ENFORCING A JUDGMENT DEBT

After judgment, it is up to you to enforce it.

Many respondents pay once judgment has been given but you may need to remind the judgment debtor to pay the debt. If you do not think the debtor will pay, you can commence enforcement proceedings immediately after judgment.

You generally have only six years from the date of the judgment to start enforcement proceedings. Under section 34 of the Limitation of Actions Act 1936 (SA), a judgment creditor has 15 years from the date of the judgment to enforce the debt. However, rule 201.5 of the Uniform Civil Rules 2020 provides that if a judgment creditor wishes to enforce a debt after 6 years, the creditor must obtain the leave or permission of the Court to proceed.

A court judgment will be entered on the credit record of the debtor for five years. This means they may not be able to obtain credit or borrow money. In many cases, this may be incentive enough for them to pay the debt.

  1. Investigation Summons

The first process in the enforcement of a judgment for a debt for less than $12,000 is an investigation hearing. If the debtor is present at court, you can ask the Magistrate to conduct an investigation hearing into the respondent’s financial position immediately after giving judgment.

To request an investigation hearing, you will need to lodge an Application to Enforce a Judgment (Form 141) [Rule 203.4 UCR]. The Registry will then issue an investigation summons to the judgment debtor which is served by the Sheriff. You will be advised of a time and date for the investigation summons hearing and you should attend.

Before the Investigation Summons hearing, the judgment debtor is required to complete a Form 145 Questionnaire form detailing their financial situation. This will include how much they spend on rent, bills, food and other expenditure, as well as information about their assets and liabilities.

During the hearing you will have a chance to question the debtor on this information. The Registrar in charge of the hearing will then usually make an order for the debt to be paid in installments.

The court will only order the debtor to pay installment amounts they can afford. If the debtor has no means to pay the debt, the court can adjourn the hearing if the debtor’s circumstances are likely to change.

An order for payments in installments is the most common order made. You will need to make arrangements for payments to be made to you direct, and monitor the payments to ensure the court order is kept.

If the judgment debtor fails to appear for the hearing, the court can order the issue of a warrant of apprehension to have the debtor brought before the court as soon as possible. You will need to complete the Application to Enforce a Judgment (Form 141) [Rule 201.6 UCR] and pay a fee for the warrant to be executed. This cost is added on to the total amount payable by the debtor. If the debtor is apprehended, the Sheriff will take them to the nearest court for a hearing which may mean you cannot attend. You will be notified of the outcome.

  1. Examination hearing

If the debtor misses two or more payments under the order made at the investigation hearing, you can apply for an examination hearing on an Application to Enforce a Judgment (Form 141) [Rule 203.7 UCR]

At this hearing the debtor will be asked to explain why he or she has not complied with the order from the investigation hearing. If the creditor’s circumstances have changed then the installments to be paid under the order may be modified.

If the court is not satisfied that the judgment debtor has a reasonable excuse for failing to make payments, the court can issue a Warrant of Commitment, which may result in the imprisonment of the debtor for up to 40 days. This does not extinguish the debt.

 

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