Debt collection procedure
We use the following procedure when we are instructed to collect a debt on behalf of a client:
- Letter of Demand: Failure by the debtor to respond to same within the time period provided is followed by a Summons.
- Summons: A summons is issued out of court where the debtor resides, carries on business or is employed and where the cause of action arose. Once issued the summons is sent to the sheriff for service.
- Default Judgment: if the claim is not settled within the time period provided in the summons and we do not receive an Appearance to Defend we may apply for default judgment.
- Summary Judgment: When an Appearance to Defend is entered the creditor may file a notice in which he explains that there is no genuine defence to his claim and the Appearance to Defend is entered in order to delay the process. If granted, the action will not go to trial.
IF SUMMARY APPLICATION DISMISSED:
- Pleadings: If the defence is accepted by the court, the matter will go to trial. The Defendant pleads, detailing denial and admission of the particulars of claim and spelling out the facts upon which the defence is based.
- Discovery: Both parties have the right to request documents (e.g.: invoices, delivery notes) in each other’s possession to prove or disprove a case.
- Trial: Evidence is led from each side and the court is required to make a decision, either to give a judgment or dismiss the action.
IF JUDGMENT IS GRANTED:
- Warrant/Writ of Execution: Once judgment is granted, an application is made to court to attach movable property. The sheriff will compile an inventory that reflects the goods that are under attachment and valuation. The sheriff is then instructed to remove the attached goods and to arrange a sale in execution. Immovable property may only be attached and sold in execution.
- Section 65 Procedure: A notice is issued out of court which calls the debtor to give evidence under oath on his financial position and ability to pay the debt. The court may order: i) attachment of debt, ii) payment in instalments or Emoluments Attachment Order. If the debtor fails to appear in court a warrant of arrest may be authorised by the court.
- Emoluments Attachment Order OR Garnishee Order: An order of court in terms of which the debtor’s income is attached and the debt paid in regular instalments from his salary or wage.
Should you wish to instruct us, you should have the following information handy:
- The full names of the debtor, if known
- As much information on the address of the debtor
- Amount claimed and the date or period when services were rendered or goods were delivered
- Cause of action (in other words the reason for your claim)
- Inform us if you have a written agreement, invoices, cheque and if you are in possession of the original