High Court sets aside attachment of FNB account in R2.5m divorce maintenance dispute

FNB account attachment unlawful because debtor was not notified, court finds

The South Gauteng High Court in Johannesburg has set aside the attachment of a man’s bank account in a divorce maintenance dispute involving more than R2.5 million, ruling that the execution process was unlawful because he was not given the legally required notice.

Acting Judge Taryn Lipshitz ruled that the attachment of the man’s rights in his First National Bank (FNB) account was irregular and unlawful, as the sheriff had failed to notify him in writing before the account was restricted.

The judgment, handed down on October 23, 2026, found that the subsequent delivery of the execution documents did not remedy the procedural defect.

The dispute arose from divorce proceedings between the man and his wife, who had obtained an interim maintenance order against him in February 2018 under Rule 43 of the Uniform Rules of Court.

The writ of execution, issued on July 2, 2026, directed the sheriff to attach the man’s rights against FNB to recover over R2.5 million together with applicable costs and charges.

According to the judgment, the sheriff’s notice of attachment was dated August 5, 2026. The man said he only discovered on August 13 that his bank account had been placed on hold.

FNB provided him with the execution documents the following day, but the sheriff only served the writ, draft order and notice of attachment on August 21.

The documents were handed to the man’s son, who was described in the sheriff’s return as apparently at least 16 years old and in control of the residence while his father was temporarily absent.

The man launched an urgent court application on August 19, seeking to have the attachment declared unlawful and set aside.

He told the court that the restrictions had affected his ability to meet ordinary living expenses. In his replying affidavit, he provided further details, including a frozen balance of approximately R120,000 and financial obligations relating to bond repayments, municipal accounts and other expenses.

Although his wife challenged the urgency of the application, the judge accepted that the continuing restrictions substantially affected his day-to-day affairs and that an ordinary hearing would not provide adequate relief.

The central issue was whether the attachment could stand despite the man not having received written notice when his account was restricted.

Judge Lipshitz explained that Rule 45(8) of the Uniform Rules of Court governs the attachment of incorporeal property, including a person’s right to claim payment from a bank.

Under Rule 45(8), an attachment is complete only once the sheriff has given written notice to all interested parties.

The judge said the man was clearly an interested party and that service on FNB alone was insufficient to complete the attachment.

The judgment relied on previous Supreme Court of Appeal decisions confirming that failure to notify a judgment debtor leaves an attachment incomplete.

The court also distinguished the notice requirement from the separate question of judicial oversight, explaining that the applicable rule permits this type of attachment without a prior court application.

The wife argued that the sheriff’s subsequent service on August 21 preserved the attachment.

However, Judge Lipshitz found that the attachment was incomplete when the account was restricted and when the man instituted proceedings on August 19.

The court accordingly declared the August 5 attachment irregular and unlawful and set it aside.

Despite the man’s success, the judgment does not cancel the underlying maintenance order.

The judge noted that the man had made no payments under the Rule 43 order and had indicated that he intended to apply for its rescission. However, no rescission application had been instituted by the time the matter was heard.

The judge also noted that the man had abandoned his request to stay the maintenance order pending rescission.

The court emphasised that the existing maintenance order remained binding and that the wife was entitled to pursue fresh execution proceedings, provided she complied with the applicable legal requirements.

The wife was ordered to pay the court application.