High Court of Swaziland

Attachment of salary etc in execution

REYNOLD SIBHIE BAARTJIES

v

STANBIC BANK SWAZILAND LIMITED

CENTRAL BANK OF SWAZILAND

Case # 500/94

CORAM: S.W. SAPIRE, ACJ

JUDGMENT

(18/4/97)

The Applicant is the judgment debtor of the First Respondent in an amount of E16 656.17, interest and costs. This judgment was granted in this court on 31st June 1994 . As the Applicant had not paid the debt or any part thereof the First Respondent issued a writ of execution, and a garnishee notice which is said to be in accordance with the provisions of Rule 45 (13) (a).

The garnishee notice draws attention to the Applicant being employed by, and in receipt of a monthly paid salary from, the Second Respondent, and requires the Second Respondent to deduct E500,00 from the Applicant=s salary each month, and to pay the same to the Sheriff or his lawful deputy. It is implicit, though not stated that the amounts so deducted are to be applied in reduction of the judgment debt. The Garnishee order was served on 22nd October 1996, since which time the deductions have been made from the applicant=s salary and paid to the First Respondent.

The Applicant, has now applied for an order setting the Garnishee order aside, or alternatively reducing the amount to be deducted from E500.00 to E200.00. The basis of the application is that he the applicant was not given an opportunity of stating his financial position so that the amount to be deducted could be determined with reference to his income and necessary expenditure.

The First Respondent=s Attorneys, who drew and issued the Garnishee Notice, appear to have determined the amount to be deducted unilaterally, and purport to have issued the notice in terms of Rule 45 (13)(a).

An application similar to the present was heard in the Republic of South Africa some years ago. The case which dealt with the similarly worded rule then there operative is reported as

GOUWS v THEOLOGO AND ANOTHER 1980 (2) SA 304 (W)

the head note of which reads

ASalary, earnings and emoluments can be attached in execution only under the provisions of paras (j) and (k) of Rule 45 (12) of the Uniform Rules of Court.

Foley v Taylor and Another 1971 (4) SA 515 (D) not approved and not followed@.

In the course of his judgment Nicholas J.,after quoting the wording of the relevant rule of court which is the same as that of the relative rule of the Swaziland High Court said as follows

AThe question was argued in limine whether salary, earnings and emoluments are 'debts which are subject to attachment' within the meaning of para (a).

In determining the answer to that question, the position under the common law must be borne in mind. In Dhanabakium v Subramanian and Another 1943 AD 160 TINDALL JA said at 167:

'As was stated in R v Morris 1 CCR 95 in a passage quoted with approval by SOLOMON J in Johannesburg Municipality v Cohen's Trustees 1909 TS 811 at 823:

'It is a sound rule to construe a statute in conformity with the common law rather than against it, except where and so far as the statute is plainly intended to alter the common law'.'

The common law position appears from the judgment of DE VILLIERS JP in Shaw and Bosman v Tatham 1912 WLD 75 at 78:

'Now although there seems to be considerable diversity of opinion among the writers on the Roman-Dutch law whether wages can be arrested (vide, inter alia, Van Leeuwen Cens For part II lib 1 ch 15 num 29, and Voet 2.4.52), the matter has been settled with us in a series of decisions and by the constant practice of the Courts. (European Hotel Pretoria v Beckett 1911 TPD 31; Spence v Davidson1911 WLD 147.) The practice of our Courts is in accordance with the view of Voet that wages can be arrested, but what portion of wages should be garnisheed is a matter in the discretion of a prudent and circumspect Judge. I have never understood, however, that an applicant was entitled to such order except upon good grounds.'

This makes it clear that at common law the Court has a discretion whether or not to sanction the attachment of salary or wages and as to the extent to which salary or wages may be attached. It is also well established that at common law an attachment cannot be made of wages not yet due. (See Van der Merwe v Uys 1957 (4) SA 574 (T).)

Under Rule 45 (12) there is specific provision in para (j) for the making by the Court of an order for the payment of the judgment debt by instalments out of the debtor's earnings and for the attachment thereof under the provisions of para (a). Thus, para (j) enshrines the Court's common law discretion in express terms. (See A & H Jopson Investments (Pty) Ltd v Prinsloo 1960 (4) SA 293 (E) at 295C - D.) Paras (j) and (k) also provide, contrary to the common law position, that future earnings may be attached in pursuance of an order of Court.

In the light of these specific provisions it cannot be said in my opinion that para (a) was plainly intended to alter the common law in regard to the attachment of salary and wages. The lawgiver has dealt specifically with that question in paras (j) and (k), and it would be surprising if it intended to deal with it also under the general provisions of para (a), especially in the light of the provision in para (j) as to the circumstances in which an attachment may be made under the provisions of para (a) in the case of an attachment of salary or wages. To apply para (a) in that way would result in the circumvention of the Court's discretion specifically preserved in para (j). That is a result so surprising that it could not have been intended by the lawgiver.

My conclusion is, therefore, that salary, earnings and emoluments can be attached in execution only under the provisions of paras (j) and (k).

This conclusion differs from that reached in Foley v Taylor and Another 1971 (4) SA 515 (D).@

Mr Masuku who appeared for First Respondent, relied on Foley v Taylor, in opposing the relief claimed.I however find myself in agreement with the argument accepted by Nicholas J which accords, with my interpretation of the Rule, which regulates the attachment of a debtor=s salary. It is to be noted that the South African rules have since been amended to delete the provisions which were the subject matter of the decision.

I was invited by the parties, to make an order that the judgment debt be paid in instalments, and to determine the amount of these instalments, so that the AGarnishee Notice@ could be amended to require a deduction of the amount so determined It does not seem that it would be competent to do so

In the first place the evidence relating to the applicants financial affairs is sparse and untested. More importantly however the rule of court contemplates that a garnishee notice may only be issued in respect of the determined instalments, to the extent that the judgment debtor is in arrear in the payment thereof. This means that the present notice is premature and cannot be amended

In the result

a) the Garnishee Notice dated 3rd October 1996 is set aside

b) the First Respondent is to pay the Applicant=s costs

S W Sapire.

Acting Chief Justice

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