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You and Your Rights

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You and Your Rights

Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.

Debts, Recovery Of

What to do when someone owes you money

Debts arise in two ways - when a person fails to pay a previously agreed sum of money, such as rent or the full purchase price of goods; or when someone claims money from another person as compensation for, say, an accident, defective goods or defamation. More than 90 per cent of civil actions arise from these two causes - either someone claims that you owe them money or someone owes you money. Because recovering money through the courts (other than the small claims court) is normally expensive and time-consuming, it is often better to come to a private agreement about the payment of a debt. If, for instance, you acknowledge owing someone money, offer to repay it in a lump sum or by instalments. If, on the other hand, you are owed money, try to recover it by sending the debtor a letter or visiting him or her personally before you approach the courts. Although the employment of a debt-collectors is an option worth considering, remember that many high-pressure methods of debt-collection are illegal.

Deciding on which court to use 

Before taking legal action to recover a debt, ascertain which court will hear the case:

DEBTS OF UP TO  R3000 The easiest way to recover easily determined debts below R3000 is to bring an action through the small claims court. Because the procedure is less complicated than in a magistrate's court, many people reduce the size of a debt so that they can institute an action in a small claims court.

DEBTS OF UP TO R100000 The recovery of debts of up to R100000 can be instituted in a magistrate's court in terms of the Magistrates' Courts Act, 1944.

DEBTS OF MORE THAN R100000 A claim for more than R100000 must be brought in the appropriate division of the Supreme Court. (See structure of the courts.) In general, similar rules regarding jurisdiction in respect of persons, property and causes of action apply here as in magistrate's courts, except that the divisions of the Supreme Court have the power to make orders for unlimited amounts.

The letter of demand 

You can try to recover a debt by sending a letter of demand to the person (the debtor) who owes you the money. You can do this yourself or you can ask your attorney to do so for you. If your attorney sends a registered letter of demand and the debtor pays the money, you can claim the cost of the attorney's letter as well. While, legally speaking, there is no difference in legal force between a letter of demand from the creditor and that from an attorney, attorneys' letters usually produce better results because creditors will take the threat of legal action more seriously. The letter must specify the claim - for example, the price of something sold to the debtor and delivered or handed over, and other information that would make it quite clear what the claim refers to. If the debt is less than R3000, go to the clerk of the small claims court for your area and send an official small claims court demand. 

If the debtor admits the debt 

On receipt of your letter, the debtor can either deny owing you the money (in which case a summons will have to be issued), or can admit it and pay the amount owing. The debtor can also make a written offer to pay, but you are not obliged to accept this. If the debt is acknowledged in writing, the debtor must agree to pay the money in a lump sum or by instalments. If this is not done, you will be entitled, in a magistrate's court, to obtain judgement against the debtor without further notice. If the debtor accepts the terms, you must be informed of this by registered letter.

If the money is still not paid 

If the debtor fails to abide by the agreed means of payment, you (or your attorney) can write to the clerk of the court (provided an amount of more than R3000 and less than R100000 is involved), enclosing a copy of the letter of demand, a copy of the debtor's offer (and your acceptance of the offer), and an affidavit from you. The affidavit must specify what payments, if any, have been made and in what way the debtor has failed to carry out the agreed terms of the offer. Using this information, the clerk of the court will enter judgement against the debtor for the amount claimed, or the balance due. The fact that the obligation to pay now becomes an order of court will enable you to have the debtor's property sold to recover what is owed to you. You must inform the debtor by registered letter (if he or she was not in court) that judgement was given, what its terms were, and the consequences of the failure to obey the order. Alternatively, your letter can ask the debtor to consent, in writing, to judgement in your favour. If this has been done, you can simply apply to the clerk of the court for judgement for the payment of the debt in a lump sum or in instalments as agreed. If you adopt this procedure, you can obtain judgement without incurring any other legal costs, as the debtor is obliged to pay for your expenses. If the debtor ignores the demand or denies owing you the money you will have to have a summons issued and served on him or her. The amount you are claiming determines the court from which the summons is issued. Once the summons has been issued you take it to the relevant sheriff of the court who will then serve it on the debtor. If the summons was issued by the small claims court, both parties will be required to attend court on a date specified in the summons. If the debtor does not appear, you will probably be granted default judgement and would then be entitled to have a warrant of execution issued against the debtor's property. If the summons was issued from a magistrate's court, the debtor will be called upon to give notice in writing of any intention to defend the action (usually within five court days of receiving the summons). If the debtor does not give notice of intention to defend, you are entitled to apply to the clerk of the court for a default judgement and the issue of a warrant of execution.

