The litigation process for debt recovery

An Overview of the Litigation Process

The litigation process can be quite complicated, and expensive, when a debtor decides to defend the matter, although this rarely happens in matters where credit was issued, or an amount is due, and not paid. 

Below we outline the process as if the matter is undefended.

A Registered Letter of Demand

The letter of demand sets out the cause of action on which the demand is based, and gives the debtor reasonable time to comply with the demand.

Although not a compulsory requirement, in terms of section 56 of the Magistrates’ Court Act 32 of 1944, before issuing a summons, it is advisable to send a letter of demand to the debtor as an indication of the seriousness of the matter. [Add NCA relevant paragraph] 

However, if you  wish to claim mora interest on the debt (at 10% per annum), as allowed for in the Magistrate’s Act and legal fees, it is advisable to send a letter of demand. 

The letter of demand must have a heading stating that it is a letter in terms of the Magistrates’ Court Act and must describe the nature and purpose of the claim.

There needs to be sufficient information so the debtor can identify what the claim is for and how much is being claimed. 

The letter should also give the debtor a period of ten business days to pay the amount claimed or an opportunity to make a satisfactory payment arrangement with the creditor. 

The letter can be sent by registered mail, served by the Sheriff of the court or delivered by hand (But make sure to get an acknowledgement of receipt).

Issuing of Summons

When the summons is drafted, the credit provider is listed as the Plaintiff and the debtor is listed as the Defendant.

The issue and service of a summons commences the litigation action. The purpose of the summons is to bring the Plaintiff’s (Creditor's) cause of action and the claim made to court.

Should the claim not be settled by the debtor after receiving the letter of demand, it will be necessary to file a summons with, and have it issued by, the clerk of the Magistrates’ Court if the amount being claimed is less than R400 000 and or the Registrar of the High Court if your claim is more than R400 000. (District Court allowing claims up to R 200 000 and the Regional Magistrate's court allow claims of up to R400 000.)

The summons informs the Defendant (Debtor) that it has 10 Court days (Court days exclude Saturdays, Mondays and Public Holidays) within which to deliver a Notice of Intention to Defend the action, and that failure to give notice within the prescribed time will allow the Plaintiff to apply for Default Judgment.

Particulars of Claim

The Particulars of claim, which is attached to a Combined Summons, outlines the nature of a Plaintiff’s claim and the amount claimed from the Defendant.  

The Particulars of claim will set out a description of the parties to the action, the background to the dispute, and will ensure that the claim and all the facts upon which the claim is based are fully set out.  

The particulars of claim must contain enough detail to allow the Defendant to defend the allegations made and must also include a copy of any written agreement that is relied upon by the Plaintiff for the claim.

Once the Summons is issued by the court, the summons is sent to the appropriate sheriff with instructions to serve the summons on the Defendant at the place of residence or place of business.  

Once the Sheriff has served the Summons, he will complete a return of service to indicate that service was successful.  A Defendant is only deemed to have received the Summons when the Summons has been legally served by the Sheriff.

Details of the Summons

A summons is usually drafted in a standard format and has a particulars of claim attached to it. The particulars of claim may be included in the summons itself if it contains less than 100 words. 

Alternatively it needs to be attached to the summons as an addendum and contains finer details about the claim. The particulars of the claim are a detailed account of how the claim arose and what amount is being claimed. 

A summons should contain the following information:

  • The name and address of the Plaintiff
  • The name and address of the Defendant
  • A form of Notice of Intention to Defend
  • A notice advising the Defendant of ten days to enter a notice to defend.
  • A form of Consent to judgement
  • A notice drawing the Defendant’s attention to the consequences of his/her failure to obey the order of the court once judgement has been granted.

The particulars of the claim which must contain:

a. Citation: Details of the Plaintiff and Defendant;
b. Jurisdiction: that the court has jurisdiction because either the action arose within its area or that the defendant resides or works within the court’s jurisdiction;
c. Cause of action: what is the basis of the case, e.g. lease agreement, Sectional Title Levies;
d. Statement: what damages are being suffered by the Plaintiff and that the damages are caused by the Defendant, and
e. Prayer: what relief the Plaintiff is asking for (Including legal fees and interest)

Application for Default Judgement

A Plaintiff may apply for Default Judgment where a Defendant has failed to serve a Notice of Intention to Defend within the prescribed period or where the Defendant has failed to deliver its Plea after receiving a Notice of Bar from the Plaintiff.  

Where the prescribed time lapses, the Plaintiff is entitled, without further Notice to the Defendant, to apply for final Judgment against the Defendant. When Default Judgment is granted, the Plaintiff is able to demand execution of the Judgment.

Where the Defendant was not aware of Service of the Summons, it is possible for the Defendant, on learning of the Judgment against him, to apply for a rescission of Judgment.  

