An Inside Scoop Into Debt Collecting
Submitted by: SchoemanLaw Inc
By Robyn Shepherd
Introduction
Section 65A(1) of the Magistrate’s Court Act 32 of 1944, in the District Court, is a procedure to inquire into the financial position of such Debtor. This inquiry is utilized whereby the Debtor has not satisfied a judgment for the payment of a sum of money granted against the Debtor, and to enable the Court to make an order that it may deem just and equitable.
The proceedings
First, the judgement debtor must be notified to appear before the Court, which is done through a Section 65A(1) notice. The notice must be issued by the court clerk and served upon the judgement debtor by the sheriff. The Section 65 hearing is an enquiry into the financial position of the judgement Debtor. During the hearing, the Judgement Debtor, under oath, presents oral evidence of their financial position and will provide proof of their economic status to the Court. The Judgement Creditor is then allowed to cross-examine the Judgement Debtor. The Court has the discretion to call witnesses or receive further evidence.
The Court's order depends on the matter before the Court. Orders can include issuing a warrant of execution, an emoluments attachment order or a garnishee order.
In order to attach a portion of the debtor salary, in execution of the judgment debt, the Creditor can approach the Court for an emolument attachment order. Should the Creditor succeed in its application, the Debtor’s employer will be ordered to attach what is deemed a reasonable portion of the debtor’s salary and pay this amount to the Creditor. These payments will be made on a continuous basis, and until such time as the judgement debt has been satisfied. Should the Debtor’s employer fail to comply with such an order he/she will be held criminally liable.
Where the Debtor fails to appear at Court, the presiding officer may authorise a warrant of arrest, which will be issued by the court clerk and served by the court sheriff to the Debtor for a return date to secure the Debtor's appearance.
Conclusion
There are several mechanisms a creditor may use to ensure that he or she is repaid; an S65 financial enquiry is one of them.
Contact an attorney at SchoemanLaw for your contract and commercial needs by visiting our website at www.schoemanlaw.co.za.
Robyn Shepherd \ SchoemanLaw Inc
Civil Litigation and Debt Collection
SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mindset that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the design of tailored legal solutions and the practical implementation thereof through training and automation. With your personal interests in mind, our ultimate aim is to implement measures that protect the results of your hard work as effectively as possible.
