Hilne v Hilne
| Jurisdiction | South Africa |
| Judge | Allie J |
| Judgment Date | 27 November 2008 |
| Docket Number | 10097/2008 |
| Court | Cape Provincial Division |
| Hearing Date | 27 November 2008 |
| Citation | 2008 JDR 1458 (C) |
Allie J:
[1] This application for provisional sequestration was first brought on 15 July 2008. It was postponed to 22 July 2008 and when it became opposed it was postponed to 17 November 2008.
[2] Applicant is the former spouse of respondent. The receiver is an accountant Mr A. S. Pocock appointed by the parties in their Consent Paper that was made an order of court on 22 August 2005.
2008 JDR 1458 p2
Allie J
[3] On 30 January 2007, Traverso AJP made an order inter alia, referring disputes concerning the valuation of assets and acceptance of liabilities in the receiver's interim account to oral evidence.
[4] On 7 March 2008 the court directed Mr Pocock to allow certain liabilities, disallow others and place a value on certain immovable properties. The order also provided that should the parties fail to pay in accordance with the final account drafted by the receiver, the latter could enforce payment in accordance with the terms of the Consent Paper.
[5] The right granted to the receiver to effect a redistribution of assets in terms of the Consent Paper includes inter alia, the following: The right
to realise any asset in South Africa or elsewhere by public auction, private treaty or to make a distribution
to reduce to cash any portion of a party's entitlement
to sign all documents and take all steps necessary to effect the above
to apply to court for further directions
to demand payment over and above delivery of any asset.
2008 JDR 1458 p3
Allie J
[6] Clearly the receiver has the right to enforce a redistribution in accordance with his final account by taking all the necessary legal steps including issuing out a Warrant of Execution.
[7] The receiver's authority to enforce a redistribution does not however oust either party's right to do so in their own names as their respective obligations in terms of the consent paper are binding on them.
[8] It is equally open to the applicant to apply for the execution of a warrant to enforce a judgment compelling either party to give the other an amount to be determined by the receiver.
[9] In applying for a warrant of execution, the applicant in her affidavit accompanying the writ, relied upon the judgment of 7 March 2008 read together with the Divorce Order incorporating the Consent Paper.
[10] In that affidavit, the applicant incorrectly informed the Registrar that the written notice of the receiver demanding payment of the account had the effect of a judgment. Mr Robertson, on behalf of applicant, correctly conceded that it did not have the effect of a judgment.
[11] On behalf of respondent, it was argued that the Divorce Order and the order of 7 March 2008, in so far as they relate to the parties obligation to give
2008 JDR 1458 p4
Allie J
effect to a redistribution of their assets, are orders ad factum praestandum and not orders ad pecuniam solvendam. Following on that argument, Mr Spamer, for respondent, alleged that the applicant did not have the type of judgment in her favour upon which a warrant of execution could be based in accordance with Rule 45(1) of the Uniform Rules of this court. A further basis of respondent's attack upon the validity of the writ is the allegation that it should contain a full description of the judgment. The writ's validity was also challenged because it was alleged that it should be issued on behalf of the receiver and it contains an amount in excess of what applicant is entitled to. The applicant applied for payment of the full amount stated in the receiver's account which was made up of her entitlement, the fees and disbursement of the receiver and of a firm of attorneys and a payment to be made to respondent's first wife.
The Validity of the Warrant of Execution
[12] In the case of Du Preez v Du Preez 1977 (2) SA 400 (C) at 403 G, the court referred to the case of Perelson v Druain 1910 TPD 458 with approval where that court found that a writ is not invalid merely by virtue of it having been issued for an amount in excess of that for which it ought to have been issued. It will remain valid provided it is...
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