What to do after the judgement 

If, within 10 days of the judgement, the debtor has made no attempt or offer to pay the debt, you can have a notice issued from the court calling on the person to appear before a magistrate in chambers (that is to say, not in open court) to explain why he or she should not be committed for contempt of court and ordered to pay the debt and costs in instalments or otherwise. Remember, however, that the notice will not be issued unless you can show that the debtor knows about the judgement, either by virtue of having been present when it was given, or as the result of having been informed of it by registered letter. If you intend having the notice (official form No 40) issued without the help of an attorney, ask the clerk of the court to help you. Once you've filled in all the details and both you and the clerk of the court have signed it, it will be served on the debtor by the sheriff of the court. On the day specified in the notice, the debtor must appear in court to give evidence under oath on his or her financial position. Either you or your attorney may cross-examine the debtor with regard to the ability to pay the debt. The magistrate will, after inquiring into the income, expenses and assets of the debtor, (depending on the circumstances): 

  • Order the debtor to pay the debt in instalments as large as he or she can afford; 
  • Instruct that the debtor's present or future salary be attached; or 
  • Issue a warrant of execution against the debtor's property if this has not already been done.

Warrant of execution 

A warrant of execution enforces a judgement or court order when a debtor fails to pay the sum ordered in a judgement. It may be proceeded with prior to calling the debtor to appear before a magistrate as outlined in the previous sub-section. Once a warrant has been issued by the clerk of the court, the sheriff of the court will attach as much of the debtor's moveable property as is necessary to cover the debt, sell it at a public auction and hand over the proceeds to you. If the debtor has insufficient moveable property to satisfy the judgement, execution will take place in relation to immoveables. You can issue a warrant of execution without the aid of an attorney by obtaining a blank official form No 32, 'Warrant of Execution Against Property', from any stationer selling legal forms, filling it out in triplicate, having it signed by the clerk of the court and handing it to the sheriff of the court to be served on the debtor. A fee is payable to the sheriff for this service. In 1996 the recommended fee charged by an attorney for having a warrant issued was R30.

Issuing the summons 

A summons will have to be issued against a debtor who refuses to acknowledge an oral demand or letter of demand for a debt. A summons must also be issued for debts that are not based upon a definite amount of money, for example: 

  • In an action for damages that has arisen through someone's negligence; 
  • For the cancellation of a sale because the goods are defective; or 
  • For specific performance in terms of an agreement - that is, for the fulfilment of an obligation in terms of a contract. For example, if you enter into a contract to have your lights repaired and this is not done, you may claim an order for 'specific performance' against the electrician. The electrician will be obliged, by the order, to fix the lights. Once a summons has been served, a defendant can either agree to pay or give notice to defend the action. In the latter case, the sequence of events will be as follows: 
  1. Issue of summons; 
  2. Notice of the intention to defend; 
  3. Plea by defendant; 
  4. Plaintiff's reply to the defendant's plea (if necessary); 
  5. Close of 'pleadings', in which further details may be exchanged; 
  6. The case comes to trial.

What must be included in a summons 

If you draw up a magistrate's court summons yourself, you must sign it in your own name and arrange to have it served on the defendant by the sheriff of the court. In drawing up the summons, make sure that it contains:

  • Your address within the jurisdiction of the court (so that the defendant can serve documents on you); 
  • A form of consent to judgement by the defendant; 
  • A form of notice of intention to defend; 
  • A notice drawing the defendant's attention to the consequences of failure to obey the court's order once judgement is given against him or her. 

A summons form must also include:

PARTICULARS OF CLAIM The particulars of claim must show the nature and amount of the claim, the rate of interest claimed and the court fees charged (fees for the sheriff and clerk of the court). In setting out the nature and amount of the claim, you must not only state specifically what type of order you want the court to grant but also provide the facts on which your claim is based. In other words, you must give essential details of your cause of action - all the facts that would have to be proved in court for your claim to succeed. Although the particulars will vary according to the type of claim, in general, once the case comes to court, you are limited to the claim and the cause of action contained in the particulars. The principle is that defendants must know what case they have to meet - what case is being brought against them. If the precise nature is not clear in the summons, a defendant may object to it - technically known as 'excepting' to it - on the grounds that it is 'vague and embarrassing' (meaning it is not possible to establish what case is being brought) or does not 'disclose a cause of action'. As long as the defendant knows what he or she is being sued for, the courts will not uphold purely technical exceptions. Nevertheless, it is still advisable to get an attorney to draw up particulars - especially in complicated matters. Particulars containing more than one hundred words may be set out separately in an annexure attached to the summons.

