Debts, Recovery of…

This is a very basic explanation of the process and does not deal with opposition by the debtor.

What to do when someone owes you money

Debts arise in two ways – when a person fails to pay a previously agreed sum of money, such as rent or the full purchase price of goods; or when someone claims money from another person as compensation for, say, an accident, defective goods or defamation.

Jurisdiction of various courts

DEBTS OF UP TO R20,000 

The easiest way to recover easily determined debts below R20,000 is to bring an action through the Small Claims Court. Because the procedure is less complicated than in a magistrate’s court, many people reduce the size of a debt so that they can institute an action in a small claims court.

DEBTS OF UP TO R200,000

The recovery of debts of up to R200,000 can be instituted in a magistrate’s court in terms of the Magistrates’ Courts Act, 1944.

DEBTS OF MORE THAN R200,000

A claim for more than R200,000 up to R400,000 can be brought in the Regional Court.

DEBTS OF MORE THAN R400,000

Claims exceeding more than R400,000 must be brought in the appropriate division of the Supreme Court.

Steps in the Debt Collection process

The letter of demand

  • Your attorney sends a letter of demand to the person (the debtor) who owes you the money, specifying the claim – for example, the price of something sold to the debtor and delivered or handed over, and other information that would make it quite clear what the claim refers to;
  • If the debtor admits the debt, it can make a written offer to pay. If you accept the offer, the attorney will get the debtor to sign an acknowledgement of debt recording the terms of payment and the fact that the debtor must pay all the costs and interest, so that you receive a net collection;
  • If the debtor ignores the demand of denies owing you the money, a summons will have to be issued.

Summons

  • If you have to sue, the amount you are claiming determines the court from which the summons is issued.
  • Once the summons has been issued, the relevant sheriff of the court serves it on the debtor.
  • The debtor will be called upon to give notice in writing of any intention to defend the action;
  • If the debtor does not give notice of intention to defend, you are entitled to apply to the clerk of the court for a default judgment and the issue of a warrant of execution.

Application for default judgment

  • Your attorney will lodge a request for default judgement with the clerk or registrar of the court;
  • your attorney must file the summons and return of service by the sheriff and indicate that the debtor has not defended the matter;
  • in due course, the default judgement clerk or magistrate will grant judgement and, at the same time issue a warrant execution, authorising you to attach the debtor’s movable property in satisfaction of the judgement debt.

Warrant of execution

  • A warrant of execution enforces a judgment or court order when a debtor fails to pay the sum ordered in a judgment.
  • Once a warrant has been issued by the clerk of the court, the sheriff of the court will attach as much of the debtor’s moveable property as is necessary to cover the debt, sell it at a public auction and hand over the proceeds to you.
  • If the debtor has insufficient moveable property to satisfy the judgment, execution will take place in relation to immovables.

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