D.J.S v B.L.S (nee R) and Another (13089/16) [2023] ZAKZPHC 79 (10 August 2023)

D.J.S v B.L.S (nee R) and Another (13089/16) [2023] ZAKZPHC 79 (10 August 2023)

The court found that the sheriff did not comply with the mandatory procedures for attaching incorporeal movable assets as set out in Rule 45(8). The writ of execution authorised attachment of movable assets only and did not extend to incorporeal movable assets such as a member's interest in a close corporation. The sheriff failed to serve the writ on the close corporation, did not take possession of the document evidencing ownership, and did not notify the Registrar of Close Corporations. These procedural defects rendered the attachment invalid. The court held that the attachment must be set aside and ordered costs against the first respondent.

Citation
[2023] ZAKZPHC 79
Parties
Applicant: D[...] J[...] S[...]; Respondent: B[...] L[...] S[...] (nee R[...]); Respondent: THE SHERIFF, NEW HANOVER
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
10 August 2023
Case Number
13089/16
Procedural Posture
Urgent Application / Application to Set Aside Writ of Execution and Attachment
Outcome
Attachment of the applicant's member's interest in DJ S[...] Farming CC declared invalid and set aside. Costs awarded against the first respondent.
Judges
Mngadi
Legal Topics
Writ of Execution, Attachment of Incorporeal Assets, Maintenance Arrears, Divorce Proceedings
Civil Procedure Family and Children Writ of Execution Attachment of Incorporeal Assets Maintenance Arrears Divorce Proceedings

Case Brief

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Parties

D[...] J[...] S[...]

Applicant

B[...] L[...] S[...] (nee R[...])

Respondent

THE SHERIFF, NEW HANOVER

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Writ of Execution and Attachment

Legal Issues

  1. 1 Whether the attachment of the applicant's member's interest in DJ S[...] Farming CC pursuant to the writ of execution was valid.
  2. 2 Whether the prescribed procedure for attachment of incorporeal movable assets was followed.
  3. 3 Whether the writ of execution authorised attachment of incorporeal movable assets.

Ratio Decidendi

The court found that the sheriff did not comply with the mandatory procedures for attaching incorporeal movable assets as set out in Rule 45(8). The writ of execution authorised attachment of movable assets only and did not extend to incorporeal movable assets such as a member's interest in a close corporation. The sheriff failed to serve the writ on the close corporation, did not take possession of the document evidencing ownership, and did not notify the Registrar of Close Corporations. These procedural defects rendered the attachment invalid. The court held that the attachment must be set aside and ordered costs against the first respondent.

Court Disposition

Attachment of the applicant's member's interest in DJ S[...] Farming CC declared invalid and set aside. Costs awarded against the first respondent.

Orders

  • The attachment for the applicant's member's 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.
  • The first respondent is ordered to pay costs of the application.