The Sheriff has approached me at my home with a warrant of execution issued against a person who is not known to me. The Sheriff indicated that he must proceed with the attachment of my movable property, but that I can follow the interpleader process. What should I do.
In order to answer this question, you must turn to the Magistrates Court Act, Act 34 of 1944, which states that;
S 69(1)(a) Where any person, not being the judgment debtor, makes any claim to or in respect of any property attached or about to be attached in execution under the process of any court, or to the proceeds of such property sold in execution, his claim shall be adjudicated upon after issue of a summons in the manner provided by the rules.
An interpleader is a form of procedure whereby a person in possession of property not his own (e.g., a stakeholder or other custodian of movable property to which he lays no claim in his own right, which is claimed from him by two or more other persons, is enabled to call upon the rival claimants to such property to appear before the court in order that the right to such property, as between rival claimants, may be determined without putting the holder of the property to the trouble and expense of an action or actions.
HOW TO LODGE AN INTERPLEADER:
• After attachment of movable property by a judgement creditor, any person who alleges to be the owner of the property so attached may file with the Sheriff an affidavit supported by documents to lay a claim to the property.
• This is normally done by way of affidavit, normally by a relative of the judgement debtor, in terms of which the person will then indicate that the property belongs to him/her and not to the judgment debtor.
• After this affidavit has been received by the Sheriff, the Sheriff will provide a copy thereof to the Judgment Creditor (through its attorneys) indicating that a claim has been raised and requesting further instructions as to how to proceed with an interpleader summons.
• It will then be for the judgment creditor to either accept the claim raised by the third party or instruct the Sheriff to proceed to file the interpleader summons.
• Should the judgement creditor then accept the claim, the Sheriff must be informed that the attachment of the movable property can be uplifted in order for the third party to retake possession of the property
• If the claim is however, not accepted, then the Judgement Creditor provides the Sheriff with instructions to lodge the interpleader summons.
• The interpleader summons must be served upon both the parties by the Sheriff.
• Take note that all of the costs involved in this process are to be paid by the Judgement Creditor, unless the claim is dismissed
WHAT IS AN INTERPLEADER SUMMONS:
• It is a summons on which the parties (both the claimant and the Judgement Creditor) is called to court to adjudicate, declare, and determine the claim of the claimant.
• It further indicates that should you fail to attend to the court proceedings, either claim will be dismissed (hence you and your successors in title will be barred from raising the same claim) or accepted.
WHAT TO LOOK OUT FOR:
When you lodge and interpleader, it is important to note that:
A rebuttable presumption of law creates a provisional assumption of a fact that compels a court to reach a conclusion in the absence of evidence to the contrary, which means that a claimant in an interpleader suit claiming ownership on the ground that he has bought such movable property from a person whom he has allowed to retain possession of it must rebut that presumption by clear and satisfactory evidence.
The fact that he has bought a thing that does require himself, but allows the seller to use requires full explanation, and in the absence of such explanation, a Court is justified in drawing its own reasonable inferences.
When the court then considers the interpleader, the Court applies the test as set forth in the matter of Ebrahim v Deputy Sheriff Durban and Another 1961 (4) SA 267 (D), in which it was held that:
“The test whether a claimant has discharged the onus of proving his ownership to the movable property that is not in his possession is whether in a result, the probabilities are balanced in his favor. The strength of the evidence that he has to produce to succeed depends on the circumstances of the particular case.”
CONCLUSION:
It is therefore important that when you lodge your interpleader affidavit you ensure that you produce clear and satisfactory proof that you are the owner of the property that has been attached and removed and why you are of the view that the property is not that of the judgment debtor.