Section 65A of the Magistrates’ Court Act 32 of 1944 (“the Act”) provides a mechanism by which a creditor may recover a debt owed to her after judgment has been granted and the debtor has failed to pay. The main object of the section is to make inquiries into a judgment debtor’s financial position and enable the court to make a just and equitable order thereto, having as its aim the settlement of the judgment debt.
In terms of this section, where a judgment for the payment of a sum of money has remained unsatisfied for a period of 10 days, or an order for the payment in instalments or otherwise of a sum of money has remained unsatisfied for a period of 10 days from the date on which the amount became payable, the unsatisfied creditor may serve a notice calling upon the judgment debtor to appear before the court in chambers to enable the court to enquire into the debtor’s financial position.
The judgment debtor will be required to give evidence relating to her financial position, to grant the court an understanding with respect to her income, expenses and ability to make payments. The process is intended to result in an equitable payment solution.
However, the judgment creditor must take notice of section 65A(2), which provides that if the judgment debtor was not present or was unrepresented when the judgment in question was given, and if no warrant of execution has been served on the judgment debtor personally, the creditor will need to demonstrate first to the clerk of the court that she has advised the judgment debtor by registered letter of the terms of the judgment and that 10 days has elapsed since the date on which that letter was posted.
Further, if the court has given judgment for the payment of an amount of money in instalments, the creditor must first deliver an affidavit, or have her attorney deliver a certificate to the clerk of the court, in which it is mentioned the outstanding balance of the debt, the respects in which the debtor has failed to comply with the judgment, to what extent the debtor is in arrears and that the judgment debtor was advised by registered letter of the judgment.
Should the judgment debtor fail to appear in court pursuant to a valid section 65A notice, the court may, at the creditor’s request, direct the sheriff to arrest the judgment debtor and bring her before a competent court to enable the section 65A enquiry. Wilful failure by the debtor to appear is an offence and the debtor is liable on conviction to a fine or imprisonment for a period not exceeding three months.
Article by: Shannon Clery