registration of vehicle for licensing purposes is not conclusive or even indicative of the true owner

DEPUTY SHERIFF FOR THE DISTRICT OF HHOHHO

(interpleader)

V

A.L. MIZAN TRADERS (PTY)

(1st Claimant)

JULIET MABUZA

(2nd Claimant)

SWAZI BUS SERVICE (PTY) LTD

(3rd Claimant)

CASE NO. 736/97

Coram S.W. Sapire, CJ

For Applicant P.R. Dunseith

For Claimant J. Magagula

JUDGMENT

(28/01/99)

These are interpleader proceedings instituted by the Deputy Sheriff for the District of HHOHHO. The Sheriff, pursuant to a judgment of this Court ,in A.L. Mizan Traders (Pty) Ltd against Swazi Bus Service attached a vehicle in the hands of one Themba Mabuza. Themba Mabuza is on the evidence the sole proprietor on the judgment debtor and there appears to be no reason why the vehicle attached should not be sold in execution of the judgment.

These proceedings arsise through the intervention of Juliet Mabuza, the wife of the said Themba Mabuza. She claims the vehicle to be her property. She has filed an affidavit. She reports that during August 1998 the Applicant purporting to execute judgment of this Court handed down on the 28th November, 1997 in Civil Case No. 736/97, seized and attached a motor vehicle namely, 1992 Nissan LDV bearing registration number SD 852 WM. She says that the said motor vehicle belongs to her, the 2nd claimant and she is the registered owner thereof. A copy of the Registered certificate is annexed hereto marked “SC1”.

She goes on to make the allegation that the attachment was wrongful and unlawful in that she was not party to the proceedings in case No. 736/97 and that her property may not be attached to satisfy the judgment in that case. The second claimant accordingly claims an order releasing the said motor vehicle to herself. It is to be noted that in the affidavit no mention is made how second claimant came to be the owner of this vehicle.

It is true that the vehicle was at the time of the attachment listed and that in the registration documents she is reflected as the owner. As it has frequently been pointed out that the registration for licensing purposes is not conclusive or even indicative of the true owner. See AKOJEE VS SIBANYONI AND ANOTHER 1976(3) SA 440 W. Also MDLALO VS HENDRICKS 1973(1) SA 931. The second applicant did not in her affidavit describe how she became the owner of the vehicle but in evidence before the Court enlarged on the allegations in her affidavit.

I pause at this stage to mention that when she gave evidence her husband was sitting in Court without her testimony and was later called to collaborate the version of the facts. This is in conflict with the usual practice that witnesses who are to testify are not in Court and other witnesses evidence they are called to confirm are themselves testifiers. The reason for this is obvious and it is a very good practice which should be observed.

I cannot say to what extent Mr. Magagula’s error in this regard prejudices the 2nd claimant’s case. It is however a fact that has to be taken into consideration in considering the 1st claimant’s contention that the 2nd claimant’s case is a fabrication between her and her husband in order to frustrate the execution on the judgment against the defendant.

The vehicle in question was purchased in terms of a hire purchase contract. It was purchased by Themba Mabuza. Only after the vehicle had been fully paid and long after the expiry of the agreement was transfer of licensee effected in the Registry. At this time the defendant was already experiencing financial problems arising out of the damage by fire to the bus which it used in the conduct of the business.

The 2nd claimant maintains that the vehicle was really purchased for a business which was conducted by her late father- in -law and in which she assisted. The allegations in this connection are remarkably vague and not supported by any documentation whatsoever and I asked the 2nd claimant where were the books of this business purporting the purchase of the vehicle, she maintained that the books were kept by her husband. There was no reason why the husband should keep his father’s books. There is also no record of what payments were made and how these payments emanated from the business the arrangement for which he contends would be most unusual in Swazi society and hence that what was done was in accordance with Swazi law and custom is specifically contradicted by the evidence of an independent person by virtue of his position as member of the Chief’s Libandla or an expert in Swazi custom than she is.

The evidence of the 2nd claimant is contradicted by the evidence of Mntshali who described how at meetings called between the plaintiff and the defendant for discussing the payment of the judgment debt the defendant in the person of Themba offered the vehicle in question as security. It is true that he says that based on this offer he drafted a document to reflect the giving of the security but that Themba after taking time to consider and to discuss the matter with his family declined to execute the document. It is strongly argued by Mr. Magagula that this was indicative of the fact that Themba was not the owner of the vehicle. This argument can however not assist the 2nd claimant. She knew nothing about the events on which Mntshali testified and as far as Themba is concerned he denied that any offer of the vehicle as security was made. Now I find to be false that the vehicle indeed belonged to his father or to the 2nd Applicant. I would have expected Themba to say that in an effort to appease the judgment creditor he undertook to obtain permission to attach the vehicle. I am satisfied that Mntshali’s evidence on this aspect of the matter is to be accepted in preference to that of Themba. A further witness, Amin, who is a director of the plaintiff testified that Themba has been seen frequently driving the vehicle and that he on many occasions filled the vehicle at the plaintiff's filling station and the costs were debited into the defendant’s account. All this is consistent only with the defendant in the person of Themba being the owner of the vehicle.

The 2nd Claimant is also unable to overcome the difficulties she has in

asserting ownership. This indicates that whenever one has to deal with an allegation that ownership rests in someone other than the person in possession and who has apparent unfitted control over the object in question the court should exercise its utmost circumspection in assessing the claim by another person that he is nevertheless the owner thereof. It is the approach to be taken in such cases as Zandberg vs Van Zyl 1910 AD 302.

The 2nd claimant’s evidence therefore does not really take the matter any further than her affidavit and only favour is that the vehicle was registered with her as the licensee. This as we have seen is not conclusive and the circumstances of this case strongly suggest that the transfer of registration of the vehicle from 2nd claimant’s husband to herself was effected for some purpose other than to constitute her as the owner. Circumstances to the pleader proceedings must be answered in favour of the 1st claimant the interpleader.

The order that I make is that :

S.W. SAPIRE

CHIEF JUSTICE

CommonLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.commonlii.org/sz/cases/SZHC/1999/4.html