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It happens at times that that pesky debtor of yours has no movable property – probably because you are not the first one that rocked up with the Sheriff in tow to attach his goods to settle his debt to you. If the debtor owns some immovable property, you will have one more avenue open to you to have the debt settled, albeit by way of a procedure which is little more complex than just the attachment of movable items.

 

One firstly needs to have a nulla bona issued which indicates that there is no movable property which can be attached to discharge the judgment creditor’s debt. Thereafter, one can proceed to execute against immovable property.

 

Where the sheriff issues a nulla bona return, the clerk of the court is obliged in terms of Rule 36 of the Magistrates' Courts Rules to issue and sign a warrant of execution against the immovable property of the debtor.

Once execution takes place the judgment debtor has two options: Either he or she can vacate the premises voluntarily or remain in occupation.

·         If he chooses to vacate the premises the effective loss of the home is caused by the exercise of the debtor's own free will and not owing to the execution process.

·         If the debtor chooses not to vacate the premises he or she would be “holding over”. The purchaser is then required to act in terms of the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 in order to secure an eviction. In this case the eviction would be caused by the separate legal proceedings instituted by the new owner and, again, not the execution process.

However, note should be taken of the cases of Jaftha v Schoeman and Others and Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) where the judgment debtors appealed to the Constitutional Court after having their immovable property attached. They claimed that their constitutional right to access to adequate housing had been infringed and that both State and private parties had a duty not to interfere unjustifiably with any person's existing access to adequate housing. Moreover, they claimed that section 66(1)(a) of the Magistrate’s Court Act 32 of 1944 was unconstitutional to the extent of its over-breadth in allowing for the attachment of immovable property in cases where the judgment debtor’s movable property is insufficient.

 

The Constitutional Court acknowledged that there would be circumstances where it would be unjustifiable to order execution because the advantage that attached to a creditor who sought execution would be far outweighed by the immense prejudice and hardship caused to the debtor.

 

To remedy the defect section 66(1) (a) of the  Magistrates' Courts Act 32 of 1944 was to be read as though the words 'a court, after consideration of all relevant circumstances, may order execution' appeared before the words 'against the immovable property of the party'. 

 

As such, the court will decide whether or not to order execution against immovable property having regard to all relevant circumstances pertaining to the particular case.

 

Examples of relevant circumstances are:

a)    the circumstances in which the debt was incurred,

b)    attempts made by the debtor to pay off the debt,

c)     the financial position of the parties,

d)    the amount of the debt,

e)    whether the debtor is employed or has a source of income to pay off the debt, and

f)     any other factors which are relevant.

 

Hopefully, by following this long and drawn-out route, your patience will be rewarded with the final settlement of the debts owing to you.

 

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delport ward & pienaar

attorneys, notaries &  conveyancers
1st floor - cornerstone house

16 loop street

cape town

8001

 

telephone, cape town
+27-21-419.3733

 

telefax, general
+27-21-419.3743

 

telefax, conveyancing
+27-21-425.6782

 

telefax, collections dept
+27-21-421.6625

 

telephone, london
+44-20-8133.0337

 

telephone, washington dc
+1-202-657.6733

 

telephone, hong kong
+852-8139.7374

 

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1st floor - cornerstone house, 16 loop street, cape town | docex 600, cpt | t, +27-21-4193733 | f, +27-21-4193743

info@dwp.co.za | www.dwp.co.za