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[2023] ZAKZPHC 79
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D.J.S v B.L.S (nee R) and Another (13089/16) [2023] ZAKZPHC 79 (10 August 2023)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 13089/16
In
the matter between:
D[...]
J[...] S[...]
APPLICANT
and
B[...]
L[...] S[...] (nee R[...]
)
FIRST RESPONDENT
THE
SHERIFF, NEW HANOVER
SECOND RESPONDENT
ORDER
1.
The attachment for the applicants’ members interest in DJ
S[...] Farming
CC in terms of the writ fo Execution issued by
the Registrar of this court on 6 April 2022 is declared invalid
and is set
aside.
2.
The first respondent is ordered to pay costs of the application.
JUDGMENT
Delivered
on:
Mngadi
J
[1]
The applicant seeks an order setting aside a writ of execution and
the attachment
carried out pursuant therof, alternatively, an order
suspending execution of the writ pending the finalisation of a
divorce action.
The first respondent opposes the application.
[2]
The applicant is D[...] J[...] S[...] an adult male
businessman. The first
respondent is B[...] L[...] S[...] an
adult female person. The second respondent is the Sheriff, New
Hanover.
The second respondent has not taken part in these
proceedings.
[3]
The applicant and the first respondent are married to each other by
civil marriages
out of community of property. There are two
children born out of the marriage aged twenty (20) years and sixteen
(16) years
respectively. The applicant and the first respondent
have a pending divorce action instituted in August 2013. On 23
April 2014 an order for maintenance
pende lite
was made
againstt the applicant. The first respondent claims that the
applicant fell into arrear maintenance totalling R594
235.00 which
resulted in her deposing to an arrear maintenance affidavit in
support of an application for the writ of execution
againt the
movable assets of the applicant. The writ of execution was
issued on April 2022.
[4]
The applicant states that the Sheriff handed to him the writ of
execution. He
communicated with the first respondent but they
could not agree on the arrear maintenance. The applicant in his
founding
affidavit has set out in detail the basis of his contention
that the amount of arrear maintance stated in the writ is incorrect.
The first respondent in detail sets out the basis of her claim that
the amount in the writ is the correct amount of arrear maintenance.
In my view, it remains an unresolved on the the papers the issue of
the correct amount of arrear maintenance. It is, therefiore,
not an issue for me to take into account to decide whether to set
aside or suspend the execution of the writ. However, the
applicant challenges the execution of the writ on other grounds.
[5]
The applicant states that the first respondent has caused his
member’s interest
in DJ S[...] Farming CC to be attached
pursuant to the writ of execution in question. He is the
sole member of the
close corporation which is used to conduct a
business. He states that the writ of execution was not served
on the close corporation
which is a peremptory requirement.
The writ issued on 6 April 2022 directed the Sheriff to attach
and take into execution
the movable goods of the abovenamed plaintiff
and to cause to be realised by public auction the sum of R594 234.00
in satisfaction
of the judgment obtained .
[6]
The first respondent states that the service of the writ was effected
on the applicant. The applicant
as the judgment debtor
was the correct person to be served with the writ, she contends.
She , further, states that
the applicant is the sole member of
the close corporation and he has knowledge of the writ of execution
and notice of attachment.
She states that she is waiting for
the sheriff to report on a sale in execution of the applicant’s
members interest
She admits that the applicant’s members
interest has been attached pursuant to the issuing of the writ of
execurion and she
disputes that the writ is invalid.
[7]
It is common cause that pursuant to the issuing of the writ, the
applicant’s membership interest in DJ S[...]
Farming CC a
close corporation was purportedly attached. The applicant states,
which is not denied, that farming operations
are conducted through
the vehicle of the close corporation. The close corporation
owns the immovable property, livestock,
vehicles and other
equipment. He states that as a sole member of the close
corporation a sale in execution of his member’s
interest in the
close corporation shall effectively divest him of the control of the
entity, his use and occupation of the farm
and the residence thereon
which is his personal residence.
[8]
The first respondent admits that the writ was served on the
applicant. The sheriff has not
filed an answering affidavit and
there is no return of service. The contention that the writ was
served on the applicant as the
judgment debtor stands undisputed.
A members interest in a close corporation is an incorporeal movable
asset. It may
not be attached in terms of an ordinary warrant
authorising attachment of movable assets. In addition, it may
not be attached
not following the prescribed procedure for the
attachment of incorporeal property. The writ in question
authorised
attachment of only movable assets. It did not authorise
attachment of incorporeal movable assets. In
Badenhorst v
Pretoria Sentraalen Andere
1998(4) SA 132 (T) the court stated
that a writ issued to attach incorporeal movable asset is not an
ordinary writ in terms of
Rule 45(3). The Sheriff, in my view,
in attaching incorporeal movable asset acted contrary to the terms of
the warrant.
[9]
The attachment of incorporeal movable assts is regulated by Rule
45(8) . The sheriff did not serve the
writ on the close
corporation. In addition, the sheriff failed to take possession
of the document serving as proof of the
ownership of the incorporeal
movable asset or to report that after diligent search and enquiries
he could not find the document.
In addition, the Sheriff did not
serve the writ or give notice of the attachment to the Registrar of
close corporation. In
Badenhoorst
139J it is pointed out that
failure to comply with the prescribed requirements in effecting the
attachment, the attachment is invalid.
[10]
It follows that there are grounds for the setting aside of the
attachment of the applicant’s
members’ interest in the
close corporation.
[11]
It is ordered as follows:
1.
The attachment of the applicants’ members interest in DJ S[...]
Farming
CC in terms of the writ of Execution issued by the
Registrar of this court on 6 April 2022 is declared invalid and
is set
aside.
2.
The first respondent is ordered to pay costs of the application.
Mngadi
J
APPEARANCES
Case
Number:
13089/2016P
For
the applicant:
S
Franke
Instructed
by:
Grant
& Swanepoel Inc.
PIETERMARITZBURG
For
First Respondent:
S
Moola
Instructed
by:
Prinsloo
Wright Inc
c/o
Lister & Lister
PIETERMARITZBURG
Date
of Hearing:
17
July 2023
Date
of Judgment:
10
August 2023