Many folks think that once they receive judgment in a matter, that’s the end of the rough ride with the proverbial light visible at the end of the tunnel. And then there are those who have been dragged through the entire process and are wise to the trials and tribulations of general litigation, and generally weigh up the costs of proceeding against cutting their losses at each step of the way.
Let’s take a look at what our options are.
Let us for example say you have a debt owed to you and the debtor fails to make payment to you. You bring an application on a Notice of Motion with a Supporting Affidavit in the Magistrates Court, and after a tremulous time dealing with your attorney who in turn has a really rotten time dealing with the Debtor and the Court Processes while simultaneously managing your realistic expectations of time expended and result delivery; you finally have the matter decided in your favour and you are issued with an order of the court to that effect.
Now while some may say this court order is not worth the paper it is printed upon, those of us who have been gagged and weighed by the lovely sword wielding Greek goddess Themis (the lady with the scales of justice) will tell you that armed not with her sword, but rather with copious amounts of patience and a tenacious attorney, you can see the rest of the process through to the beneficial end.
So, armed with the above, you have a few options available to you, all of which are dictated in law. Let us begin with the magisterial financial enquiry.
1. Section 65A of the Magistrate’s Court Act 32 of 1944 affords the Judgment Debtor a grace period of 10 calendar days from which the court order was granted to make payment. Failing compliance, the judgment creditor may draft and serve a s65A(1) Notice calling on the judgment debtor to appear before the magistrate in chambers on a date specified therein to enable the court to inquire into the judgment debtors financial position, whereupon it will make a just and equitable order for payment. Google the form, or contact your friendly attorney for assistance.
As a side note, should the original court order be made in the judgment debtor’s absence, and no warrant of execution has been served on the judgment debtor personally; then a Section 65A(2) Letter informing the Judgment Debtor of the judgment and the particulars of the court order is to precede the Section 65A(1) Notice with a 10 day lead time. This letter serves to inform the judgment debtor of the impending Section 65A financial inquiry. This affords the judgment debtor a courtesy to make arrangements or payment without incurring any further unnecessary legal costs.
Should the judgment debtor fail to appear before the magistrate in chambers in accordance with the Section 65A(1) Notice, the court may at the instance of the judgment creditor authorise the issuing of a warrant of arrest against the judgment debtor so that the court can exercise the inquiry against said person.
Furthermore, should a judgment debtor wilfully fail to appear, they will be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding 3 months.’
Now, once before the magistrate in chambers, the judgment debtor will be required to give evidence of their financial position under oath, orally or by affidavit. Their income, expenses and ability to make instalment payments are weighed to come to an equitable payment solution. The judgment debtor can frustrate this process with a Section 74 administration order (ito the Magistrates Court Act) being brought before or during the section 65A inquiry, which then takes precedence over the section 65A inquiry. This is a soft alternative to sequestration where the judgment debtor’s total debts are valued under R50 000.The only satisfaction you could get should this occur during the financial inquiry would be for your costs incurred during the inquiry to be added to the judgment debtor’s debt in the administration order.
Note that the administration order acts in conjunction with the National Credit Act.
Let us move on to the Emoluments attachment order.
2. Section 65J of the Magistrates Court Act 32 of 1944 makes provision for a judgment creditor to attach a monthly portion of the judgments debtor’s salary. The employer will then be obliged to apply the deduction to the judgment debtor’s salary and make payment thereof to the judgment creditor. It must be noted however that only 25% of the judgment debtor’s basic salary is available in law to be utilised in such a manner. This will be inclusive of yours and other folks Emoluments attachment orders.
The Magistrates court will authorise the issuing of such an order only once the judgment creditor has firstly informed the judgment debtor via registered post of the judgment debt and the fact that is remains outstanding. In the same letter, the judgment creditor will warn the judgment debtor of a possible Emoluments Order being obtained should they fail to make payment. Secondly, an affidavit must be filed with the clerk of the Magistrates Court confirming the outstanding amount, associated costs and interest and therein affirming that the judgment debtor has been informed hereof via registered post.
The Emoluments Attachment Order as authorised shall be prepared by the Judgment Creditor’s attorney, signed by the judgment creditor and the clerk of the court followed by service on the employer by the Sheriff of the relevant court.
One should note that if at any time after the order is granted and served, should it be shown that the judgment debtor will not have sufficient means to service his own dependants, the court may rescind or amend the emoluments attachment order in accordance with the rules of the court.
Should a judgment debtor leave the employ of the employer while there remains an outstanding balance, the new employer will after being served with a certified copy of the emoluments order (CCJ) and a similar affidavit as before, be required to affect the deductions as per the previous employer.
But what happens should the above avenues of relief fail us? We have already seen how long and tedious the process can be. So, at this stage of the process what more can one do? Well, we are also able to execute against any movable property owned by the judgment debtor, and failing that one can then execute against the judgment debtor’s immovable property. This is a continuation of tedium, and one need not attempt the above remedies before executing against property. Your friendly attorney will guide you through the process. Should you care to research it some more, search Google for section 66 of the Magistrates Court Act. You are always welcome to call your friendly Kemp & Associates attorney for assistance in this regard.