Sheriff, Bloemfontein - West v KPSA Investment Inc & others (4552/2019) [2021] ZAFSHC 136 (7 May 2021)

Sheriff, Bloemfontein - West v KPSA Investment Inc & others (4552/2019) [2021] ZAFSHC 136 (7 May 2021)

The court held that while cession of a future right (spes) is generally permissible, section 3(2) of the Matrimonial Property Act 88 of 1984 expressly prohibits the transfer and attachment of a spouse's accrual right. The Third Claimant's cession agreement sought to transfer Westraadt's right to accrual, which is not permitted by statute. Consequently, the Third Claimant's claim is invalid and must be rejected. The First Claimant, as judgment creditor, retains its entitlement to the attached property. Costs are awarded against the Third Claimant for causing unnecessary litigation.

Citation
[2021] ZAFSHC 136
Parties
Applicant: Sheriff, Bloemfontein - West; Respondent: KPSA Investments Inc; Respondent: FJ Senekal Inc
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 May 2021
Case Number
4552/2019
Procedural Posture
Interpleader Application / Judgment
Outcome
The Third Claimant's claim is rejected. Costs are awarded against the Third Claimant in favour of the First Claimant.
Judges
C Nekosie
Legal Topics
Interpleader Proceedings, Cession of Future Rights, Matrimonial Property Act, Attachment of Accrual
Civil Procedure Commercial and Corporate Interpleader Proceedings Cession of Future Rights Matrimonial Property Act Attachment of Accrual

Case Brief

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Parties

Sheriff, Bloemfontein - West

Applicant

KPSA Investments Inc

Respondent

FJ Senekal Inc

Respondent

Procedural Posture

Interpleader Application / Judgment

Legal Issues

  1. 1 Whether the cession of a future right (spes) to accrual in divorce proceedings is valid and capable of attachment.
  2. 2 Whether the Third Claimant's claim based on cession takes precedence over the First Claimant's judgment creditor claim.
  3. 3 Whether the accrual right under section 3(2) of the Matrimonial Property Act 88 of 1984 is transferable or attachable.

Ratio Decidendi

The court held that while cession of a future right (spes) is generally permissible, section 3(2) of the Matrimonial Property Act 88 of 1984 expressly prohibits the transfer and attachment of a spouse's accrual right. The Third Claimant's cession agreement sought to transfer Westraadt's right to accrual, which is not permitted by statute. Consequently, the Third Claimant's claim is invalid and must be rejected. The First Claimant, as judgment creditor, retains its entitlement to the attached property. Costs are awarded against the Third Claimant for causing unnecessary litigation.

Court Disposition

The Third Claimant's claim is rejected. Costs are awarded against the Third Claimant in favour of the First Claimant.

Orders

  • The Third Claimant's claim on the property attached by the Applicant in return number 891706 issued on 18 February 2021 at or near Bloemfontein is rejected.
  • The Third Claimant is liable to pay the costs of the First Claimant, including cost of counsel on a party and party scale.