IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN JOHANNESBURG)
Case No: J4324/99
In the matter between:
JOCELYN ANN TAYLOR Applicant
And
LETTA VILANCULA First Respondent
JAN JACOBUS MEYER Second Respondent
THE SHERIFF JOHANNESBURG NORTH Third Respondent
MERVYN ISRAEL SWARTZ N.O. Fourth Respondent
SYFRETS BOARD OF TRUSTEES (PTY) LTD Fifth Respondent
In re:
LETTA VILANCULA Applicant
And
JOCELYN ANN TAYLOR Respondent
___________________________________________________________
JUDGMENT
____________________________________________________________
WAGLAY, J
1. On 9 September 1999 the CCMA handed down an award in favour of
the first respondent and against applicant in terms whereof applicant
was ordered to pay to the first respondent an amount of R8000.00 in
compensation consequent upon first respondent’s unfair dismissal by
the applicant.
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2. The applicant failed to make payment in terms of the award and on 7
December 1999 the arbitration award was made an order of this Court.
On 22 February 2002 the Registrar of this Court issued a writ of
execution against the applicant. The Sheriff was directed to execute
the writ on the fourth respondent, who was cited in his capacity as a
duly appointed Trustee in the insolvent estate of the applicant’s
husband, Adrian Moshe Taylor. The sheriff was directed in terms of
the writ to take into execution the “incorporeal goods” of the applicant
and to realize same by public auction to liquidate the judgment debt.
3. The Sheriff of this Court attached applicant’s right title and interests
in and to the claimed “incorporeal goods” held by the fourth
respondent. The said “incorporeal goods” consisted of a claim
applicant had proved against the insolvent estate and comprised
mainly arrear maintenance (R24000) in respect of the applicant and
(R74000) in respect of her minor children. It should be noted that the
applicant and her husband are involved in an extremely acrimonius
divorce with the husband being accused of salting away alternatively
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hiding his assets. The husband has failed to make payments in lieu of
maintenance to the applicant. Interesting also is the undisputed
averment made by the applicant that the applicant’s insolvent
husband’s attorneys funded the first respondent (judgment creditor) in
instituting execution proceedings against the applicant.
4. Pursuant to the attachment a sale was held where the above
“incorporeal goods’ were sold to the second respondent (a business
associate of the applicant’s insolvent husband) for an amount of
R5814.00.
5. The applicant now seeks to set aside the writ of execution; the sale
that took place pursuant to the writ; and prays for an order of costs
against the second respondent because he is opposing this application.
6. The grounds upon which applicant seeks the setting aside of the
attachment of the writ and the subsequent sale of her claim in her
husband’s insolvent estate are the following:
6.1 There was no compliance with section 45 of the Rules of the High
Court (read with section 26 of the Labour Court Rules);
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6.2 That the writ purports to attach property incapable of being
attached and/or sold;
6.3 The attachment and sale is a manipulation and an abuse of the
process of Court as it is no more than a conduit for the insolvent,
to use the execution process through the first respondent’s credit
to frustrate and ultimately disentitle the applicant from receiving
maintenance due to her and the minor children; and finally
6.4 That the attached ‘incorporeal goods” comprised maintenance
payment.
7. Firstly with regard to non compliance with the relevant rules, rule 26 of
the Labour Court Rules provides that the High Court Rules are applicable in
respect of Labour Court matters in relation to execution. The relevant High
Court Rule that is of relevance is section 45. In terms of this rule, a
judgment creditor is in the first instance obliged to direct the Sheriff to first
demand satisfaction of the writ before the Sheriff can proceed to make an
attachment [s 45(3)]. What this presupposes is that no matter where the
assets, belonging to the judgment debtor, may be held, before the Sheriff can
make the attachment some form of notification to the judgment debtor is
obligatory. Furthermore where incorporeal rights and property are attached
the Sheriff is obliged to give notice of the attachment to all interested parties
[145(8)(c)(i)(a)].
8 In Reichenberg v Deputy Sheriff Johannesburg: In re
Reichenberg v Joel Melamed & Horwitz 1992 (2) SA 381 (WLD)
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383 BF the Court held that the requirement of demanding satisfaction
of a writ must be strictly adhered to and where there is no demand
there can be no valid attachment. In this matter applicant was unaware
until the sale had been finalized that her “incorporeal goods” had been
attached—she was not advised of this by the Sheriff or the Trustee (I
acknowledge that the trustee had no obligation to do so). The Sheriff
simply attended the offices of the insolvent’s Trustee and attached
applicant’s asset. Assuming that the Sheriff could have made a
demand for the satisfaction of the writ to the Trustee, there is no
evidence that he did so –there is no return of service to this effect.
