South Africa - Attachment of Assets
Roger Wakefield, Werksmans Incorporated
Originally from Attachment of Assets
A distinction is drawn in South African law between attachment of assets to obtain jurisdiction over a debtor, attachments to secure property in which the applicant claims an interest pending a judgment to be obtained, and attachments to prevent debtors from dissipating assets.
Attachment of assets to obtain jurisdiction over a debtor is required where the debtor is a foreigner (peregrinus) of the South African courts.
An attachment, pending a judgment, to secure property in which a applicant claims a proprietary interest is obtained by way of a temporary interdict (injunction) pending that judgment, if certain requirements are met.
An application for an anti-dissipation interdict may be brought by an applicant in circumstances where he has no claim to the property sought to be interdicted, but is able to prove by acceptable evidence that in the absence of such an interdict the respondent will dispose of assets to defeat the applicant’s claim.
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
There are two types of judicial measures available for applicants to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained. The first is a temporary, or interim, interdict over property to which an applicant has a claim. The second is an anti-dissipation interdict over property in which the applicant claims no direct interest but which is brought to prevent a respondent from disposing of assets to defeat the applicant’s claim.
As to the first, the court in the case of L. F. Boshoff Investments (Pty.) Ltd. V Cape Town Municipality; Cape Town Municipality v L. F. Boshoff Investments (Pty.) Ltd. 1969 (2) SA 256 (C), set out the requirements that an applicant for a temporary interdict must show.