belong to him.

[6] It was still incumbent upon him to prove that in some or other manner he had purported exercise those rights and those do not appear from his particulars of claim. In fact he seems to allege some sort of agreement between himself and the judgment debtor interms of which agreement of the ownership in the particular concrete mixer would be transferred to him. The explanation however stops short of informing me how and when this particular transaction took place and on what terms the 2ndclaimant became the owner of the concrete mixer in question.

[7] I conclude as a result that the 2ndclaimant who bears the onus of proof has failed to establish that it had become the owner or the concrete mixer in question. The probabilities indicate that the judgment debtor at all times remained the owner of the concrete mixer in question.

[8] Inthe result, the order I make is that the claim of the 1stclaimant is upheld and the 2nd claimant’s claim is dismissed. The 2ndclaimant is ordered to pay costs of the application which will include the cost of one instructing and one instructed counsel.

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P J Miller

Acting Judge

APPEARANCES

FIRST CLAIMANT:Ms Y Campbell

Instructed by:ETZOLD-DUVENHAGE

SECOND CLAIMANT:Ms J Hangula

Instructed by:SHIKONGO LAW CHAMBERS