What exactly does a judgment in my favour mean?
Many times I encounter individuals that make the assertion that a judgment is only worth the paper its written on. Although this is many times accurate, there is most definitely means and methods to enforce a judgment. Here follow the methods that can be employed and a short description of what each entails.
1. Warrant of execution
This is a document authorising the sheriff to judicially attach any movable assets that the debtor may have at his residential premises, or any other movable assets that the creditor has specifically instructed the sheriff to judicially attach which is the property of the execution debtor. These other assets may include cars not at that moment in the possession of the debtor or even monies held in a bank account.
2. Attachment of movable assets
Movable assets include all movable items like furniture, cars, electronic appliances, cash and the like. These may be attached by a sheriff holding instruction to do so in the form of a warrant of execution of movable assets.
3. Attachment of immovable assets
If the creditor is aware that a debtor is the owner of immovable property, this property may also be attached in execution and ultimately sold in settlement of the debtor’s judgment debt. The process to attach and sell immovable property differs in the High and Magistrate’s Courts and it must be noted that the process in the High Court does take some time and may be costly. It is however worthwhile if the value of the property is substantial when compared to the outstanding debt.
Here one must also take cognizance of the fact that if the immovable property is the subject of a bond and home-loan, this will be settled prior to other debts and the amount realised may be insufficient to cover both the outstanding bond and other debts.
4. Section 65AApplication
The section 65 application becomes applicable once it has been established that no real recovery can be made at normal execution of a warrant. A substantial application is brought before Court wherein a Magistrate decides on what amount the debtor can pay monthly towards settlement of his debt and makes an order which compels the debtor to make payment to the creditor in this amount.
Importantly the Application must be served on the debtor personally and if he fails to appear at Court, a warrant for his arrest may be authorised. The sheriff will then bring him before Court on the next occasion and he will need to answer to the charges of non-appearance as well as the application.
5. Emoluments attachment order
This is an order in terms of which a judgment creditor may attach a judgment debtor’s future salary or any monies owed to the debtor by his employer at present, in the amount that the debtor owes the creditor in terms of the judgment as well as costs necessary to cover the actual attachment; which obliges the employer to make monthly payments to the creditor in payment of the debt. These amounts are then deducted from the debtor’s salary or wages. The monthly amount payable is determined by Court.
6. Sequestration order
This is when a creditor applies to Court for an order to declare the debtor insolvent and usually is applied for after receipt of a nullabonareturn. This means that the sheriff has attempted to execute a warrant but that the debtor did not have sufficient movable assets to attach and declared that he has no immovable property which can be attached. This statement from the debtor is defined as a deed of insolvency and is in itself a ground for a sequestration order to be launched.
When a person is sequestrated, a curator takes charge of his estate and calculates monthly amounts payable to the debtor’s creditors pro-rata of what is available to distribute and what the amount outstanding per creditor is.
When a debtor is sequestrated it takes away his ability to deal with his estate as he deems fit and a curator is forthwith in charge of the debtor’s estate. No further debt may be accrued until such time as the order has been uplifted.
The creditor is paid a monthly amount by the curator until the debt has been settled in full.
Therefore, your judgment is most definitely worth obtaining and worth executing in one of the many forms described above. It may take some time and money but if you are able to persevere you may very well be paid your dues.
Please contact our offices for advice on executing your judgment.