Interpleader – Magistrates’ Court – Magistrates’ Court Rule 44
Where any person (‘the applicant’), alleges that he is under any liability in respect of which he is or expects to be sued by two or more parties making adverse claims (‘the claimants’), in respect thereto, the applicant may deliver a notice called an ‘interpleader notice’, to the claimants.
In regard to conflicting claims with respect to property attached in execution, the sheriff shall have the rights of an applicant and an execution creditor shall have the rights of a claimant.
If the claims relate to money the applicant shall be required, on delivering the interpleader notice, to pay the money to the registrar who shall hold it until the conflicting claims have been decided.
If the claims relate to a thing capable of delivery the applicant shall tender the subject-matter to the registrar when delivering the interpleader notice or take such steps to secure the availability of the thing in question as the registrar may direct.
If the conflicting claims relate to immovable property the applicant shall place the title deeds thereof, if available to him, in the possession of the registrar when delivering the interpleader notice and shall at the same time hand to the registrar an undertaking to sign all documents necessary to effect transfer of such immovable property in accordance with any order which the court may make or any agreement of the claimants.
The interpleader notice shall-
(a) state the nature of the liability, property or claim which is the subject-matter of the dispute;
(b) call upon the claimants within the time stated in the notice, not being less than 15 days from the date of service thereof, to deliver particulars of their claims; and
(c) state that upon a further date, not being less than 15 days from the date specified in the notice for the delivery of claims, the applicant will apply to court for its decision as to his liability or the validity of the respective claims.
Together with the interpleader notice an affidavit by the applicant must be delivered that states that-
(a) he / she claims no interest in the subject-matter in dispute other than for charges and costs;
(b) he / she does not collude with any of the claimants;
(c) he / she is willing to deal with or act in regard to the subject-matter of the dispute as the court may direct.
If a claimant to whom an interpleader notice and affidavit have been duly delivered fails to deliver particulars of his claim within the time stated or, having delivered such particulars, fails to appear in court in support of his claim, the court may make an order declaring him and all persons claiming under him barred as against the applicant from making any claim on the subject-matter of the dispute.
If a claimant delivers particulars of his / her claim and appears before it, the court may-
(a) then and there adjudicate upon such claim after hearing such evidence as it deems fit;
(b) order that any claimant be made a defendant in any action already commenced in respect of the subject-matter in dispute in lieu of or in addition to the applicant;
(c) order that any issue between the claimants be stated by way of a special case or otherwise and tried, and for that purpose order which claimant shall be plaintiff and which shall be defendant;
(d) if it considers that the matter is not a proper matter for relief by way of interpleader notice dismiss the application;
(e) make such order as to costs, and the expenses (if any) incurred by the applicant.
If an interpleader notice is issued by a defendant in an action, proceedings in that action shall be stayed pending a decision upon the interpleader, unless the court upon an application made by any other party to the action otherwise orders.
Interpleader – Magistrates’ Court – Magistrates’ Court Rule 44
To view the rule go to Department of Justice – Magistrates’ Court Rules
For more go to the South African Legal Information Institute (SAFLII)