This
is an urgent chamber application in which the applicant seeks interim
relief to the effect that the seizure and attachment of its Bank
account number 9140000213879 held with the third respondent Bank at
its Parklane Branch be suspended and that the seizure and attachment
of the applicant's shares, effected on 29 August 2018, be
suspended.
The
applicant seeks a further interdict restraining the first and second
respondents from “attempting any further seizure and attachments in
execution of the applicant's funds or bank accounts and applicant's
shares.”
The
final order sought is for the setting aside of the seizure and
attachment of the discharge from attachment of the applicant's
funds and bank account, the particulars whereof are given above, and
the applicant's shares. The applicant also prays that the first
respondent be ordered to pay costs of suit on the attorney-client
scale.
The
application is opposed by the first respondent.
Counsel
for the third respondent advised that his client has elected to abide
by the judgment in this matter.
The
attachments which the applicant complains of were made in execution
of the judgment of this Court given in Case Number HC5958/17
(Judgment Number HH250–18). The judgment was given on 16 May 2018,
registering for enforcement an arbitral award rendered by an
arbitrator in favour of the first respondent and against the
applicant.
The
judgment is extant.
After
the registration of the arbitral award, the first respondent caused a
writ of execution to be issued on 30 May 2018. On 12 July 2018, the
Sheriff, through a Notice of Seizure and Attachment, attached the
applicant's Bank
account and notified that a sum of US$1,492,970= should be
transferred into his Bank
account.
On
29 August 2018, the Sheriff attached certain shares which are said to
be held by the applicant in the companies named in the Notice of
Seizure and Attachment of that date.
These
are the attachments which the applicant complains of.
The
applicant's complaint, in relation to the attachment of the Bank
account, is that the attachment is unlawful because the first
respondent did not first obtain a garnishee order prior to attachment
of the account. In relation to the attachment of the shares, the
complaint is that there was no compliance with the requirements of
Rule 343 of the High Court Rules, 1971.
Counsel
for the applicant submitted that an attachment of a Bank
account can only be done in terms of Order 42. Order 42 Rule 377
provides as follows:
“377.
Court application for attachment of debt due to judgment debtor
A
judgment creditor who has obtained a judgment or order for the
recovery or payment of money, which judgment or order is unsatisfied,
may make a court application for an order that any money at present
due or becoming due in the future to the judgment debtor by a third
party within the jurisdiction (hereinafter called 'the garnishee')
shall be attached.”
The
above provision applies where a judgment creditor elects to enforce a
judgment by way of a garnishee order, and not, as in the present
case, where there has been an attachment of a Bank
account.
For
that procedure to be available, it is a requirement that there be
money “at present due or becoming due in the future to the judgment
debtor.”
It
has been held that a credit balance in a Bank
account is not money that falls within the ambit of Rule 377. See
Matarutse & Anor 1968 (4) SA 752 (R), cited in Samson Martin Meki
v Air Zimbabwe (Private) Limited & Ors HH27-18…,. There is no
need for the judgment creditor to apply for a garnishee order prior
to attachment of rights to money in a Bank
account. The rights to money in a banking account constitutes
incorporeal property. See Omerod v Deputy Sheriff, Durban 1965 (4) SA
670 (D); Simpson v Standard Bank of South Africa Ltd 1966 (1) SA 590
(W)….,.
That
being the case, no prior application to court is necessary to
validate the attachment of such rights.
The
Notice of Seizure and Attachment shows that what has been placed
under attachment is the Bank
account. The account number is stated in the notice of attachment.
The challenge to the attachment of the Bank
account must therefore fail.
In
respect of attachment of shares held in companies, Order 40 Rule
343(4), which deals with the attachment of incorporeal property and
incorporeal rights in property, provides as follows:
“(a)
The attachment shall only be complete when -
(i)
Notice of the attachment has been given, in writing, by the Sheriff
or his deputy to all interested parties and where the asset consists
of incorporeal immovable property or an incorporeal right in
immovable property, notice shall also be given to the Registrar of
Deeds in whose deeds registry the property or right is registered;
and
(ii)
The Sheriff or his deputy shall have taken possession of the writing
or document evidencing the ownership of such property or right, or
shall have certified that he has been unable, despite diligent
search, to obtain possession of the writing or document.”
It
is clear from the above provisions that the requirements stipulated
therein are necessary to complete the attachment and not to commence
the process of attachment.
The
applicant's complaint is therefore misplaced as the Sheriff does
not purport to have completed the process of attachment of the
shares.
There
is also a complaint made equivocally in the applicant's papers that
some of the attached shares do not belong to the applicant but to
third parties. Apart from the fact that the applicant has no locus
standi to represent those unnamed other parties, no detail is given
as to which of the attached shares do not belong to the applicant.
In
any event, the relief sought, both in the interim and as part of the
terms of the final order sought, explicitly speaks the “applicant's
shares” and not those of third parties. This complaint therefore
lacks validity.
The
complaint that the Sheriff made no inventory upon attachment is
factually incorrect as the Notice of Seizure and Attachment contains
the inventory. After all, as noted above, the attachment is not yet
complete as the Sheriff was yet to obtain the document evidencing
title in the shares at the time that the application was lodged.
The
applicant raised the issue of the costs of the arbitration
proceedings which he said were in dispute. Counsel for the applicant
submitted, and it has not been disputed, that the attachment pertains
only to the principal sum and does not include the costs of the
arbitration proceedings. This is also clear from the two Notices of
Seizure and Attachment which form part of the applicant's papers.
The
issue of the disputed costs of arbitration cannot therefore ground
the challenge to the attachments….,.
In
the result, IT IS ORDERED THAT:
1.
The application be and is hereby dismissed.
