1.
The nature of the Applicant's claim and the issues in dispute are
described in the court's ruling on points in limine delivered on 22
August 2007.
2.
The question for determination is whether the Applicant is the
lawful owner of the movable goods attached by the 3rd
Respondent in execution of a writ against P. Ramuntu Freight
Services (Pty) Ltd.
3.
The goods were attached in premises rented in the name of the
company. Prima facie, movables in leased premises belong to the
lawful occupier of the premises. The Applicant bears an evidential
burden to establish on a balance of probabilities that he is the
owner of the attached goods.
4.
The Applicant alleges on oath that he is the owner. He says that he
occupied the premises leased by the company because he is a
director, but he provided his own household furniture and goods.
There is nothing inherently improbable in such an arrangement.
5.
The Respondents dispute the Applicant's ownership of the movable
goods, but are unable to provide more than a bald denial of
ownership and a demand for documentary proof.
6.
In reply to the latter demand, the Applicant has furnished account
enquiry printouts from Lewis Stores, Manzini which reflect the
Applicant as purchaser of certain furniture items namely:
Restonic
Saturn bedroom suite Rossini lounge suite- 3 piece - tan Ballentine
bedroom suite - 3 piece Vanessa twin bedroom suite - 1 piece
Ballentine
dining room suite - 9 piece
Orea
side table - titanium (x2)
Orea
coffee table - titanium
Whirlpool
refrigerator
Bella
Donna bedroom suite- 3 piece
Rosa
Bedroom suite - 2 piece - oak
Monaco
dining room suite - 5 piece
Cleo
bedroom suite - 4 piece
Sansui
home theatre
Maxipedic
bedroom suite
Wall
unit - silver tubular
KIC
Fridge
Hisense
Colour TV
Toronto
Sleeper
TV
aerial kit.
7.
We are satisfied that the Applicant has established his ownership of
the above items.
8.
The Deputy-Sheriff has not filed any notice of attachment with an
inventory of goods attached, as he is required to do in terms of the
rules of court. We are unable to ascertain which of the above items
were attached and removed. It is clear that whichever of the above
items were attached in execution must be restored to the possession
of the Applicant.
9.
The Applicant did not furnish documentary proof of his ownership of
the movables until he filed his replying affidavit in these
proceedings. In our view the Deputy-Sheriff was entitled to attach
the goods he found in premises rented by the company and to retain
possession of the attached goods until he was shown convincing
evidence that the goods did not belong to the judgment debtor. In
the circumstances, we do not consider that an adverse costs order
against the Respondents, or any of them, is warranted.
10.
We
make the following order:
The
3rd
Respondent is ordered to forthwith deliver such of the movables
listed in paragraph 6 of this judgement as he attached in
execution, to the possession of the Applicant at House No. 3,
Sidvokodvo Railway Houses.
The
wasted costs of the execution are to be costs in the execution
against P. Ramuntu Freight Services (Pty) Ltd, the judgement
debtor.
No
order is made in respect of the costs of this application.
The
members agree.
PETER
R. DUNSEITH
PRESIDENT
OF THE INDUSTRIAL COURT