OTHER REQUIREMENTS Although it is not possible here to set out all the requirements for a valid summons, these are some of the most important criteria: 

  • The surname, sex, residence or place of business of the defendant and, where known, the first names or initials and occupation, must be given; 
  • The defendant must be given five days (or 20 days if the defendant is the state or an employee of the state in his or her official capacity) in which to pay the amount claimed or to give notice of the intention to defend the case. If, at the end of the time allowed, the defendant has not responded to the summons in any way, you may request that judgement be granted against him or her. This is called default judgement.

Service of the summons 

A summons has to be served by the sheriff of the court and may be served: 

  • On the defendant personally or on someone authorised to act on the defendant's behalf; 
  • At the defendant's residence or place of business to a person apparently not younger than 16 years of age, living or working there (Service on a caretaker or commissionaire is not considered good service. Service on the mother of a defendant where there was no evidence that the defendant stayed with her was held to be bad service, as was service on the wife of a defendant at a place other than the defendant's home); 
  • At the defendant's place of employment, to a person apparently not younger than 16 years of age, in authority over the defendant or in charge of the business; 
  • At the domicilium citandi (address for the purpose of serving summons) if the defendant nominated one when entering into a contract; 
  • At the office of a company (if addressed to a company) to a responsible employee; 
  • By registered post if the plaintiff has specified it; 
  • By fixing it to the door (or to an outer door if the actual door of the flat, room or office cannot be found) if the person on whom the summons is to be served prevents the sheriff from doing so by keeping the door closed; 
  • By fixing a copy of the summons to the outer principal door of the residence or domicilium citandi of the person on whom the summons is to be served if, after a diligent search, the sheriff cannot find that person or someone apparently over the age of 16 residing or employed there, or, in the case of a company, a responsible employee to accept the summons; 
  • By publication in local newspapers, or by registered letter to the last known address of the defendant, or by fixing it to the door of the courthouse, or some other kind of service if the court is satisfied that the summons cannot be served in any of the ways outlined above. Service is made by handing over a true copy of the summons to the defendant or whomever service is made on. Such a person may demand to see the original summons. In practice, the sheriff should always show the original. The sheriff is normally not permitted to serve a summons, or any other process of court, on a Sunday or public holiday. The sheriff notifies the clerk of the court and you (the plaintiff) when the summons has been served by handing over a 'return of service' stating the date and manner of service. If the sheriff has been unable to serve the summons, it is returned to you together with reasons for non-service.

What the defendant must do when a summons is served 

A defendant served with a summons can: 

  • Defend the claim on factual or legal grounds by filling in the notice of intention to defend on the back of the summons and returning it to the clerk of the court. (The clerk will then tell the plaintiff or his or her attorney that the defendant intends to defend the claim, although the defendant is required to serve a copy of the notice on you, giving the requisite details of address for service as shown on the form); 
  • Admit liability for the amount claimed in the summons by signing the form of consent to judgement on the summons and lodging it with the clerk (or alternatively by signing the consent form on the original summons, which in that case must go back to the clerk); 
  • Admit liability and undertake to pay the amount by instalments in terms of Section 57 of the Magistrates' Courts Act, 1944; 
  • Pay the amount due, together with the costs you've incurred, in which case the matter will be regarded as settled; 
  • Do nothing at all and leave the next step to the plaintiff, in which case the plaintiff will be entitled to obtain judgement by default without giving any further notice to the defendant.

If the defendant denies the debt 

The defendant must deliver a plea to you or your attorney and the court within seven days of giving notice of intention to defend your action. The plea is the answer (or the basis of defence) to what you've set out in the particulars of claim in the summons. Once the case comes to court, only the defence contained in the plea may be put to use. For instance, the defendant may deny allegations or, alternatively, acknowledge all or some of them, but present facts aimed at putting the dispute in a different light. The defendant may also plead no knowledge of the debt, thereby putting you to the proof. Another possibility is that he or she may, prior to pleading, object to the summons on the grounds that it is 'vague and embarrassing', that it does not disclose a cause of action or that proper procedures were not observed in issuing it.

