The South African execution process may be simplified to the following basic steps: institute proceedings, obtain a judgment, issue and serve a warrant of execution, attach the property and sell the property in execution of the relevant debt.
Those of us who have attempted or engaged in this process know that the above is easier said than done. In saying this, however, what are the limitations in respect of the property subject to the execution process? May we attach immovables?
Overview
Jaftha v Schoeman and Others; Scholtz and Others 2005 (2) SA 140 (CC) rendered section 66 (1) (a) of the Magistrates Court Act unconstitutional. The section previously allowed creditors to attach and sell immovable property to execute judgment debts. However, the section was subject to abuse, as creditors would utilise the process in the execution of debts that were of low value.
Rule 56A was implemented to remedy the situation, and at present, creditors will have to make an application to the court in order to have immovable property deemed executable.
Upon the receipt of such an application, a court will have to consider a number of factors before allowing an applicant to attach and sell immovable property in execution of a judgment debt, these include:
- Circumstances which lead to the debt being owed,
- The amount of the debt due,
- Financial circumstances surrounding the debtor and his/her family,
- Prejudice suffered by the debtor and his family should the application be allowed and the property sold,
- Attempts to pay the debt,
- Alternatives avenues available to satisfy the debt,
- Whether the creditor’s interest will be sufficiently protected, and
- other relevant factors.
It must be said that the above application is not an easy one as the right to housing and other constitutional rights, will have a bearing on the outcome with due consideration to aforesaid factors, amongst others. However, the process is available and may be considered, especially in instances where a return on a warrant of execution indicates that there aren’t enough movables identified to satisfy the debtor’s debt.
Conclusion
As much as the above remedy is available, it remains a relatively complex application to make. Any applicant hoping to be successful needs to consider the aforesaid factors before putting together its papers, and it would be best to seek legal guidance before attempting the process.
Written by Raeesa Ebrahim Atkinson, Specialist Attorney Civil Dispute Resolution, SchoemanLaw