Magistrates' Courts Act, 1944 (Act No. 32 of 1944)

Regulations

Rules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa

57. Attachment of property to found or confirm jurisdiction
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(1) Any application to the court for an order of attachment of property under section 30bis of the Act may be made ex parte.

 

(2)        

(a) Any application for an order of attachment of property under section 30bis of the Act shall be supported by an affidavit in which is stated—
(i)the name, address, occupation and place of residence of the applicant;
(ii)the name, and, if known, the address, occupation and place of residence of the respondent;
(iii) the amount of the claim or the value of the matter in dispute and facts from which it is apparent that the action to be instituted against the respondent is within the jurisdiction of the court and that the attachment is necessary;
(iv) whether the attachment is intended to found or confirm jurisdiction;
(v) details of the property, including its ownership, value and situation;
(vi) such other information as may be necessary to secure an order; and
(vii) the terms of the order applied for.
(b) An affidavit contemplated in paragraph (a) shall be made by the applicant or, if thereto authorised, by someone on his or her behalf and shall state whether the deponent knows of his or her own knowledge the facts to which he or she deposes: Provided that where the facts are not known to the deponent of his or her own knowledge but are alleged to be true to the best of his or her information and belief, it shall be stated how the information was obtained or on what grounds he or she bases his or her belief.
(c) Any application for an order in regard to service of any process in any action referred to in section 30bis of the Act may be combined with any application for attachment referred to in paragraph (a).

 

(3) The court may, before granting an order of attachment of property under subrule (2) require the applicant to give security for any damages which may be caused by such order and may, in regard to any application under subrule (2), require such additional evidence as it may deem fit.

 

(4)        

(a) Any order of attachment under subrule (2) shall call upon the respondent to show cause at a time and on a date stated in the order why such order should not be confirmed.
(b) The return date for an order of attachment under subrule (2) may be anticipated by the respondent upon 12 hours' notice to the applicant.
(c) Where the respondent appears to show cause against an order of attachment under subrule (2), the court may order the applicant or deponent to the affidavit or the respondent to attend for examination or cross-examination and may confirm, discharge or vary such order on such terms as to costs as it may deem fit.

 

(5) The minutes of any order referred to in this rule which are required for service or execution shall be prepared by the applicant and approved and signed by the registrar or clerk of the court and shall state that the return date may be anticipated by the respondent upon 12 hours' notice to the applicant and that the applicant may obtain release of his or her property upon security being given as hereinafter provided.

 

(6)        

(a)Upon receipt of the minutes of the order and of a copy of the affidavit on which it was made the sheriff shall proceed to attach the property specified therein.
(b) Subject to paragraph (c), the rules relating to the powers and duties of the sheriff in regard to the method of attachment in execution against movable and immovable property shall, in so far as those rules are appropriate and can be applied, mutatis mutandis apply to an attachment of property under this rule.
(c)Subject to any order of the court, the sheriff shall where movable property is attached under this rule, remove such property to a place of security or, if such property be inconvenient to remove, shall leave such property upon the premises in the charge and custody of some person acting on his or her behalf.
(d) Any expense incurred in removing property attached under this rule to a place of security or for the storage of such property or in leaving such property in the charge or custody of some person acting on behalf of the sheriff, shall be borne by the applicant and shall, subject to any order of the court, be costs in the cause.

 

(7) Unless the court shall otherwise order, any property attached as provided in this rule shall, upon security being given to the satisfaction of the sheriff of the court for the amount of the applicant's claim and the costs of the application for attachment, be released from attachment.

 

(8) An order made for the attachment of property under subrule (1) shall ipso facto be discharged upon security being given by the respondent as provided in subrule (7).