Replying to the defendant 

After the defendant has delivered a plea, you will be given the opportunity to reply. A reply is only necessary in a 'yes, but' situation - in other words, where you admit some or all of what the defendant raised, but wish to raise some response to it. The reply must set out the nature of the answer to the defendant's plea, the grounds on which it is based and the facts on which you are relying. In fact, the requirements of a plea also apply to a reply. If the defendant's plea is a denial, or an admission or 'confession and avoidance' (admitting the facts but seeking to avoid the legal consequences) of the claim in the summons, you do not have to reply. After you have made your reply, the pleading stage is closed and, on your initiative, the matter can be set down for trial. At any stage during this period of pleading, either side can ask for more information from the other. For instance, the defendant may ask you for further particulars after reading your summons; you may do likewise after you've read the defendant's plea. The sequence of pleadings may be summons, plea, reply, close of pleadings, trial. The purpose of pleadings is to isolate the issues at stake so that when the case is heard both parties know what they agree on and what they disagree on. Only the parts on which they disagree have to be proved or disproved by the production of evidence in court. For example, a defendant sued for a debt might admit having at one stage owed the plaintiff money but may allege that this was subsequently paid. The plaintiff may deny this. They join issue and things can be taken no further until the next stage, where the court is asked to decide on the issue based on the evidence before it.

The pre-trial stage 

A court action may consist of two stages - the procedural steps required before the court hearing and the actual hearing. The rules governing the pre-trial stage of a case are so highly technical and extensive that it is not possible to provide a detailed guide here. If you wish to pursue a matter beyond the stage of summons or plea, consult an attorney if the case is not entirely straightforward. The law on the subject is contained in the Magistrates' Courts Act No 32 of 1944, and in the Rules of Court promulgated from time to time by the Rules Board.

Hearing in a magistrate's court 

Once pleadings have been closed, the case set down for trial by the plaintiff (or, in rare cases, the defendant) and requests for the notification of any relevant documents met by both sides, the trial may proceed. In a civil matter before a magistrate's court, the trial is the judicial investigation of the claim and defence of litigants as disclosed in the summons and plea. The trial takes place at the court from which the summons was originally issued, by the presentation of oral evidence under oath in open court. (It is a firmly established principle of South African law that proceedings must take place in a public court except in special circumstances.) The sequence of proceedings during a trial is as follows:

OPENING A CASE It is usual for the parties (the plaintiff and the defendant or their legal representatives) to make a brief opening address in which they outline the facts they intend to prove and any question of law that may be in dispute. The plaintiff (or a legal representative representing the plaintiff) usually begins the proceedings because the burden of proof usually lies on the side of the plaintiff.

GIVING EVIDENCE The plaintiff usually gives evidence first; thereafter, witnesses are called to give evidence - known as examination-in-chief - on behalf of the plaintiff. A witness called to the witness stand is asked to take the oath (or, if there is any objection to taking the oath, to make a solemn affirmation) by the magistrate who is presiding in the case. After being instructed to raise the right hand, the witness is asked: 'Do you swear that the evidence you are about to give before this court is the truth, the whole truth and nothing but the truth?'. With right hand still raised, the witness answers: 'I swear, so help me God' (or 'I solemnly affirm'). A witness may address the court in any official language; indeed, all questions must be put in the preferred language of the person giving evidence. Furthermore, he or she is permitted to speak any other language through an interpreter. Where argument is adduced or evidence is to be lead in a language other than that in which the pleadings are drawn, the services of an interpreter should be acquired before the trial begins. Parties can request witnesses to come to court to give evidence or they may compel them to do so by serving subpoenas (literally, orders under threat of punishment) on them. (See subpoena.) If they fail to attend the court they can be imprisoned for contempt of court. When the plaintiff has led all the evidence needed from a witness, the defendant (or an attorney representing the defendant) is entitled to cross-examine the witness; in other words, to ask questions that may lead to the evidence being discounted or rebutted. Thereafter the plaintiff may, if necessary, re-examine the witness; in other words, ask questions to clarify any points that may have been raised in cross-examination. After all the plaintiff's witnesses have given evidence and have been cross-examined by the defendant, the defendant calls witnesses to give evidence-in-chief on his or her behalf. The defendant's witnesses may in turn be cross-examined by the plaintiff.

