Powers of the SheriffThe Powers of the Sheriff may be important to you either as a Judgement Creditor or Judgment Debtor.  This article will help inform anyone that is trying to understand the Powers of the Sheriff.

The Sheriff is an officer of the Court and functions as the executive arm of the court.

They do not wear star badges or ride horses ... but they are responsible for serving court processes like summonses and subpoenas; and they play an important role in the execution of court orders like the attachments of immovable and movable property; evictions, demolitions, etc.

Duties and Powers of the Sheriff

Service of a Court Process

One of the principle Powers of the sheriff is the service (official delivery) of Court documents, including Summons and Notice of Motion.

Service may be on a person apparently above the age of 16 at the premises recorded in the Summons or at the defendant's elected domicile.

It is permitted to affix a copy of the Court process to the outer or principal door, or the security gate if the premises are kept closed.

The Sheriff may also actually be serve a Court process by registered post.

In the case where the defendant cannot be found Service may be affected by Edictal Citation, which we will deal with further in future articles.

Warrant of Execution and Writ

Another function of the Sheriff is to attach and/or remove movable or immovable asset belonging to the Judgement Debtor.

See our article on Warrants of Execution for more information ... click here.

Assets exempt from attachment

The powers of the Sheriff allow the Sheriff to attach and remove the property of individuals; however, certain property may not be seized, such as:
  • The necessary beds and bedding and wearing apparel of the person against whom execution is levied or any member of his family.
  • The necessary furniture, other than beds, and household utensils not exceeding the value determined by the Minister through proclamation in the Government Gazette (±R2000,00).
  • Any food or drink sufficient to meet the needs of the defendant and members of his family for one month.
  • Tools and implements of trade used by the defendant in his profession in so far as they do not exceed the value determined by the Minister from time to time by notice in the Gazette. Professional books, documents or instruments are also exempt.

Use of force to enter a premises

The powers of the Sheriff allow the use force to open any door if entering is refused or if there is no person who represents the Judgement Debtor. 

Force can only be used is if a Judgment has been granted and a Writ / Warrant of execution has been obtained.

Emolument attachment order and Garnishee orders

The powers of the Sheriff include the power to attach a Judgement Debtor's salary or collect a debt owing to the Judgement Debtor from a third party, provided the correct order is obtained from the Courts.

These orders are called Emolument attachment orders and Garnishee orders.

These order are not against the Judgment Debtor's they actually compel the Judgment's Debtor's employer or debtors.

We will deal further with these orders in future articles.

Attaching a bank account

The powers of the Sheriff allow for attaching a Bank Account provided the correct procedure is followed.

Distribution of proceeds after a Sheriff's auction has taken place

After the Sheriff has auctioned property (movable or immovable) belonging to the Judgment Debtor, the proceeds need to be distributed.  The proceeds are apportioned and distributed as follows:
  1. The costs and expenses for the issuing and execution of the warrant/writ are deducted.
  2. Then, any hypothec existing prior to attachment.
  3. Then, all warrants received by the Sheriff on or before the day immediately preceding the day of the sale shall rank pro rata.

Effect of Administration orders or Sequestration on the Sheriff

The sheriff is not able to execute a writ if Sequestration occurs or if an Administration order is in force.

Attaching Property belonging to a third-party

There is a presumption that property in your procession belongs to you; therefore, property found in the possession of the debtor may be attached.

However, if the property belongs to a third party, written evidence in the form of an affidavit by the alleged owner, including supporting documentation, must be supplied to the Sheriff.

If the creditor or his attorney does not accept the claim, an Interpleader Summons by the Sheriff must be issued to the plaintiff; defendant and claimant to determine ownership.

Where the sheriff can work

Sheriff's are appointed to perform their functions within certain areas called "jurisdiction".

A Sheriff may only perform their functions within their jurisdiction.

Duration of an attachment of movable property is valid

Generally, for judgments in the Magistrates Court, an attachment of movable property lapse after 4 (four) months; or earlier if the Judgment Creditor withdraws the attachment. In certain circumstances the 4 (four) months does not apply, such as, if the sale of the movable is pending.

In the High Courts there is no specific provision regarding the lapse of an attachment.  However, Judgment Creditor may withdraw the attachment.

Duration an attachment on immovable property is valid

The attachment will lapse 1 (one) year after attachment in the Magistrates Court.

In the High Courts there is no specific provision regarding the lapse of an attachment.  However, Judgment Creditor may withdraw the attachment.

 


DISCLAIMER: THERE ARE MORE CONSIDERATIONS THAN WE CAN COVER IN THIS ARTICLE SO ONLY USE THIS INFORMATION AS A GUIDE.   THIS INFORMATION DOES NOT CONSTITUTE LEGAL ADVICE.  IT IS ALWAYS BEST TO DISCUSS YOUR SITUATION WITH AN ATTORNEY; CONTACT US AT 0861 88 88 35helpdesk@gcm-legal.com AND THROUGH THE CONTACT FORM ON THIS PAGE.

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