Should you ever receive an interpleader summons or need to issue one, it will serve you to know what an interpleader summons is, when it is required and where such proceedings may be instituted. Interpleader proceedings occur in both the High Court and the Magistrates’ Courts. The focus of this article, however, is on the latter.

In general, interpleader proceedings serve as a mechanism provided for in the Magistrates’ Courts Act 32 of 1944 and Rules, whereby a person who possesses property which does not belong to him or her and which property is claimed by at least two other persons, may refer the dispute to court for determination. Instances in which a person may possess property that does not belong to him or her include, amongst others, where a sheriff attaches property in execution, or a firm of attorneys holds monies in trust. What is required of the possessor is the issuing of an interpleader summons in the prescribed form out of the magistrates’ court having jurisdiction, calling upon the claimants to appear at court and lodge their respective claims in respect of the subject matter of the dispute.

There are two scenarios in which interpleader proceedings may be issued, namely:

• A situation where a person makes a claim to property that was attached, or to the proceeds of property sold, in execution. This process requires the sheriff to issue the interpleader summons in accordance with the Rules. 
• A situation where two or more persons claim property (which could include money) that is possessed by a third party. The third party (as opposed to the sheriff) is required to issue an interpleader summons in accordance with the Rules.

For determining jurisdiction, one has to have regard to the provisions of section 28(1)(e) of the Act. 

In the first scenario, the magistrates’ court has jurisdiction:

• Where the execution creditor and every claimant reside, carry on business, or are employed; or
• Where the subject matter of the proceedings has been attached by process of the court. There is commentary that suggests that jurisdiction lies with the court out of which the warrant of execution was issued and the court of the district where the subject matter was attached (the latter could be any district other than the court that issued the warrant of execution); or
• If all the parties consent to the jurisdiction of the court.

In the second scenario, the magistrates’ court has jurisdiction:

• Where the third party resides, carries on business or is employed; or
• If all the parties consent to the jurisdiction of the court.

Telephone: +27 31 570 5398,   Email: gerard.vadivalu@gb.co.za