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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2023-024319
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
THE SHERIFF OF THE HIGH COURT
SANDTON Applicant
And
G[...] H[...] (PTY) LTD Claimant
In re:
M[...] F[...] M[...]
[Identity Number: 9[...]] Execution Creditor
And
F[...] M[...]
[Identity Number: 8[...]] Execution Debtor
And
FIRST NATIONAL BANK LIMITED Garnishee
WRITTEN REASONS FOR THE ORDER
KHABA AJ
[1] This matter concerns an opposed interpleader proceedings launched by the Sheriff of
the High Court (Sandton) pursuant to the attachment of funds held in the execution
debtor’s First National Bank seven -day notice account (“FNB savings account”) with
account number 7[...], in favour of the execution creditor for arrear pendente lite
maintenance in terms of Rule 43 and non – compliance by the execution debtor with
the court order handed down by the Honourable Justice Senyatsi J on 22 January
2024. (“the Justice Senyatsi order”). On 3 December 2025, I delivered my order
without the reasons. On 15 December 2025, the claimant applied in terms of Rule
49(1)(c) for written reasons to be provided in respect of the order that I delivered, with
specific reference to the findings of fact and/or rulings of law relied upon in granting
such order. These are the reasons for the order.
[2] Before setting out the issues and the reasoning, it is necessary to record the
unsatisfactory procedural context. Counsel appearing for the claimant, filed no heads
of arguments. Upon enquiry from counsel of his failure to file his head s of arguments
and to comply with the provisions of the Practice Manual read together with the
Consolidated Directive 1 of 2004 as amended of this Division, he informed the court
that he was only briefed on the day of the hearing of this application, hence the non-
compliance with the practice directives. This conduct is contrary to the Practice
Directive of this Division and unacceptable. Counsel for the claimant “practice note”
sought not to argue the merits of the interpleader, but instead to have the matter
removed from the roll on the basis of an alleged incorrect enrolment of the matter.
This procedural point was not substantiated and was, in my view, a distraction from
the real issues that required determination. The only substantive argument s and
written submissions before court were those of the execution creditor who sought the
final dismissal of the interpleader. In the absence of any substantive legal of factual
challenge from the claimant’s side, the court was compelled to decide the matter on
the papers and arguments as presented.
The Parties and the Factual Background:
[3] The applicant is the Sheriff of the High Court (Sandton), who brought this application
in terms of Rule 58(1) of the Uniform Rules of Court.
[4] The claimant is G[...] H[...] (Pty) Ltd, represented by its sole director Ms. R[...] M[...],
the mother of the execution debtor, Mr. F[...] M[...]. The claimant is the sole director of
the company.
[5] The execution creditor is Ms. M[...] F[...] M[...] (born O[...]). Ms. M[...] is the judgement
creditor in underlying divorce and maintenance proceedings.
[6] The execution debtor is Mr. F[...] M[...], the judgment debtor in the said proceedings.
[7] The Garnishee is First National Bank Limited (“FNB”), where the disputed account is
held. The dispute centres on funds held in an FNB savings account, with account
number: 7[...] (“the account”). The execution creditor, having obtained a Rule 43
maintenance order granted against the execution debtor by the Honourable Justice
Seyantsi J on 22 January 2024.
The following chronology, distilled from the affidavits and documents filed by the execution
creditor, is largely undisputed and forms the factual matrix of this dispute:
[8] On 28 July 2023 , the execution debtor filed a financial disclosure form (“FDF”) in the
Rule 43 proceedings. In his sworn statement he listed the FNB account, with account
number: 7[...] as his personal asset . There was no mention of any liability to, or
cession in favour of the claimant or any other entity in respect of this account.
[9] On 22 January 2024, the Honourable Justice Seyantsi J granted a Rule 43
application and ordered the execution debtor to make payment of maintenance to the
execution creditor in the amount of R 45 000.00 monthly for herself and the parties
child. The execution debtor was further ordered to make payment in the amount of R
50 000.00 towards the execution creditor’s legal costs.
[10] On 13 February 2024, the execution debtor filed an application for leave to appeal
the Rule 43 order granted by the Honourable Justice Senyatsi J despite such orders
being generally unappealable in terms of section 16(3) of the Superior Court’s Act 10
of 2013.
[11] On 31 March 2024, the execution creditor caused a writ of execution to be issued
attaching the execution debtor’s FNB savings account in the amount of R 48 154.40.
