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Summary SIP 412 Summaries Chapter 23,24,interdicts
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Chapter 231. Section 65A
• used to ensure recovery of a judgment debt through instalment payments.
• Section 65A(1) a judgment debtor may be summoned by notice to appear before court in
order to allow court to enquire into financial position of judgment debtor +to enable court
to make such an order as is deemed just +equitable.
• notice is drawn up +signed by judgment creditor or legal representative, issued by clerk of
court +served by sheriff.
• notice is supported by an affidavit which in terms of MCR 45(1)(a) to (e) sets out:
o date of judgment or date of expiry of a suspension period ordered in terms of
section 48(e);
o That judgment has remained unsatisfied for a period of 10 days from date on which
it was given or became payable or from expiry of period of suspension;
o In what respect judgment debtor has failed to comply with judgment or order
referred to in section 65A(1)
o amount in arrears + outstanding balance on date upon which notice is issued.
o That judgment debtor has been advised by registered letter of terms of judgment
or expiry of suspension period + consequences of a failure to satisfy judgment,
+that 10 days have elapsed since date of postage of letter.
o court which has jurisdiction in respect of judgment debtor for section 65 purposes
is court of district where debtor resides or carries on business or is employed.
o Where judgment debtor is a juristic person, jurisdiction is awarded to court of
district wherein registered office or main place of business of juristic person is
situated.
o clerk of court may not issue a section 65A(1) notice where minutes of original
court proceedings do not show that debtor was personally present or was
represented by an attorney when original judgment was awarded or no warrant of
execution was personally served on debtor.
o date of judgment or date of expiry of a suspension period ordered in terms of
section 48(e)
o That judgment has remained unsatisfied for a period of 10 days from date on
which it was given or became payable or from expiry of period of suspension
o In what respect judgment debtor has failed to comply with judgment or order
referred to in section 65A(1) + amount in arrears + outstanding balance on date
upon which notice is issued.
o That judgment debtor has been advised by registered letter of terms of judgment
or expiry of suspension period + consequences of a failure to satisfy judgment,
+that 10 days have elapsed since date of postage of letter.
• In se circumstances judgment creditor’s attorney must first deliver a section 65A(2) letter by
registered post to judgment debtor.
o letter must contain a statement of provisions of judgment or of expiry of
suspension period ordered in terms of section 48(e) + consequences which will
result from a failure to comply with judgment.
o judgment creditor’s attorney must furnish proof of postage of letter to judgment
debtor.
, o Where judgment debtor is in permanent employment, section 65A(2) letter may
also include a reference to section 65J, which provides for an emoluments
attachment order.
inclusion of such a reference will amount to a notification for purposes of
obtaining an emoluments attachment order as set out in section 65J(2)(b)
2. Section 65 hearing
• judgment creditor’s attorney is afforded opportunity to cross-examine judgment debtor on
all issues regarding:
o judgment debtor’s financial situation;
o judgment debtor’s ability to pay judgment debt +costs;
o reasons for a failure to do so.
• court may also call witnesses +receive furr evidence in this regard by means of affidavit or in
any or manner deemed appropriate by court. In reaching its decision court may at its
discretion:
o Refuse to take into account periodical payments made by a judgment debtor in
terms of a hire-purchase agreement.
o Authorise issuing of a warrant of execution against movable or immovable property
+issue a warrant toger with an order for payment of a judgment debt in periodical
instalments in terms of section 73.
• Where judgment debtor has made a written offer to pay in instalments + debtor is able to
pay → court may order debtor to pay in specific instalments +even order issuing of an
emoluments attachment order.
• court may also
o Postpone hearing at any time/any future date
o Order judgment debtor to pay costs of hearing except where judgment creditor
has refused a reasonable offer of settlement made by judgment debtor;
o Suspend, amend or rescind its order.
• Failure to appear at section 65 proceedings
o section 65A(6): when court is satisfied on ground of sufficient proof or orwise:
(a)that judgment debtor, director or officer of a juristic person concerned
has knowledge of a notice referred to in section 65A(1) +that he or she has
failed to appear before court +on date + time specified in notice
(b) that judgment debtor, director or officer of a juristic person concerned,
in case where relevant proceedings were postponed in his or her presence
to a date +time determined by court, has failed to appear before court on
that date +at that time; or
c) that judgment debtor, director or officer of a juristic person concerned
has failed to remain in attendance at relevant proceedings or at
proceedings as so postponed.
It may, at request of judgment creditor or creditor’s attorney, authorize
issue of a warrant directing a sheriff to arrest said judgment debtor, director
or officer +to bring him or her before a competent court at earliest possible
opportunity in order to enable court to conduct an inquiry as referred to in
section 65A(1).
A warrant authorized in terms of section 65A(6) shall be prepared +signed
by judgment creditor or creditor’s attorney as well as clerk of court
+executed by sheriff.
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