IN THE HIGH COURT OF SOUTH AFRICA DURBAN AND COAST LOCAL DIVISION CASE NO 366/2005 In the matter between: ANAND-NEPAUL APPLICANT AND CITIBANK N.A. FIRST RESPONDENT MAHARAJ ATTORNEYS SECOND RESPONDENT THE SHERIFF OF THE HIGH COURT, DURBAN NORTH THIRD RESPONDENT (Heard at Durban on 3 June 2005) ___________________________________________________________________ JUDGMENT (delivered on 13 December 2005) ___________________________________________________________________ BALTON, J: The applicant brought an urgent application against the respondents for an order: “1. that the first and second respondents are directed forthwith to release the Notice of Attachment in Execution (annexure “E” to the papers); 2. in the event of the first and second respondents not adhering to paragraph (1) above, then in that event the third respondent be authorised to release the aforesaid attachment; 3. that the second respondent is directed to pay the costs of this application on an attorney and client scale de bonis propriis; 4. alternatively to (3) above that in the event of the first and second respondents opposing this application, then in that event such respondent be directed to pay the costs of this application on an attorney and own client scale.” Annexure E refers to the notice of attachment in execution by the third respondent whereby the third respondent attached 2 “all the applicant’s monies in the sum of R445 000,00 held by Anand Nepaul’s Trust account, No 052590127 held by Standard Bank Overport City.” This attachment was made subsequent to judgment being obtained on a confession to judgment under case number 9540/03 against THANDROYAN FRUIT WHOLESALERS CC, R & N FRESH PRODUCE CC, RONNIE THANDROYEN and LOGARANI THANDROYEN. The said judgment has since been rescinded in terms of my judgment handed down on 26 August 2005. The judgment settled the attachment issues. However, the issues still to be determined is whether the third respondent was entitled to attach the money in the applicant’s trust account and the locus standi of the applicant. The writ of execution which was issued pursuant to the judgment directed the third respondent to “attach and take into execution the movable goods of the first, second, fourth and fifth applicants”, in an amount of R1 000 055,00, together with interest. The applicants referred to being THANDROYAN FRUIT WHOLESALERS CC, R & N FRESH PRODUCE CC, RONNIE THANDROYEN and LOGARANI THANDROYEN (hereinafter referred to as the “judgment debtors”). The inventory of the third respondent described the attachment as being all the applicants’ monies in the sum of R445 000,00 in Anand Nepaul’s Trust account, No 052590127 held by Standard Bank Overport City. The first and second respondents submit that the property of the judgment debtors was attached and not the property of the applicant. (1) ENTITLEMENT TO ATTACH It was submitted on behalf of the applicant that an ordinary writ of execution against movable property, as was issued by the third respondent could not be used to levy execution against any amount held by the applicant in his trust account. An order of Court, was required. Rule 45(8) of the Uniform Rules of Court provides that “If incorporeal property, whether movable or immovable, is available for attachment, it may be attached without the necessity of a prior application to Court in the manner hereinafter provided: (a) Where the property or right to be attached is a lease or a bill of exchange, promissory note, bond or other security for the payment of money, the attachment shall be complete only when - … (b) Where movable property sought to be attached is the interest of the execution debtor in property pledged, leased or sold under a suspensive condition to or by a third person, the attachment shall be complete only when the sheriff has served on the execution debtor and on the third person notice of the attachment with a copy of the warrant of execution. The sheriff may upon exhibiting the original of such warrant of execution to the pledgee, lessor, lessee, purchaser or seller enter upon the premises where such property is and make an inventory and valuation of the said interest. (c) In the case of the attachment of all other incorporeal property or incorporeal rights in 3 property as aforesaid; (i) the attachment shall only be complete when – (a) notice of the attachment has been given in writing by the sheriff to all interested parties and where the asset consists of incorporeal immovable property or an incorporeal right in immovable property, notice shall also have been given to the registrar of deeds in whose deeds registry the property or right is registered, and (b) the sheriff shall have taken possession of the writing or document evidencing the ownership of such property or right, or shall have certified that he has been unable, despite diligent search, to obtain possession of the writing or document; (ii) the sheriff may upon exhibiting the original of the warrant of execution to the person having possession of property in which incorporeal rights exist, enter upon the premises where such property is and make an inventory and valuation of the right attached.” This rule accordingly deals with the attachment of incorporeal property of judgment debtors. It has been held that the rights to money in a banking account constitutes incorporeal property1. SIMPSON vs STANDARD BANK OF SA LTD 2 laid down the procedures for attachment of incorporeal movable property in terms of rule 45(8). This was repeated in MARAIS v ALDRIDGE & OTHERS3 dealing with the attachment of the right, title and interests of a litigant in an action, wherein MELAMET J held that: “…the Deputy-Sheriff is directed and authorised by the execution creditor to seize and attach assets wherever they may be found. If such assets are in the possession of a third party, the Deputy-Sheriff will seize and attach them subject to his being given the necessary authority and indemnity by the judgment creditor. In the present case the Deputy-Sheriff received the necessary written instruction from first respondent (the judgment creditor) to attach applicant’s right, title and interest which he said was to be found in the office of his attorneys.”4 It is accordingly not necessary to obtain an order of Court prior to proceeding to 1 See: OMEROD v DEPUTY SHERIFF, DURBAN 1965 (4) SA 670 (D); SIMPSON v STANDARD BANK OF SOUTH AFRICA LTD 1966 (1) SA 590 (W) at 591G – H. 2 1966 (1) SA 590 (W) at 591 G – H. 3 1976 (1) SA 746 (T). 4 at 750F – G. 4 attach incorporeal property. In casu the money held in the applicant’s trust account is open to attachment by the judgment creditors of the said judgment debtors. There is no need for an order of court, in particular a garnishee order to have been obtained. A garnishee order is not applicable in the circumstances of this case. Section 7 of the Attorneys Act No 53 of 1979 reads as follows: “No amount standing to the credit of any practitioner’s trust account shall be regarded as forming part of the assets of the practitioner, or may be attached on behalf of any creditor of such practitioner: Provided that any excess remaining after payment of all claims of persons whose money has, or should have, been deposited or invested in such trust account, and all claims in respect of interest on money so invested, shall be deemed to form part of the assets of such practitioner.” It follows that the money held in a trust account is not an asset of an attorney. This does not prevent amounts being held in the trust account of clients of the attorney from being attached. Money in a bank account is capable of being attached. The third respondent accordingly correctly attached the property of the judgment debtors at the time. (2) LOCUS STANDI OF THE APPLICANT The first and second respondents submit that the applicant has no locus standi in that the property of the judgment debtors was attached and not that of the applicant. I agree. The application should have been instituted by the persons whose property was attached, namely the judgment debtors and not the applicant unless he was specifically authorised to do so by the said judgment debtors. This authority was not given. The applicant accordingly had no locus standi to institute the application. The rule is discharged with costs, including the costs of two Counsel.
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