CAN
A WEBSITE BE ATTACHED UNDER A WRIT OF EXECUTION?
Attaching a website is not as
“far-fetched” and idealistic as it
may seem. As we currently find ourselves in an
ever evolving and modern day society, the reality
thereof is not far off.
What is a website?
A website can be defined as a form of
publishing, but it can also constitute a vein
of advertising for those who wish to promote themselves,
their products or services on the internet. But
how does one lure consumers to your website?
In the online world, domain names have come to
fulfil the very same role as that of a trade mark.
Your presence on the internet starts with your
domain name, which is a unique internet address
that identifies a website. Domain names characteristically
generate economic value to the registrant or owner,
as it attracts custom.
Ownership of a Website
An important aspect in website design
and cyberspace is who is considered to be the
owner of the website? Is it the domain name registrant
or the website developer? It is a general rule
that the author or creator of the work is also
the owner thereof. However, this is also subject
to certain exceptions. Any person who commissions
another to create or produce a work and who subsequently
pays for it, is deemed in law to be the owner
thereof. Such owner can also transfer his ownership
in that piece of work, to another individual or
entity, by means of assignment, licensing, transmission
via a testamentary disposition or operation of
law as movable property, in accordance with the
Copyright Act.
As far as websites are concerned, the existence
of an agreement with the website developer facilitating
assignment and licencing, becomes imperative.
Does a website and / or its domain name
constitute attachable property?
It is submitted that a website or domain name
is attachable property in view of the following
judgement, which is only one of a series of judgements
relating to this topic:
SOJA (PTY) LTD v TUCKER LAND DEVELOPMENT
CORPORATION (PTY) LTD & ANOTHER 1981 (2) SA
407 (W),
The court held that the criterion for
attachable rights and/or interests “is the
existence of any vested right or interest in terms
of which a debtor is capable of selling or disposing
a value himself. Such a vested right or interest
will also be capable of being attached or sold
under an execution order...
Process of Attachment
Taking cognisance of Section 68 of the
Magistrates Court Act, it would become evident
that debtor’s interest in a domain name
is not attachable under this Act as it does not
fall under one of the categories of Section 68.
Due to the fact that the Magistrates Court is
a creature of statute, it possesses no inherent
jurisdiction to alter this position. In essence
this means that a High Court application will
have to be lodged in which the debtor’s
right in the incorporeal property, is declared
to be so attachable and executable. Delivery of
the domain name after the sale in execution will
take place via the registration of such domain
name in the name of the successful bidder. In
terms of the Uniform Rules of Court, Rule 45 (8)
governs the attachment process.
Jurisdiction of courts
to effect attachment
It can be argued that a domain name is,
to an extent, subject to the control of Uniforum
SA due to the fact that all domain names are registered
with them, they reserve the right to cancel and
/ or suspend a name. Thus, the domain name concerned
will be located in that place where Uniforum SA’s
systems are located. This position is supported
by the judgement given in Rembrandt Fabrikate
en Handelaars (Edms) Bpk v Gulf Oil Corporation
1963 (3) SA 341 at page 348, paragraph H, where
it was held that “…a right to a trade
mark is situated where such register is kept.”
In the case of domain names and consequently websites,
the domain name is situated where the systems
of Uniforum SA’s are situated, and the Sheriff
of this area of jurisdiction, will then be authorized
to give effect to the execution.
Conclusion
Despite the dispensation of the Electronic
Communications and Transactions Act 25 of 2002
(ECT Act), the gap between the law and commercial
and social utility of cyberspace continues to
widen. The legislature fails to provide accuracy
and certainty as far as cyberspace and the issues
relating thereto are concerned.
Too many legal scholars, lawyers and advocates,
are resisting the potential benefits the ECT Act
may have. By becoming involved, they could aid
the South African legislature in gaining insight,
certainty and stability to the laws governing
cyberspace. As Alvin Pitcher once commented “…man
is required to adapt himself ceaselessly to the
creation of technology. Old forms, old knowledge
and old skills must give way to the new.”
This article was written using excerpts of writer’s
own dissertation titled: The Attachment
of a Debtor’s Website under a Writ of Execution”.
Should you require a copy of the full dissertation,
or in the event of any queries, writer can be
contacted at 012 342 9895, alternatively
you can send an e-mail to michelle@legaledge.co.za
WRITTEN BY:
MICHELLE WILKEN- GLOVER
PETZER, DU TOIT & RAMULIFHO
