THE HIGH COURT OF SWAZILAND
CASE NO. 1544/92
the matter between:
DEVELOPMENT AND Judgment Creditor
(PTY) LIMITED Judgment Debtor
OF SWAZILAND Garnishee
: SAPIRE A.J.
THE APPLICANT : MR. MLANGENI
THE RESPONDENT : MR. WIMALARATNE
applicant is the judgment creditor in proceedings instituted against
ODI (Pty) Ltd to which I will refer to as the judgment debtor.
proceedings are registered in this court under case no. 1544/92. The
judgment in the applicant's favour is an amount of E286,278.75 plus
interest. In execution of this judgment, the applicant caused process
of this court in the form of a Garnishee Notice as provided for in
rule 45 (13) (a) and (b) to be served on the Attorney-General
representing the Government. The effect of this Notice would be to
attach a debt alleged to be owing by the Government to the judgment
debtor and requiring the Government to pay the same to the judgment
creditor through the Attorney-General and the Sheriff.
Attorney-General on whom the Notice was served wrote to the judgment
creditor's attorney disputing the Government's liability or any
obligation to effect payment in terms of the Notice giving his reason
that the debt sought to be attached represents money due from the
Government to the judgment debtor.
Attorney-General referred to the cases of Ex-parte Venter 1940 TPD
286 and Whitecross versus Margolius 1952 (4) S.A. page 183 in support
of the attitude adopted by him.
answer to this, the judgment creditor through its Attorney, issued a
further notice which is the foundation of this present application. I
was told that this is a case to test whether garnishee proceedings in
respect of debts owing by the Government, to a judgment debtor may
competently be taken by the judgment creditor.
rule providing for garnishee proceedings is, sub-rule 13 of rule 45.
Nothing in the rule itself would exclude the Government as a
garnishee being required to pay its debt, to the judgment debtor
through the Sheriff to the judgment creditor .
the course of argument for respondent, I was again referred to the
two South African cases which I have mentioned earlier, as authority
for the proposition, that the Government can not figure as a
garnishee. Indeed if these cases are correct, the application must be
the first of these cases, His Lordship Mr. Justice Murray held that
the debts owing by the Government could not be garnisheed. He based
his reasons on the wording of section 4 of the Crown Liabilities Act
of 1910 which then governed the position in what was then the Union
of South Africa.
Act has of course been replaced by later legislation. But in
Swaziland, there is corresponding legislation in much the same terms
as the Crown Liabilities Act of 1910. This Legislation is the
Government Liabilities Act No. 2/69 section 4 of which corresponds
mutatis mutandis with the corresponding section in the previous
Legislation in the Union of South Africa.
would therefore be proper for me to have regard to the South African
decisions and to examine the reasons for those judgments, and if
pursuaded thereby to rule in accordance therewith, in this case.
closer examination of the wording of rule 45 (13) and section 4 of
the Government Liabilities Act required, I have come to a different
conclusion from that reached in Venter's case and which was followed
in Whitecross's case.
4 of the Government Liabilities Act to which I will for convenience
refer to as the Act, firstly prohibits the issue against the
defendant or respondent,(i.e. the Government) in any such action or
proceedings referred to in section 2, of any execution or attachment
in process relevant thereto.
the present case the Government is not a defendant or respondent in
proceedings to which section 2 refers. The applicant is not seeking
to enforce a contractual claim it has against the Government, nor
does the applicant's case arise from any wrong committed by a servant
of the Government. These are the types of action which are referred
to in section 2 of the Act.
Section also prohibits any execution or attachment or process in the
nature thereof against the property of the government. A debt owing
by the government to the judgment debtor is however, not property of
the government. The debt is an asset of the judgment debtor which in
my view is liable to execution in the same way as any other debt,
owing by a parity other than the government.
am therefore constrained to differ from the pronouncement of Murray
J. that garnishee proceedings are process in the nature of execution
or attachment which in terms of section 4 Act 1/1910 of the Union of
South Africa could not have issued against the defendant in that case
namely " His Majesty or his government in the Union or against
any property of His Majesty". The basic misconception is to
regard the debt which is the subject matter of the garnishee order,
as government property, which I have observed it is not. not.
was argued that the money which is to be paid in satisfaction of the
debt, before it is paid, is government property. But the money is not
what is being attached. On reading the garnishee notice, it is clear
that what is attached is the debt, and the garnishee is instructed to
pay this debt not to the judgment debtor but to the judgment
of a judgment implies of necessity that a seizure of assets of the
judgment debtor takes place, a forced sale thereof, and the
application of the proceeds of such sale to the satisfaction of the
judgment creditor's claim.
wording of sub-rule 13(a) and a notice issued terms of its provisions
bear out the interpretation which I have indicated I intend to
follow. The notice does not purport to attach any property of the
government. It attaches the debt, which is the property of the
judgment debtor and merely instructs the debtor of the judgment
debtor (i.e. the Government) to discharge its obligation, not by
payment to the judgment debtor, but by payment to the judgment
45 deals with the attachment in execution of property of the judgment
debtor in general. Sub-rule 13 of that rule deals specifically with
such property which is an incorporeal, comprising a debt owing to the
judgment debtor and permits the attachment thereof. The rule goes on
to describe how the attachment for the judgment debtor's property is
effected, namely by notice to the garnishee, requiring the garnishee
to discharge the obligation by payment to the Sheriff for the account
of the judgment creditor.
issue of such notice does not constitute execution on, or attachment
of, government property or process of a like nature. It does not
involve the seizure of government property to be realized to satisfy
a debt owned by the government to the judgment creditor.
White Cross and Margolius 1952 (4) S.A. the correctness of the
decision in Venter's case was assumed without any apparent critical
examination of the reasons upon which the decision in the earlier
case was arrived at. I do not regard Whitecross's case as added
weight to the precedent of Venter's case.
the result, the contentions advanced by the judgment creditor are
upheld, and the garnishee is directed to discharge its debt to the
judgment debtor by payment of so much thereof as is required to
satisfy the judgment creditor's judgment. Such payment is to be made
to the Sheriff or his deputy or to be applied in payment of the
judgment in favour of the judgment creditor.
parties have agreed that there should be no order as to costs.