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[2018] ZAFSHC 23
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Oscar Nite (Pty) Ltd v The Standard Bank of South Africa Ltd (4867/2017) [2018] ZAFSHC 23 (8 March 2018)
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Certain
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IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case
number:
4867/2017
In
the matter between:
OSCAR
NITE (PTY)
LTD
Applicant
[Registration
number: […..]] and
THE
STANDARD BANK OF SOUTH
AFRICA
LTD
1
st
Respondent
THABANG
AZAEL MOTLOI
N.O.
2
nd
Respondent
NKGESA
KENNETH RATLABALA N.O.
3
rd
Respondent
THE
SHERIFF, BLOEMFONTEIN WEST
4
th
Respondent
HEARD
ON:
22
FEBRUARY 2018
JUDGMENT
BY:
MOLITSOANE, AJ
DELIVERED
ON
:
8 MARCH 2018
[1]
The
applicant seeks an order in terms of which the attachment of its bank
account held at the First Respondent is declared incomplete,
irregular, unlawful, null and void and/or of no legal force. The
Applicant further seeks an order to set aside the said attachment.
This application is opposed by the second and third respondents.
BACKGROUND
FACTS
[2]
On
the 20th September 2016 the second and third respondents obtained
default judgment against the Applicant for payment of R178
538-11 and
other ancillary relief.
[3]
On
the 12th December 2016 the second and third respondents caused a writ
of execution to be issued followed by a notice in terms
of Uniform
Rule 45(12)(a).
[4]
On
the 15th December 2016 the sheriff of this court served the writ of
execution on the 1st respondent and thereby proceeded to
attach the
bank account of the Applicant held by the first respondent. There
were no funds available in applicant's bank account
and a
caveat
was registered against the
applicant's account.
[5]
On
the 23rc:1 January 2017 the sheriff purported to serve the notice in
terms of Uniform Rule 45(12)(a) and the writ of execution
on the
respondent.
[6]
It
is this attachment of the 15
th
December 2016 which the Applicant seeks to nullify.
SUBMISSIONS
BY COUNSEL
[7]
At
the onset in needs to be mentioned that the Applicant did not file
any replying affidavit nor did the applicant file any heads
of
argument. The applicant in the morning of the applicant requested the
matter to be postponed and the application was strenuously
opposed by
counsel for the second and third Applicant. I refused the application
for a remand and I gave my reasons
extempore.
I felt that it was in the interest
of justice that I should proceed with this matter in spite of the
fact that no heads of argument
were filed by the applicant.
[8]
Counsel
for the Applicant submitted that the writ of execution and the
Uniform rule notice 45(12)(a) were not served on the respondent.
In
this regard, so the argument goes, compliance with uniform rule
45(8)(c) was a
sine qua non
for
the operation of Rule 45(12)(a).
[9]
It was submitted further on behalf of the Applicant that upon proper
construction
of Rule 45(12)(a), the funds that were to be attached
were funds that were held in Applicant's account at the time of the
execution
process. It was thus contended on behalf of the Applicant
that Uniform Rule 45(12)(a) did not cover future payments to be made
to the first respondent.
[10] On
the other hand, it was submitted on behalf of the second and third
respondents that both the writ
of execution and the notice in terms
of Rule 45(12)(a) were served at the registered address of the
applicant, as well as on the
first respondent.
[11]
It was submitted further on behalf of
the second and third respondents that that future payments into the
applicant's bank account,
after attachment, are in fact "debts
accruing" by the 1
st
respondent to the Applicant as envisaged in Rule 45(12)(a) and were
thus liable to attachment.
ISSUES
FOR DETERMINATION
[12]
The
first issue for determination is whether the writ of execution of
Uniform Rule 45(12)(c) was served on the Applicant.
[13]
The
second issue for determination is whether the attachment of the bank
account extends to future payments standing to the credit
of the
Applicant.
APPLICABLE
LAW
[14]
Uniform
Rule 45(8) makes prov1s1on for the attachment of incorporeal
property. The relationship between a banking institution and
its
customer whose account with it is in credit is that of a debtor and
creditor. The customer makes deposits to the credit of
his account
with the bank, and the “transaction is not one of
depositum,
but of loan without interest”.
- See
Ormerod v Deputy Sheriff,
Durban
1965
(4} SA 670
(D & CLD) at 673 par D-E.
[15]
Rule
45(8)(c) indicates that where an attachment is made a notice of
attachment must be given to the judgment debtor.
[16]
Uniform Rule 45(12)(a) of the provides
as follows:
"(12)
(a) Whenever it is brought to the knowledge of the sheriff that there
are debts which are subject to attachment, and
are owing or accruing
from a third person to the judgment debtor, the sheriff may, if
requested thereto by the judgment creditor,
attach the same, and
thereupon shall serve a notice on such third person, hereinafter
called the garnishee, requiring payment by
him to the sheriff of so
much of the debt as may be sufficient to satisfy the writ, and the
sheriff may, upon any such payment,
give a receipt to the garnishee
which shall be a discharge,
pro tanto,
of the debt attached."
[17] What
an 'accruing debt' is, has been explained as follows in
Honey v
Blanckenberg v Law
1966 (2) SA 43
at 48A-B:
"An
accruing debt is therefore a debt not yet actually payable but a debt
which is represented by an existing obligation."
APPLICATION
OF THE LAW TO THE FACTS
[18]
Uniform
Rule 8(1)(i) provides that an attachment will only be complete once
the sheriff had complied with the provisions of this
sub rule. An
attachment of a right, title and interest of judgment debtor will
only be complete once the sheriff has given notice
of the attachment
in writing to all interested parties. In this case Applicant being
the holder of the account is an interested
party.
[19]
It
is not disputed that on the 15th December 2016 the sheriff of this
court effected service of the writ and a notice in terms of
Uniform
Rule 45(12)(c) on the first respondent. Thereafter the same documents
were served at the address 22 Memveille, Reiveille
Crescent, General
De Wet, Bloemfontein. Such a service was effected on the registered
address of the Applicant as evident from
the CIPC search report as
annexed as Annexure C to the opposing affidavit. Respondent did not
file a replying affidavit and thus
did not dispute that this address
was not its address.
[20]
Rule
45(8)(c) does not oblige service to be effected personally. It would
in any case be impossible to do so in view of the juristic
personality of the Applicant. According to the sheriff, service was
indeed effected in terms of Rule 4(1)(a)(v). I am satisfied
that the
service effected herein was proper and was effected in terms of the
rules. This point raised by the Applicant stands to
be dismissed.
[21] Not
only does Rule 45(12)(a) of the rules empower sheriff to attach debts
owing but it is clear that
the sheriff may also attach accruing
debts. It is therefore, not correct that Rule 45(12)(c) is limited to
the funds held by the
first respondent at the time of the execution
of the process.
[22] It is
my considered view that the attachment of the incorporeal property
extends to future or accruing
debts.
[23] In
the premises I make the following order:
ORDER
[24]
The Application is dismissed with costs.
P.E.
MOLITSOANE, AJ
On behalf of
applicant:
Ms A Belot
Instructed
by:
AP Belot Attorneys
Bloemfontein
On
behalf of 2nd & 3rd respondents:
Adv Groenewald
Instructed
by:
Van der Berg Van Vuuren
Attorneys
Bloemfontein