The attachment was effected on 4 April 2004.
[12] On 12 April 2024 a writ of execution was issued by this court against the execution
debtor’s FNB account or any other assets of the execution debtor for the realisation
of the sum of R 103 532.00 for arrear Rule 43 maintenance for a period of February
2024, in pursuance of the Honourable Justice Senyatsi J, Rule 43 court order.
[13] The FNB savings account was disclosed as a personal asset and listed in the
execution debtor’s financial disclosure form , which was delivered on 28 July 2023
during the Rule 43 proceedings wherein the execution creditor sought , inter alia ,
maintenance in respect of herself and the parties’ son.
[14] Given the execution debtor’s demand and advice to FNB that the Rule 43 order was
[14] Given the execution debtor’s demand and advice to FNB that the Rule 43 order was
subject to an application for leave to appeal, despite such orders being generally
unappealable. FNB required the execution creditor to obtain a court order to retain
the funds pending the outcome of the application for leave to appeal. This gave rise
to an urgent application being launched by the execution creditor to interdict any
transacting in the execution debtor’s FNB account.
[15] On 16 May 2024 , after an opposed hearing wherein all issues relating to the FNB
savings account and the writ of execution in respect of the attachment of the funds in
the FNB account were ventilated, an order was granted by the Honourable Justice
Nharmuravate J (“the Nharmuravate J order”), in terms of which FNB were interdicted
from releasing any monies from the execution debtor’s FNB banking account with
account number 7[...] pending the application for leave to appeal.
[16] Upon confirmation by the Honourable Justice Senyatsi J that no appeal lies, in the
defective leave to appeal application against a Rule 43 order, the execution creditor’s
attorneys of record informed FNB and requested that the interdict funds be paid into
their trust account in respect of the execution debtor’s arrears and contempt of the
order of Senyatsi J.
[17] Before FNB could attend to payment of the funds held in the FNB savings account,
the funds were intercepted by an interpleader, pursuant to the claimant’s claim of a
cession over the FNB savings account.
[18] At no stage during the Rule 43, nor in the FDF, nor in the urgent interdict proceedings
did the execution debtor allege that the funds were subject to a cession nor did the
execution debtor raise any liability to the claimant herein.
[19] The claimant alleges that on 27 August 2024 (post the hearing of the Rule 43
application, the Honourable Justice Seyantsi J order, the issuing of the writs, the
urgent interdict application and the Honourable Justice Nharmuravate J order) , a
written cession agreement was entered into between the claimant and the execution
written cession agreement was entered into between the claimant and the execution
debtor, in terms of which the execution debtor ceded all the execution debtor’s rights
title and interest in and to the shareholding of V[...] S[...] S[...] (Pty) Limited and all the
execution debtors rights and interests in the FNB savings account to the claimant, as
security for an acknowledgment of indebtedness by the execution debtor in favour of
the claimant.
[20] On 21 October 2024 the applicant informed the execution creditor attorneys that the
claimant claimed funds in the FNB account by way of the claimant holding a cession
over funds. This was the execution creditor first knowledge about the alleged
cession.
[21] It is further imperative that to note that at no time during the Rule 43 proceedings,
inclusive of the delivery of the execution debtor’s financial disclosure form deposed to
under oath, which included financial statements relating to the execution debtor nor,
during the urgent interdict application was any averment made about the alleged
cession.
[22] On 30 October 2024, the applicant, faced with these competing claims, launched a
notice in terms Rule 58 (1) of the Uniform Rules of Court, advising of two parties
adverse claims over certain movable property under attachment. The notice called
upon the claimants to lodge the particulars of their respective claims.
Evaluation of the Evidence and Submissions:
[23] The execution creditors’ claim derives from court orders and writ s of executions that
were perfected through attachments before the cession agreements came into
existence. A creditor who has lawfully attached property in execution obtains a real
right (a ius in re aliena) which takes precedence over subsequent personal rights
created by the debtor. The cession, even if valid inter partes, cannot defeat the prior
perfected real right of the execution creditor.
[24] The execution debtor failed to disclose, in his financial disclosure form of 28 July
2023 and throughout the subsequent litigation , including an urgent interdict
application in May 2024 concerning this every account. The execution debtor
consistently represented the account and its funds as his personal asset. The
execution debtor disclosed liabilities but made no mention whatsoever of any
indebtedness to the claimant or any cession of the account.
