Section 65 (1) of the Magistrate’s Court Act 32 of 1944 states that court has the power to give judgement for payment of a sum of money irrespective of whether the amount was liquidated or unliquidated before issuing a notice under Section 65A (1).
The debtor can approach the creditor and make a written offer in which they request to pay the debt in instalments. If the creditor accepts the written offer, accompanied by a list of income and expenditure, other court orders or agreements with other credit providers for the payment of their debt in instalments plus a list of assets and liabilities of the debtor, the court may order the debtor to pay the judgement debt in specified instalments according to the offer made.
Section 65 (3) states that the court-
- May request from the judgement creditor or his/her attorney information that will give it insight into the financial position of the creditor when the written request is made;
- Must act in accordance with the provisions of the National Credit Act and the regulations listed thereunder;
- May issue an emoluments attachment order if the amount is appropriate in circumstances where the debtor is employed.
In circumstances where the debtor fails to pay the judgement debt, the creditor can call the debtor back to court in terms of section 65A (1).
Section 65A (1) refers to the inquiry done in the district court that investigates the financial situation of someone who has failed to satisfy a judgement debt for the payment of monies that were granted against him. Such a person is referred to as a judgment debtor. The inquiry is conducted to enable the court to make an order that it deems to be just and equitable and which is further aimed at settling the judgement debt.
The Section 65A (1) is described as a notice to appear in court and is in the form of a summons. It is served in the area where the judgement debtor resides, carries on business/is employed or from the court in the district where the registered office or main place of business of the debtor or juristic person is situated.
If the court gave judgement for an amount to be paid in instalments, the judgment creditor must deliver an affidavit, or his/her attorney must deliver a certificate to the clerk of the court for issuing that refers to:
1. the outstanding balance of the judgement debt;
2. the failure of the judgement debtor to comply with an order that is granted by the court;
3. the extent that the judgment debtor is in arrears with payments of the instalments;
4. the fact that the judgement debtor was given the information by way of registered letter stating the terms of the judgement.
Failure to satisfy an order of paying the judgement debt in instalments has the effect that a judgement creditor may issue a new notice.
During the inquiry, the debtor must bring along information such as a list of his/her income and expenditure, dependants and documents that show his/her liabilities or assets.
If a judgement debtor fails to appear in court in terms of a Section 65A (1) notice, a warrant of arrest may be authorised against them. The warrant of arrest will only be authorised by the court if the court believes on sufficient facts that the judgement debtor:
- had knowledge of the notice to appear and that he failed to appear in court on the date and time stipulated on the notice;
2. failed to appear in court on the date and time stipulated on the notice during proceedings that were postponed in his/her presence;
3. failed to remain in attendance at the proceedings as so postponed.
An example of a situation where the court will not authorise a warrant of arrest is when the return of service states that there was a non-service, this means that the judgement debtor didn’t receive the notice to appear in terms of section 65A (1).
The court has the power to authorise the arrest of the judgement debtor at the request of the judgment creditor of his/her attorney.
An order made under section 65A (1) is a regarded an order of the court.
Reference list:
Magistrates’ Court Act 32 of 1944, 10th Edition.