Getting a Judgement in your favour is important but you may need a warrant of execution to get your money. The goal of litigation is to get paid. A Judgement (or Court Order) is sometimes the beginning of the next challenge, namely, collection.
This is the first article in our JUDGEMENT SERIES.
If the person that owes money (the judgement debtor) does not pay you (the judgement creditor) after you have obtained a judgement, South African Law affords you several mechanisms to collect the funds due to you (the judgement debt).
These remedies are also called "executing" the judgement.
Different ways to execute a judgement
Warrant of execution against movable property
|Legal papers are issued through the Clerks' office (Magistrates' Court) or Registrar's Office (High Court). The papers (warrant of execution) authorise the sheriff of the Court to attach and remove the movable goods of the judgement debtor.
A Judgement creditor may choose to have the sheriff only attach the goods but they also have the right to have the sheriff remove the goods. When the goods are removed, they will be place in storage. The goods will stay in storage until they are sold at a sheriff's public auction (called a "sale in execution").Storage can be expensive, which is why the option to only attach is often used.
Often judgement debtors do not have sufficient movable assets to cover the full judgement debt (which can include the capital amount; interest; and, legal costs) so other remedies need to be used.
Further, the costs of the attachment and sale in execution will be taken from the sale of the attached goods.
Warrant of execution against immovable property
|In the event that other methods of executing a judgement fail to satisfy the full judgement debt, a judgement creditor may execute against immovable property of the judgment debtor (e.g. a house).
It is not a simple thing to execute against immovable property. An application to Court is require and the Court must declare the immovable property "executionable".
We will deal with this application in future installments of our JUDGEMENT SERIES.
Once the order declaring the immovable property execution is granted, the sheriff may attach the immovable property and sale it at auction.
Related legal proceeding
A Section 65 application is a motion before the Magistrates Court’s conducted to determine the financial affairs of a debtor. It is an enquiry that involves the debtor providing details of their financial situation. It can also be a requirement that a Section 65 enquiry be conducted before immovable property can be declared executionable.
A judgement creditor can also use other methods to execute a judgement, specifically, a Garnishee Order or a Emoluments attachment order, however, these methods can also be used without a judgement. We will deal further with these methods in future articles.
What if none of the above remedies work?
In the event that a judgement creditor is not able to satisfy a judgement debt after using any above remedy or a warrant of execution, a judgement creditor can still consider applying to declare the judgement debtor insolvent. Sequestrate (in the case of a natural person) or liquidate (in the case of a juristic person).
Of course insolvency as a means of collection can be explored at any time after a debt arises if the requisite conditions are met. We also deal with acts of insolvency in our article here.
Bear in mind that a judgement remains in affect for 30 years.
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