[25] The cession emerged only after the confirmation by the Honourable Justice of
Senyatsi J order, that no appeal lies along with confirmation of the invalidity of the
leave to appeal. The alleged cession agreement was only concluded on 27 August
2024 months after the attachment. The execution creditor first learned of this cession
agreement from the applicant (“the Sheriff”) on 21 October 2024.
[26] The cession agreement purports to cede the execution debtors rights in the
shareholding of V[...] S[...] S[...] (Pty) Ltd as security for a debt. It pertains only to the
cession of the right, title and interest in and to his shareholding of V[...] S[...] S[...]
(Pty) Ltd. Crucially, it contains no clause expressly ceding the right to the specific
FNB account in question. The attempt to extend the cession to this account is an
after the fact inter pretation and it is an impermissible and ex post facto
reinterpretation.
[27] The claimant could not specify the amount ceded, stating vaguely it was “the entire
contents” of the account, further undermining the credibility of a genuine security
arrangement. Counsel for the respondent relied on In Ebrahim v Deputy Sheriff
Durban and Another20, Henning J remarked as follows:
“The test whether a claimant has discharged the onus of proving his ownership to movable
property which is not in his possession is whether, in a result, the probabilities are balanced
in his favour. The strength of the evidence which he has to produce to succeed depends on
the circumstances of the particular case. In an interpleader suit, for example, the judgment
creditor may be at a grave disadvantage because he is not in a position to adduce evidence
to rebut that of a claimant who says that the disputed property is his, although he agreed to
to rebut that of a claimant who says that the disputed property is his, although he agreed to
let the judgment debtor have possession of it. Apart from other considerations, the Court
would no doubt in such a case require, the claimant to produce clear and satisfactory proof of
his ownership. On the other hand, where the source of rebuttal evidence is available to and
is utilised by the party who disputes the claimant’s claim, the position appears to be
different; for then the disadvantage to which I have referred largely disappears. I might
mention one further factor which might of particular importance in deciding whether the
claimant’s evidence should be approached with more than normal caution, and that is the
nature of the article of which the ownership is in dispute.”
[28] The claimant’s case as set out in her affidavit is scant, on detail and largely
defensive. It asserts the validity of the cession and claims the funds virtue thereof. It
denies collusion and labels the execution creditors allegations as defamatory. The
claimant affidavit is threadbare. It relies on the assertion of the cession and offers no
credible explanation as to why the cession was never disclosed by the execution
debtor in multiple court proceedings were his financial position was directly in issue;
why the cession post -dates the attachment; The discrepancy between the subject
matter if the written cession( shareholding) and the asset now claimed (bank
account(s).
[29] The trite law of cession, requiring a genuine intention (animus transferredi and
animus acquiredi) to transfer a right. The enquiry into intention is factual, and a
feigned or simulated cession must be disregarded.
[30] The cession agreement, properly interpreted, does not encompass the bank account.
The attempt to argue otherwise contradicts the execution debtors own sworn
disclosure that the account was his personal savings, unrelated to V[...] S[...] S[...]
(Pty) Ltd.
[31] A claimant must produce clear and satisfactory proof of ownership, especially where
circumstances invite suspicion. At the hearing of this matter, counsel for the claimant
oral submissions did not engage substantively with the merits of the interpleader, the
validity of the cession, or factual chronology.
The Rulings of Law and Application to the Facts:
[32] The points raised by counsel for the claimant were unmeritorious and appeared
dilatory. The matter was properly enrolled for hearing. Counsel ’s failure to file heads
of arguments on merits, despite the Practice Directives, left the court with no
substantive counter argument to consider. A court cannot countenance a strategy of
avoiding a merits hearing by raising weak procedural points at the eleventh hour.
[33] The writs of execution were issued, and the attachment was lawfully effected in April
2024. This created a secure real right in favour of the execution creditor over the
specific funds. The purported cession of August 2024, being subsequent in time,
cannot defeat this prior real right. This point alone is dis positive of the interpleader in
favour of the execution creditor.
