Section 65 Proceedings

collection of deptSection 65 proceedings refer to Section 65 of the Magistrates’ Courts Act. This section provides for the collection of a debt from a debtor against whom a judgement has been granted.

When is Section 65 applicable?

Section 65 proceedings are only available in the Magistrates’ Court. These proceedings are applicable in matters where there is an original judgement ordering the payment of an amount of money, in a lump sum or in specified instalments, and the order has not been complied with within ten court days of the date on which the judgement was granted. If in terms of the order, payment was suspended, ten court days must have elapsed since the expiry of the suspension period.

The proceedings, in a nutshell:

First, the judgement debtor must be summoned to appear before the court, this is done by way of a Section 65A(1) notice. The notice is drafted and signed by the judgement creditor’s Attorney (or the creditor himself, but we highly recommend using an Attorney). The notice must be issued by the clerk of the court and served upon the judgement debtor by the sheriff.

If the minutes of the original court proceedings show that the judgement debtor was not personally present or represented by an Attorney when the judgement was granted, then the clerk of the court may not issue the Section 65A(1) notice. Instead, the judgement creditor must first deliver, by way of registered post, a Section 65A(2) letter to the judgement debtor. The letter must clearly set out the judgement, and the consequences of a failure to comply with the judgement.

Section 65 hearings are in essence an enquiry into the financial position of the judgement debtor. In the hearing the judgement debtor, under oath, presents oral evidence as to their financial position. The Attorney of the judgement creditor is then afforded the opportunity to cross-examine the judgement debtor. The court has the discretion to call witnesses or receive further evidence.

The order given by the court is dependent on the matter before the court. Orders can include:

  • Issuing of a Warrant of Execution
  • Emoluments attachment order
  • Garnishee order

Failure to appear:

Failing to appear in terms of a Section 65 notice may lead to the arrest of the judgement debtor.

Each case, whether debt collection or otherwise, is unique. The best person for legal advice will always be your Attorney.

SOURCES:

Theophilopoulos, C; et al; Fundamental Principles of Civil Procedure Second Edition (2012)

Schoeman, N; The various ways of executing a judgment in the debt collection process (Date Unknown) Accessed at: https://www.findanattorney.co.za/content_debt-collectors (Accessed on: 17/04/2016)