Argument 

After the evidence of both parties has been heard, the plaintiff argues the case before the court on the facts and on any legal points. The defendant does the same and the plaintiff has the right to reply.

Delivering judgement 

At the close of the case the magistrate (usually after taking time to consider the matter) delivers judgement. This may be in favour of the plaintiff to the extent that the claim was successfully proved, or in favour of the defendant to the extent that a successful defence was conducted. The magistrate may decide not to give judgement for either party on the grounds that there is insufficient evidence on either side to justify making any decision. This is called 'absolution from the instance'. Finally, the magistrate will make an order as to costs in the case. Generally, the losing party (including a plaintiff who has failed to prove a case) has to pay the legal costs of the winner. In the case of a recovery of a debt, the defendant will be ordered to pay the sum claimed by the plaintiff, together with costs. If property is in dispute, the sheriff may be ordered to seize it on behalf of the plaintiff. If the dispute concerns the legal rights of the parties, such as a right of way over land, the judgement has the effect of settling the matter once and for all. In this sense the judgement becomes the law between the parties, or between the parties and others, subject to the right of appeal.

Paying costs

There are generally two types of costs order: party and party costs and attorney and client costs. The first type is incurred in the litigation. In general, it does not include costs incurred before the start of proceedings. Thus, the fees for counsel's opinion taken before the trial do not form part of party and party costs. Attorney and client costs are those costs over and above party and party costs that an attorney is entitled to claim from a client for professional services rendered, and which the client has to pay whatever the outcome of the case. Generally, only party and party costs, for which a scale of fees is set out in the Magistrates' Courts Act, 1944, are awarded to a successful litigant: in other words, the successful litigant is awarded costs such as the attorney's charges for taking instructions to sue, drawing up the summons, the reply to the defendant's plea, requests for further particulars, preparing for trial and attendance in court. The party to whom costs are awarded draws up a bill of costs which has to be 'taxed' (approved) by the clerk of the court. The clerk examines the bill to see if it has been drawn up in accordance with the prescribed scale of fees and makes any necessary alterations. The attorney's charges in respect of attorney and client costs must, if the client requires this, similarly be taxed by the clerk before the attorney can submit them to the client. An attorney may sue for fees due before an account has been taxed. However it will be a valid (albeit merely delaying) defence that they have not yet been taxed. There is no fixed scale for these charges and the clerk of the court has the discretion to decide what are fair and reasonable rewards for services rendered by the attorney. Such charges would normally include all the consultations between the attorney and the client before the issue of the summons, telephone calls, letters and the drawing up of documents.

Appealing against the judgement 

Any party who is dissatisfied with the judgement of a magistrate's court may lodge a formal notice of appeal (within 20 days of the judgement) with the clerk of the court. The grounds of appeal - which may be on the finding of facts made by the court or on a ruling of law - must be set out in the formal notice of appeal. Fifteen days before a civil appeal is heard, the appellant must deliver a concise statement of the main points (without elaborating on them) that he or she intends to argue on appeal. A list of authorities in support of each point must also be tendered and the registrar of the supreme court supplied with addresses relevant to the case. The appeal is made to the provincial division of the Supreme Court within whose area of jurisdiction the magistrate's court falls. (See appeals, civil.)

Starting an action in the Supreme Court 

An action usually starts with a demand to the debtor for settlement of the claim. The demand may be written or oral and need not be made by an attorney. However, it is advisable that you put the demand in writing in case you have to prove in court that you made it. It is not usually necessary to make a demand, but if you do so before issuing a summons, it will safeguard your costs for the summons. (If no demand is made and the debtor pays the debt on receiving a summons, you will be liable for the costs of the summons.)

Issuing a summons 

A summons is issued from the office of the registrar of the Supreme Court and is addressed to the sheriff ordering that the defendant (debtor) of the case be informed of the claim and of the steps to be taken if the defendant wishes to oppose the claim. There are three types of summons and the form used will depend on the nature of the claim: 

  • If a claim is based on a liquid document (a signed acknowledgment by the debtor that he or she owes you a certain specified sum of money - for example, a cheque, deed of sale, mortgage bond, acknowledgment of debt), you can proceed by way of a summons for a provisional sentence. This
Disclaimer :: You and Your Rights
Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein.
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