[34] As a matter of contractual interpretation, the cession agreement is unequivocal. It
cedes rights in the shareholding of V[...] S[...] S[...] (Pty) Ltd. It makes no mention of
ceding rights to a specific FNB bank account. The claimant’s attempt to stretch the
agreement to cover the bank account is legally untenable. There is no evidence
linking this personal savings account (explicitly declared as such the execution
debtor) to the shareholding of V[...] S[...] (Pty) Ltd suppliers.
[35] A cession must reflect the genuine intention of the parties to transfer a right. The
surroundings circumstances in this case overwhelmingly point to the lack of genuine
intention to cede the bank account funds at the time the cession agreement was
signed. The timing (post attachment), the non - disclosure in prior legal proceedings
all strongly indicate that the cession was contrived as a stratagem to shield the funds
from execution. I found that, to the extent the claimant alleges the cession covers the
account, it is a simulation transaction and cannot be upheld.
[36] The execution debtor’s consistent sworn non -disclosure of this “debt” and security in
multiple court proceedings is damning. It is inconceivable that a genuine creditor
holding security over a major asset would not have been disclosed in the financial
holding security over a major asset would not have been disclosed in the financial
disclosure form or raised as a defence when those very funds were attached. The
timing is highly suspicious, and indicative of a stratagem concocted to prevent the
release of funds to the execution creditor. The court must look at the true intention of
the parties. The true intention here was not to create a genuine security cession but
to simulate a transaction to place the funds beyond the reach of the execution
creditor. This simulation must be disregarded.
[37] The totality of the circumstances overwhelmingly supports the execution creditor’s
contention that the cession is not genuine. Even if the intention were genuine, the
cession agreement is clear and unambiguous. It cedes rights in the shareholding of
V[...] S[...] S[…] (Pty) Ltd. It does not mention the FNB account. The expression unius
est exclusio alterius principle applies. The account is not subject to this cession.
[38] A claimant in an interpleader must prove its claim with clear and satisfactory
evidence, particularly where rebuttal evidence points to contrivance. The claimant
provided only a bare cession agreement, which on its face does not cover the bank
account, and a bald assertion of its validity. The claimant provided no explanation for
the non -disclosure, the timing, or the relationship between the ceded shareholding
and the bank account. It failed to rebut the powerful inference of simulation drawn by
the execution creditor. Consequently, it failed to discharge its onus.
[39] The execution creditor has demonstrated, on a balance of probabilities, that her
claim to the funds and the writs of execution, which were perfected by attachment
prior to the purported cession, is superior and valid. The claimant has failed to
discharge the evidentiary burden of proving a valid, pre -existing right to the attached
funds. Conse quently, the execution creditor was the successful claimant in the
interpleader.
Conclusion:
[40] For the reasons set out above, I found that the claimant has no valid claim to the
funds held in FNB account 7[...] that can supersede the prior protected right of the
execution creditor. The interpleader application therefore served no purpose and
lacked merit, and the execution creditor was entitled to the attached funds. There
were no genuine competing claim s to justify the applicant’s (“the Sheriff) continued
holding of the funds or the court’s intervention to decide between the two adverse
claimants.
[41] The attempt to frustrate the execution creditor’s lawful claim through what appears to
be a collusive and contrived cession warranted a punitive costs order. The claimant
and the execution debtor acted in concert to undermine the court process. It was just
and equitable that they be held jointly and severally liable for the costs on the
attorney and client scale, which included cost of counsel on scale C. Costs should
follow the result. There were no reason given as to why the execution creditor should
not be entitled to her costs.
Order:
[42] Accordingly, I made the following order:
1. The interpleader is dismissed.
2. The claimant and execution debtor, jointly and severally, to pay the execution
creditors costs of the application on the attorney and client scale, including the
costs of counsel on Scale C
_________________________________
KHABA AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Delivered: Th e written reasons for the order delivered in this matter on 03 December 2025 , are digitally
delivered by circulation to the parties’ representatives by email and by uploading them to the electronic file
of this matter on CaseLines. The date of the delivery of these reasons is deemed to be 13 January 2026.
Counsel for the Claimant: Adv. N Riley
Instructed by: Michael Marshall Attorneys
Email: mikem@michaelmarshallattorneys.com
Counsel for the Execution Creditor: Adv. L Grobler
Instructed by: Shaheed Dollie Inc
Email: nabeelah@sdollieinc.co.za
Date of hearing: 03 December 2025
Date of order: 03 December 2025
Date of request for reasons: 15 December 2025
Date of reasons: 13 January 2026
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