Summary
Summary Chapter 22
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Detailed summary of chapter 22 from the fundamental principles of civil procedure textbook
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CHAPTER 22 – EXECUTIONIntroduction
GENERAL:
Obtaining a judgment is not necessarily the final step in
the litigation process:
Most cases the losing party will comply with the
judgment of the court
BUT - There is an additional phase when a judgement
debtor is recalcitrant and is unwilling to comply with
the judgment
Terms:
Judgment creditor = party in whose favour the
judgment is granted
Judgment debtor = party against whom judgment is
granted
Must distinguish between 2 types of judgments:
Judgment to perform an act
Judgment to pay an amount of money
JUDGMENT TO PERFORM AN ACT:
Ie: When the court orders a judgment debtor to perform
an act
= A judgment ad factum praestandum
Eg of an act = to deliver certain property
Remedy available to the judgment creditor if judgment
debtor fails to comply with the judgment:
Can apply for the committal of the JD to jail for
contempt of court
JUDGMENT TO PAY AN AMOUNT OF MONEY:
Ie: When the court orders a judgment debtor to pay an
amount of money
= A judgment ad pecuniam solvendam
, Eg of an act = to pay damages arising from a claim for
delict
Remedy available to the judgment creditor if judgment
debtor fails to comply with the judgment:
JD can follow a procedure known as EXECUTION
EXECUTION:
Execution procedures:
Provides a mechanism by which court orders can be
enforced
Ensure the effectiveness and integrity of the process
of judicial decision-making
Regulated by the Rules of Court
Execution Procedures
WHAT:
Generally the process of execution entails:
The attachment and sale by PUBLIC AUCTION
By the sheriff
Of the movable or immovable property of the JD
In order to realise money and satisfy the money
judgment
This procedure amounts to an individual debt-collecting
procedure as it can only operate effectively only where
the debtor has sufficient assets to meet the amount of
the judgment debt
Insolvent debtor:
This occurs when the JD cannot pay the judgment
debt and has no executable assets
JD will then have to revert to other debt-collection
devices
Examples:
Application for the sequestration of the JD’s estate
(if a natural person) in terms of the Insolvenct Act
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