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

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 4552/2019

In the matter between:

SHERIFF, BLOEMFONTEIN - WEST

APPLICANT

and

KPSA

INVESTMENTS INC

1st CLAIMANT

ALEXANDER

STEYN 2nd CLAIMANT

FJ

SENEKAL INC

3rd CLAIMANT

JUDGMENT BY: C

NEKOSIE AJ

HEARD ON: 7 MAY 2021

DELIVERED ON: The judgment was handed down electronically by circulation to the parties` legal representatives by email and release to SAFLII on 18 May 2021. The date and time for hand down is deemed to be 18 May 2021 at 11h30.

[1] The Sheriff, as Applicant, issued an Interpleader Notice in accordance with the provisions of Rule 58 of the Uniform Rule of Court calling upon the First to Third Claimants to appear at Court for the purpose of the adjudicating the Interpleader Claim aimed at resolving the competing and adverse claims.

[2] The property attached by the Sheriff in the return number 891706 issued on 18 February 2021 at or near Bloemfontein, that is the object of the current dispute is R C Westraadt's right, title and interest in and to the action that the he instituted in the Free State High Court, Bloemfontein against Sonja Westraadt under their divorce case number 978/2018.

[3] The divorce has not been finalised yet. A Deed of settlement was concluded between the parties in the divorce proceedings disposing of all material disputes between the parties. The only matter that was left in abeyance for later determination was the calculation of the accrual, if any, to which RC Westraadt may be entitled to. The accrual is therefore, in my view the only right, title and interest flowing from the remaining divorce proceedings capable of being attached.

[4] The Second Claimant withdrew his claim prior to the commencement of the hearing and thus only the First and Third Claimant`s claims stand to be determined.

[5] The First Claimant`s automatic claim lies in the fact that it is a judgment creditor of Randolph Charles Westraadt under this case number, where Westraadt was the Second Defendant and PH Safaris CC was the First Defendant. Judgment was granted in favour of the First Claimant on 7 November 2019 against PH Safaris CC and RC Westraadt jointly and severally for the payment of $221,250.00 as the principal debt, pre-judgment interest in the sum of $31,641.90, attorney`s fees in the amount of $21,000.00, interests and costs. The writ of execution referred to in paragraph 2 above was pursuant to this judgement.

[6] The Third Claimant, FJ Senekal Inc, an incorporated company rendering legal services to RC Westraadt, has its claim premised on a cession by RC Westraadt to the Third Claimant of his right, title and interest that may arise out of his action against his spouse, Sonja Westraadt in which action he claims accrual from his spouse.

[7] The cession as formulated in the agreement between Westraadt and the Third Claimant amounts to a cession of an anticipated judgment debt before the judgment has been delivered. Thus it is a cession of a future right or spes. Cessions of this nature are commercially and legally accepted. This is confirmed in Waikiwi Shipping Co Ltd v Thomas Barlow And Sons (Natal) Ltd and Another[1] where it was stated as follows:

‘The "interest in the claim" and the "interest in the result of the litigation" are contrasted. However, there may be three factors involved: (i) the original founding right, (ii) the right arising from litis contestatio to proceed with the action to its conclusion, (iii) the spes in respect of the benefits that will flow from the successful conclusion of the proceedings. (As to this last, it may be pointed out that a spes may also be "ceded". There is, however, a difference of opinion in respect of the nature and precise effect of such a "cession": De Wet and Yeats, Kontraktereg en Handelsreg, 3rd ed. p. 180; Schreuder v Steenkamp, 1962 (4) SA 74 (O) at p. 76A - D. But this dispute does not affect the present issues.) It would seem that in Ngubane's case this Court by "interest in the result of the litigation" meant the spes, and by "interest in the claim", right (ii) (perhaps including right (i)). No doubt a cession may be framed to relate explicitly to the spes (cf. the cession in Hall v Howe, supra, and Schreuder v Steenkamp, supra), but the dictum seems to imply that even in other cases a cession after litis contestatio must be construed as a cession of the spes.’

[8] The Third Claimant argued that it is entitled to succeed with its claim because the cession agreement was concluded before the judgement was given in favour of the First Claimant and therefore should take preference as it was first in time. In controverting this submission, the First Claimant submitted that cessionary's title can never be superior to that of a predecessor and since Westraadt only has a spes in respect of accrual amounts that a Court must still decide upon, the Third Claimant has the same uncertain right or claim. In view, for the reasons to follow, it is unnecessary to make a determination on these issue.

[9] The cession of a spes is permitted provided there is no statutory impediment that prohibit same. As stated the accrual is the only aspect from the divorce proceedings that is yet to be determined. In terms of section 3(2) of the Matrimonial Property Act 88 of 1984 the accrual of a spouse is not transferable and not liable for attachment, and does not form part of the insolvent estate of the spouse. The cession in this matter is clearly intended to transfer the right or spes to the accrual owned by Westraadt to the Third Claimant. This is not permitted and therefore the session in respect of the accrual is invalid, thus the claim cannot stand.

[10] In respect of the costs, the Third Claimant`s claim cause the Applicant to refer the matter to court for determination which resulted in unnecessary cost being incurred by the First Claimant who as judgement creditor, automatic claimant, was compelled to protect its interest. Cost therefore stands to be awarded against the Third Claimant.

IT IS ORDERED THAT:

1. The Third Claimant`s claim on the property attached by the Applicant in the return number 891706 issued on 18 February 2021 at or near Bloemfontein is rejected.

2. The Third Claimant is liable to pay the costs of the First Claimant, including cost of counsel on a party and party scale.

______

C Nekosie, AJ

For the First Claimant: Adv. S Tsangarakis

Instructed by: Honey Attorneys

Bloemfontein

For the Third Claimant: Adv. N Van Der Stand

Instructed by: FJ Senekal Inc

Boemfontein

[1] Waikiwi Shipping Co Ltd v Thomas Barlow and Sons (Natal) Ltd And Another 1978 (1) SA 671 (A) at p 677H-678A