Clearly when there is no demand there can be no valid attachment.
Furthermore there has also been no compliance of Rule 45(8)(c)(i)(a)
which required the Sheriff to give applicant notice of the attachment
of her “incorporeal property”.
9 Having regard to the nature of the incorporeal property I am satisfied
that the attachment and sale of applicant’s proved claim in the
husband’s insolvent estate should be set aside because of the sheriff’s
noncompliance of rule 45 of the High Court Rules. I arrive at this
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decision knowing full well that I have a discretion to allow the
attachment and the sale to stand notwithstanding first and third
respondent’s failure to comply with the rules and the “innocence” of
the second respondent in the matter.
10 The other grounds raised by the applicant on the basis of which she
seeks to set aside the writ and also set aside the attachment and sale of
her claim in her husband’s insolvent estate are all interlinked. What
the first respondent sought to attach was in the main money that the
insolvent was liable to pay the applicant in lieu of maintenance both
for herself and the minor children. The applicant in this respect argued
that what first respondent sought to attach was an asset which was so
personal to the applicant that she could not be deprived of it.
Applicant referred to the matter of McPhee v McPhee and others
1989 (2) SA 765 (NPD) where the Court held that:
“Some rights are so personal that they can never be transferred
to anyone else” at 768C
and further said:
“ Consider the (perhaps fanciful) case of a husband suing his
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wife for divorce. In the course of the proceedings the wife
obtains an order for maintenance; in some interlocutory step the
husband obtains an order for costs. Clearly…he could nor set –
off his claim for costs against her right to maintenance. Nor can
she cede her right to maintenance to a third party…The reality
is that the right is so personal to her husband that he cannot be
deprived of it and no one else could exercise it” at 768 EG.
11.Relying on the judgment of McPhee (supra) applicant argued that since
the “incorporeal property” related to maintenance for the applicant and her
children it was personal and therefore could not be sold or ceded and the
writ seeking to attach that should be set aside.
12. The second respondent argued that the attachment was an attachment of
a claim of maintenance that was already due and payable and had therefore
already accrued to the applicant. Since the maintenance had already accrued,
so second respondent continued, the claim was no longer a personal claim
whilst maintenance payable in future was.
13. According to the first respondent once maintenance payment is due but
not paid then that money is no longer incapable of being attached. The effect
of this argument is that a mother who may beg and borrow money to feed
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her children in the hope that she will collect maintenance from the father of
the child, may have little hope of doing so if she is one who has judgment
creditors following her. Because according to the first respondent’s
arguments no sooner do maintenance payments accrue a judgment creditor
could go ahead and attach that claim. To allow this would be to play in the
hands of those who deliberately seek to avoid payment of maintenance often
on malicious grounds and to ensure further hardship upon, particularly
women, so that they suffer maximum inconvenience frustration and anger.
This matter borders on being one where there appears to be a determination
on the part of the applicant’s husband to cause maximum hardship both to
the applicant and his own offspring. The applicant’s husband got himself
declared insolvent; his attorney funds the first respondent in pursuing her
claim. No doubt he and/or his lawyer provided the information about the
claim proved by the applicant in the insolvent estate, the insolvent’s alter
ego purchases the claim. The claim is purchased for six percent of its value.
14. In view of the above I am not satisfied that payment of maintenance even
where the maintenance was past due, can be attached, sold or ceded and as
such the warrant of execution seeking to attach the “incorporeal property”
which was essentially payment of maintenance, is liable to be set aside.
15. With regard to costs, notwithstanding the fact that the second respondent
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may be an innocent purchaser of the claim, the fact that he opposed the
application lays him open to be liable for the costs of this application. I am
satisfied having regard both to law and equity that costs should follow the
result.
In the result I make the following order:
1. The warrant of execution dated 21/22 February 2002 is hereby set
aside.
2. The attachment and sale that took place pursuant to the said warrant is
also set aside.
3. Second respondent is ordered to pay the costs of this application.
________________
WAGLAY J
DATE OF JUDGEMENT: 19 JANUARY 2005.
FOR THE APPLICANT: ADV AJ DANIELS instructed by Wertheim
Becker Inc.
FOR THE SECOND RESPONDENT: ADV IP GREEN instructed by
Kim Meikle Attorneys
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