Emolument attachments

Emolument attachments: to what extend can a company can interfere with the proceedings: in re: African Development Bank v Nseera; in re Nseera v Nseera (A479/2017) (2018) ZAGPPHC 672 (2018) 3 ALL SA 646 (GP)

 In June 2017, Africa Development Bank brought an unsuccessful Application in terms of Section 28 (2) of the Maintenance Act 99 of 1998. In the Application it sought to rescind and set aside a court order of January 2017, which ordered them to attach and deduct monthly emoluments in respect of Mr Nseera, their employee and pay same over to the Respondent, Mrs Nseera. Their Application was dismissed, which then became the subject of appeal in the High Court.

In the main action on 12 October 2016, an order was made against the Respondent Mr Nseera, for being in contempt of a court order granted against him in June 2016, it further ordered for his arrest and detention for a period of 30 days, postponed for a period of one year on condition that that the Respondent adhere to the court order granted in June. Secondly the court ordered that Mr. Nseera pay maintenance to Mrs. Nseera for herself and their minor child in the amount of R20 000.00, with the first instalment payable on the 28th October 2016.

The Respondent deposed an affidavit and brought same before the clerk of court for an emolument order in terms of Section 26, which provides for the enforcement of maintenance orders and authorises the attachment of emoluments. The order was granted and the Bank was formally notifies in terms of Section 29 of the Act.

The bank brought an application to rescind the order, advancing their claim on three grounds. Firstly that the discrepancies in the date of the order and the letter and notice accompanying the order rendered the whole process irregular. The Court order was granted on the 26 January 2017, however the letter and notice were dated 25 January 2017.Mrs. Nseera clarified that the papers were before the clerk on 25 January, however the order was only granted by the Magistrate on the 26 January 2017.

The court held that there is hardly any harsh consequence, the operative document is the court order which was signed 26 January 2017 and which supports the Respondent’s statement that the papers were drafted on the 25th January 2017 and the order only granted by the Magistrate on the 26 January 2017.

Secondly the Bank contended that it was prejudiced for not being given notice of the application made by the Respondent.

Section 28 (2) of the maintenance Act provides that “. An order under this section may at any time, on good cause shown, be suspended, amended or rescinded by the maintenance court, (b) any person who wishes to make an application for the suspension, amendment or rescission of an order under this section shall give notice in the prescribed manner of his or her intention to make application to the person whose favour that the order was made, which notice shall be served at least 14 days before the day on which the application is to be heard.”  The court held that the section granting the order on ex parte application is justiciable in that it provides both a remedy for rescission but also details how the remedy is to be invoked and therefore the section does not render it peremptory to give the employer notice in advance, otherwise if it were the case, it would not make sense that the legislature devoted so much attention in creating both a remedy and the procedure for an aggrieved employer to invoke  if the intention was to give notice to the employer before making the order.

Thirdly the bank contended that it was prejudiced by not being afforded the opportunity to oppose the Emoluments Order and if it had the opportunity, it would have raised the immunity it enjoys.

The African Development bank was established in terms of an agreement signed on the 4th August 1963 in Khartoum, Sudan by the representatives of various, can government and the agreement affords the Bank immunity. Article 52 states that “The Bank shall enjoy immunity from every form of legal process except in cases arising out of the exercise of its borrowing powers when it may be sued only in a court of competent jurisdiction in the territory of the member in which the bank has a principal office, or in the territory of a member or non-member state where it has appointed an agent for the purpose of accepting service or notice of a process or has issue or guaranteed securities. No action shall, however be brought by member or persons acting or deriving claims from members.”

Article 56 (1) further states that “ all governors, directors , alternators and employees of the Bank and experts and consultants performing missions for the Bank shall be immune from legal process with respect to acts performed by them in their official capacity.”

Article 59 of the Main agreement and Article 12 (4) of the Regional agreement affords the President the rights to waive the immunity of any official in case where in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the Interest of the Bank.

The court held that the agreement read in context and mindful purpose of establishing the Bank, was to advance sustainable economic developments of its regional members. The dispute between its employee Mr. Nseera and Mrs Nseera is hardly a matter that falls within the general business of the bank or the scope of its operation and therefore how the dispute finally gets resolved is no concern for the bank as it does not impact on its operation, efficacy or its ability to discharge its mandate. Held further that giving effect to the court order in terms of section 28 cannot in any way compromise the assets of the Bank. What the Bank is required to do is to attach and pay over, is not its own asset but emoluments due to its employee Mr. Nseera which then cease to be assets of the bank. Invoking the immunity will then precisely be for the private benefit of Mr. Nseera.