This application is supported by an Affidavit which must provide a satisfactory explanation for the Defendant’s failure to give notice of Intention to Defend and explaining the nature of the defence that will be raised.

Summary Judgment 

Summary Judgment can be sought in certain circumstances when an action is defended by the debtor.  It is a useful remedy which is pursued by a Plaintiff seeking speedy Judgment at an early stage without the delay and expense of a trial.  

An Application for Summary Judgment must be served within 15 days of the delivery of Notice of Intention to Defend.  

An application for Default Judgement may only be filed once the prescribed period for entering a notice to defend has lapsed. 

The Plaintiff may then submit a request for default judgment to the clerk of the court and is a judgement granted in the absence of the Defendant.

Once the judgment has been granted, it is valid for thirty years and allows the Plaintiff to explore different methods of collection, one of which is the Emolument Attachment Order (EAO).

Although the inclusion of ID numbers is not a legal requirement for a valid default judgement, it is preferable to add the ID number in order to assist the credit bureaux to list the default judgement on their respective databases.

Execution of Judgement

When a Defendant has been ordered by the court to pay a sum of money and fails to do so, then the other party, the Plaintiff will be entitled to execute against the property of the Defendant.  

Execution is the process where the debtor’s property is attached by the Sheriff and sold by public auction in order to raise funds to satisfy the court judgment.  

Property to be attached can take several forms including movable, immovable or incorporeal (e.g. share certificates or rights of action).  However, execution will normally take place first against the movable property and thereafter against any immovable property, simply because it is easier to exchange moveable property for cash to satisfy payment of the debt.

Sequestration & Winding-Up

If the debtor doesn't have sufficient executable property to sell, then another means of collecting the money owed will come into play.  

Since the Judgment debtor is technically insolvent, the creditor may wish to apply for the sequestration of the debtor’s estate (where the debtor is an individual), or apply for the winding-up of the debtor (where the debtor is a company).  

In Execution of Judgment, the following occurs:

  • A writ of execution is issued by the Registrar of the court.  This is a document ordering the sheriff to attach the necessary property of the debtor.  
  • The Sheriff will then serve the writ on the Judgment debtor at his home of place of business.
  • The Sheriff will then request satisfaction of the debt.  The debtor may at this point pay the amount owed as well as the costs incurred in obtaining the writ.  If this happens then the attachment of the property is no longer necessary.
  • If the writ is not satisfied, then the Sheriff will ask the debtor to point out movable property to be attached.  The Sheriff must attach sufficient property to satisfy the judgment and costs.
  • The Sheriff will then prepare an inventory, listing the items which have been attached.  The attorney will instruct the Sheriff to take the items listed in the Inventory into his custody and sell them.
  • The Sheriff will then sell the debtor’s property by public auction until an amount has been raised that will satisfy the Judgment and costs.  This is done after due advertisement in suitable newspapers. 

Application for an Emolument Attachment Order (EAO) or Garnishee Order

An emoluments attachment order in is a court order allowing the creditor to attach part of the salary or wages of the debtor.  

Once an emoluments attachment order has been granted, the employer of the debtor (who is referred to as the garnishee) is obliged, on a continuing basis, and until such time as the judgment debt has been paid in full, to pay over a certain portion of the debtor’s salary or wages to the creditor.

The Emolument Attachment Order usually prolongs the repayment process but is effective in securing regular instalments. These orders of court have proven to be effective not only in credit related matters but also in other instances such as child maintenance claims. 

If the debtor does not consent to the application for an EAO then the next step would be to get the debtor to appear in court in terms of S65 financial enquiry.

S65 Financial Enquiry

The court then decides how much the debtor should should pay monthly.

These are instructions given by the court, usually instructing the employer of the debtor to deduct a specified amount from the salary of the debtor or an amount of money owed to the debtor by a third party. This deduction requires the consent of the debtor.

It is best for the debtor to sign an acknowledgement of debt and consent to the emolument attachment order being placed on the salary before making an application for the EAO to the court. 

Instruction letter to debtor’s employer

Once the EAO has been granted, a copy must be served on the debtor’s employer. It is best to attach an instruction letter explaining to the employer exactly what is required of the company. 

Such a letter and the court order should be delivered directly to the HR salary and wages department to avoid unnecessary delays.

Jurisdiction

An important factor to consider when approaching a court with this process is jurisdiction.

A court has jurisdiction over anyone who lives or works in the magisterial district, anyone who owns fixed property in the magisterial district or who has previously agreed to the jurisdiction of the court. 

If the dispute arose in the magisterial district of a particular court it is likely that the matter would be instituted in that court.

Van Deventer & Van Deventer Incorporated - Litigation and Debt Collection Attorneys

As can be seen from the above, the recovery of debt is not always as simple, straighforward or cheap as one would like. However, if the process is handled professionally and efficiently, costs may be contained to the minimum.

Contact us for expert legal advice and professional debt collection

See our Collection Fees Cost Schedule here

 

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