EXECUTION OF JUDGMENTS- WHAT CAN THE SHERIFF ATTACH?
When a creditor is in possession of a judgment in its favour, it is in a position to execute this judgment. What exactly is execution and what goods can a creditor execute upon?
What is execution?
- When judgment is granted the creditor may issue a document referred to as a warrant of execution at the Court that granted the judgment in question.
- The warrant of execution contains details of the judgment, like the amount and interest rate as well as the residential address of a person.
- The address utilized in the warrant of execution is an address at which the debtor lives, or if it is a company, the address from which it trades.
- At this stage, it is important to note that a warrant cannot be executed at the employment address of a natural person, as the debtor will not have any movable assets that the Sheriff may attach at this address.
- The address for execution should be the address at which the debtor keeps movable assets that the Sheriff may attach.
- As an example, should the Sheriff be mandated to attach cash in a banking account, the warrant will state that it should be executed at the said bank.
- The warrant that is automatically issued by the Court without further application from the creditor is a warrant of execution of movable assets.
- Should the creditor wish to execute upon immovable assets, application must be brought to declare the immovable property executable
What is eligible for attachment?
- Most movable goods owned by the debtor is eligible for attachment.
- Movable goods include items such as furniture, vehicles, cash or bank notes, cheques, bills of exchange, promissory notes, bonds, securities for money belonging to the execution debtor and also cash held in the bank.
- Movable goods that are excluded from attachment at the debtor’s residence, are as follows:
- The necessary beds, bedding and clothing of the execution debtor or his family;
- The necessary furniture (other than beds) and the household utensils in so far as they do not exceed in value the sum of R2000;
- Stock, tools and agricultural implements of a farmer in so far as they do not exceed in value the sum of R2000;
- The supply of food and drink in the house sufficient for the needs of such debtor and his family during the month;
- Tools and implements of trade, in so far as they do not exceed in value the sum of R2000
- Professional books, documents or instruments necessarily used by such debtor and his profession, in so far as they do not exceed in value the sum of R2000;
- Such arms and ammunition as such debtor is required by law, regulation or disciplinary order to have in his possession as part of his equipment;
- Annuity or benefit or rights in respect of an annuity or benefit payable under a pension law
- A right to a benefit or gratuity to which any person is entitled under the Occupational Diseases in Mines and Works Act 78 of 1973 is not subject to execution of a judgement or order of court, except at the instance of the Compensation Commissioner for Occupational Diseases in proceedings to recover an amount to which the payee is not entitled.
- Section 2(3)(a) of the Matrimonial Affairs Act 37 of 1953 provides that no remuneration, compensation, deposit, share, dividend, proceeds, amount, right, tool, or implement belonging to the wife shall be attached or sold in execution for any liability incurred by the husband.
Execution upon immovable property:
- A creditor is able to execute upon all assets of a debtor, however when attempting to execute on immovable property, the creditor should approach the High Court first in order to obtain an order declaring this property eligible for sale in execution.
- This application is quite a difficult one to obtain an order for, as our Constitution protects the citizens of our nation’s right to adequate housing.
- It is more likely to have this application granted should the debtor possess the means to afford other housing and especially if the debtor either lives alone or with only a partner. Once there are dependents living in the property it becomes less likely for a Court to grant this order.
- It is however possible to execute on immovable property and this option should definitely be explored if the creditor has not been able to satisfy its judgment by execution on movable assets of the debtor.
Please feel free to contact Vermeulen Attorneys if you have been in possession of a judgment and have not been able to execute same for any given reason. We shall gladly assist in this regard.