The court further noted that the Bank must respect the laws of the Republic and the immunity must be interpreted in context and given this case the immunity must be interpreted within the context of a dispute involving the rights of a minor child to maintenance and therefore in the context of the Republic’s legal system the immunity is not sustainable, more particularly when the courts have consistently expressed themselves on the importance of maintenance obligations being diligently discharged and for the reasons above the appeal was dismissed.

Boitumelo Shongwe.

Permanent Life Partnerships

PERMANENT LIFE PARTNERSHIPS: IS THERE A JOINT ESTATE AND IF SO, HOW WOULD IT BE DIVIDED ON TERMINATION OF THE PARTNERSHIP?

Uncertainty regarding permanent life partnerships and how to divide the joint estate which the partners have built up during the partnership has surrounded the law for many years but have finally been clarified by the Western Cape High Court, in a fair and equitable manner as many would describe it.

Parties who have been living together as permanent life partners, enjoying life together as an unmarried couple and advancing each other’s lives can now enjoy greater certainty in what awaits them if the permanent life partnership ends.

The concept of a universal partnership was briefly identified and confirmed in the Butters1- case where two parties lived together for 20 years without getting married, where one party provided financially and the other cared for their children and maintained the common household.

The judgment handed down by Acting Judge Andrews on the 27th of June 2018 is a landmark judgment intended to provide a fair and equitable manner in which the joint estate of parties who have been living as permanent life partners for an amount of time, should be divided. This judgment especially provides more clarity on the position of each partner in the household. Clarity to the partner as breadwinner and clarity to the other who maintains the household.

In the matter between Booysen and Stander2 the plaintiff, Booysen, instituted a claim against the Defendant, Stander, based on an actio communi dividendo (Judicial division of a joint property) for the termination of the joint ownership of an immovable property, valued at R2,5 million, the repayment of a loan made to the Defendant and return of a motor vehicle which was in the Defendant’s possession. The Defendant, in her counterclaim, sought an order declaring that a universal partnership existed between the parties, the termination thereof and the equal division of the joint estate.

The Plaintiff and Defendant had been living together for 17 years. Both parties started the relationship in an average financial position and had to work hard to make ends meet. The Defendant had a more difficult career and as such was more dependent on the Plaintiff. The Plaintiff paid for the mortgage bond of the immovable property, the medical aid, basic household expenses as well as the repayment of the motor vehicle. The Plaintiff also loaned money to the Defendant to start a business.

According to the Plaintiff, her intention was to recover the expenses and loan from the Defendant and did not intend to forfeit her right to do so. The Defendant on the other hand articulated that she was not in the same financial position as the Plaintiff and relied on her to maintain the household as breadwinner and as such was not under the impression that she had to reimburse the Plaintiff for her portion of the expenses and mortgage bond since they lived together in a permanent life partnership. During cross-examination, the Plaintiff conceded that a joint household had formed but denied that a joint estate had formed as a result thereof.

It is thus evident that the parties conducted a normal joint household where the one cared and provided for the other financially and the other would maintain the household accordingly.

Andrews AJ found that a universal partnership had indeed existed between the parties and that the joint ownership of the immovable property should be terminated. It was further ordered that the Defendant’s half-ownership of the property be transferred to the Plaintiff against payment of a specified amount of money to the Defendant. The Defendant would also keep the motor vehicle as her sole property and each party may retain assets and other property in their possession. The Plaintiff shall be liable for the costs to effect the aforesaid but each party shall pay its own legal costs.

The Court held further that the manner in which the parties conducted their affairs and day to day living was consistent with a universal partnership. Such partnership was similar to that of a marriage in community of property and as such each party becomes joint-owner of everything that either party owned before the partnership.

The aforesaid reinforced the view that the Plaintiff’s claim based on the actio communi dividendo could not be sustained since it would be near impossible to untangle the interwoven threads of the narratives of the life partners and the way they conducted their affairs during the partnership. The fair result to both parties would be to order a hybrid of both the actio communi dividendo and the universal partnership which would result in the division of the joint estate, just as in the event of a marriage in community of property.

By Werner Cilliers

Associate Attorney, Dyason Incorporated

25 March 2019