Attending court proceedings is costly and time consuming. Is willingly failing to appear for a court financial enquiry ever a good idea and option? This article discusses the legal consequences for willingly failing to appear during a financial enquiry as a debt collection step.
In practice, one often encounters debtors who get arraigned to court for financial enquiries. A court financial enquiry is a legal step available to a judgement creditor/debt collector where they notify the debtor to appear before court and enquire into their financial position.
How it works is that a debtor will be given a notice to appear in court on a specified date and time in terms of section 65A (1) or 65A (8) of the Magistrates Court Act. However, debtors casually disregard those notices and not come to court on the day they were notified to come appear.
The option for the judgement creditor or their representative is then to request a warrant of arrest to be authorized for the arrest of the debtor. After the authorization by the Magistrate, such warrant is later given to the sheriff of the court to go and arrest the said debtor.
The sheriff will go and ‘arrest the person’– that is basically to go and get them and bring them before a magistrate in chambers where the magistrate will cancel the warrant of arrest and “warn” the person to appear in court on a specified date.
Sadly, often than not, a number of debtors disregard those warnings– after all, what is the worst that can happen?
This article then seeks to outline the remedies for the judgement creditors who seemingly fail to get their debtors to attend court and disclose their financial position, in parallel, it will also provide hindsight to debtors who think that simply ignoring a Magistrates’ warning to appear for a financial enquiry is an option or rather, that there are no possible consequences for willingly failing to attend court and disclose their financial position.
THE LAW AND ITS CONSEQUENCES
There can be a number of reasons why people fail to attend court when they are required to do so, to those who in the wording of the Magistrates Courts Act “willfully fails to appear before a court shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three  months”.
In essence– it is possible for a person to go to jail for simply trying to hide their financial position and ultimately runaway from paying their debts/creditors.
Before a judgement debtor can be said to be in willful failure of appearance, it must be proved that:
- The person had knowledge of the financial enquiry notice and;
- They deliberately disobeyed the notice although they were free to appear before court and;
- They id so in bad faith (to avoid disclosing their financial position and ultimately, to escape paying their debt)
In most cases, service of the notice to appear or a warning by the Magistrate is normally sufficient to induce the debtor to start making some payment and admittedly, incarcerations are not common if not rarely practiced at all– however, possible imprisonment for up to three (3) months is and remains our law.
As such, to debtors: It is never a wise idea to willfully circumvent your court appearance or to abscond from paying your debts for that matter, the consequences may be dire. And to creditors: not all hope is lost from recouping your credit, the law is there to strike a balance between your interests and those of a ‘difficult’ debtor.
- Constitution of South Africa, 1996 (section 35(1)(d)).
- Magistrate’ Courts Act 32/1944 (section 65A).
- Criminal Procedure Act 51/1977 (section 75).
- Malachi v Cape Dance Academy Int (Pty) Ltd & others  JOL 24942 (WCC).