Section 65A(1) of the Magistrate’s Court Act 32 of 1944, in the District Court, is a procedure to inquire into the financial position of such Debtor. This inquiry is utilized whereby the Debtor has not satisfied a judgment for the payment of a sum of money granted against the Debtor, and to enable the Court to make an order that it may deem just and equitable.
First, the judgement debtor must be notified to appear before the Court, which is done through a Section 65A(1) notice. The notice must be issued by the court clerk and served upon the judgement debtor by the sheriff. The Section 65 hearing is an enquiry into the financial position of the judgement Debtor. During the hearing, the Judgement Debtor, under oath, presents oral evidence of their financial position and will provide proof of their economic status to the Court. The Judgement Creditor is then allowed to cross-examine the Judgement Debtor. The Court has the discretion to call witnesses or receive further evidence.
The Court's order depends on the matter before the Court. Orders can include issuing a warrant of execution, an emoluments attachment order or a garnishee order.
In order to attach a portion of the debtor salary, in execution of the judgment debt, the Creditor can approach the Court for an emolument attachment order. Should the Creditor succeed in its application, the Debtor’s employer will be ordered to attach what is deemed a reasonable portion of the debtor’s salary and pay this amount to the Creditor. These payments will be made on a continuous basis, and until such time as the judgement debt has been satisfied. Should the Debtor’s employer fail to comply with such an order he/she will be held criminally liable.
Where the Debtor fails to appear at Court, the presiding officer may authorise a warrant of arrest, which will be issued by the court clerk and served by the court sheriff to the Debtor for a return date to secure the Debtor's appearance.
There are several mechanisms a creditor may use to ensure that he or she is repaid; an S65 financial enquiry is one of them.
Written by Robyn Shepherd, Civil Litigation and Debt Collection, SchoemanLaw
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