SUBSISTENCE ALLOWANCE FOR CRIMINAL JUSTICE SYSTEM

Tariff of allowances payable to witnesses in civil cases

A witness is entitled to the following allowances for each 24 hours or part thereof for which thewitness is absent from his residence or place of sojourn;

Subsistence allowance

(a) reasonable actual expenses if it is necessary to hire accommodation for the night; and
(b) (i) R50; or(ii) reasonable actual expenses incurred for meals on submission of proof of the expenses to the satisfaction of the court manager/ registrar;
(c) The allowances provided for above are payable for the full period for which the witness is absent from his/ her residence or place of sojourn for purposes of attending the court;
(d) In calculating the period of absence, a witness is allowed 24 hours for each distance of 600 kilometres or part thereof travelled;
(e) The allowance provided for above is not payable if the fare of a witness includes the cost of meals and accommodation.
Transport and travelling expenses

A witness may make use of public or private transport and is entitled to the following allowances:-
(a) Private Transport –
(i)92c per km in case of a motorcycle; or
(ii) R1,30 per km in case of a motor vehicle, calculated along the shortest route; or
(b) Public Transport –
(i) An amount equal to the fare for the least expensive transport along the shortest route.

A witness may only use air transport if the court manager/ registrar/ taxing master of the High Court of South Africa is satisfied that the use thereof is warranted and has approved that the witness may make use of air transport.

Income forfeited

On satisfactory proof having been produced that a witness has forfeited income as a result of his/her attendance of a civil case, he/ she is entitled to an allowance equal to the actual amount of income so forfeited, to a maximum of R1 500 per day.

Unlike the criminal justice system the government does not pay any subsistence allowance for any person who is undergoing civil imprisonment. Subsistence allowance of the person in civil prison has to be provided to prison authority by the person on whose application the judgment debtor is kept in prison. The Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors. No judgment debtor shall be arrested in execution of a decree unless and until the decree holder pays to the court such sum as the judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the court. Where a judgment debtor is committed to the civil prison in execution of a decree the court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed by the government or where no such scale have been fixed as it considers sufficient with reference to the class to which he belongs. The monthly allowance fixed by the court shall be supplied by the party on whose application the judgment-debtor has been arrested by monthly payment in advance before the first day each month. The first payment shall be made to the proper officer of court for such portion of the current month as remains unexpired before the judgment-debtor is committed to the civil prison and the subsequent payment shall be made to the officer in charge of the civil prison.21 The rules of subsistence allowance for judgment-debtor apply to the case of arrest before judgment.

  • The Code of Civil Procedure, Section 58.
  • The Code of Civil Procedure, Order XXXVIII Rule 4
  • Sujan Vs Sagor, 5 CWN 145.
  • The Code of Civil Procedure, Order XXI Rule 39
  • Law of Civil Procedure By M. Mahmudul Islam and Probir Neogi at P.939

Release from Arrest and Detention:

When a person is arrested and detained in civil prison whether before or after judgment he can be released on different grounds mentioned in the Civil Procedure Code. If warrant of arrest is issued against defendant before judgment the he shall not be arrested if he pays to the officer entrusted with arrest with execution of warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs claim.23 In order to give the judgment debtor an opportunity of satisfying the decree the court may before making the order of detention leave the judgment-debtor in the custody of the officer of the court for a specified period not exceeding fifteen days or release him on furnishing security to the satisfaction of the court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.24 Where the decree in execution of which judgment debtor is arrested is a decree of the payment of money and the debtor pays the amount of decree and the cost of arrest to the arresting officer such officer shall release him. Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he may be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force. Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realized or commit him to the civil prison in execution of the decree.

The executing court is bound to inform the arrested judgment-debtor that he may apply for insolvency.

  • The Code of Civil Procedure, Order XXXVIII Rule 1
  • The Code of Civil Procedure, Order XXI Rule 40
  • The Code of Civil Procedure, section 55(1)
  • The Code of Civil Procedure, section 55(3 & 4)
  •  Ram Vs Mackenzie, 50 PLR 1909.

Every person detained in the civil prison in execution of a decree shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be,

(1) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance:

Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

The immunity from re-arrest is applicable only when the judgment-debtor is released from detention in jail and not when he was released after arrest without being committed to civil prison which means civil jail not the court house.29 Again a judgment-debtor may be released from prison on the ground of serious illness as government is not liable to pay subsistence allowance to him. At any time after a warrant for the arrest of a judgment-debtor has been issued the court may cancel it on the ground of his serious illness. Where a judgment-debtor has been arrested the court may release him if in its opinion he is not in fit state of health to be detained in the civil prison. Where a judgment-debtor has been committed to the civil prison he may be released there from by the Government on the ground of the existence of any infectious or contagious disease or by the committing court or any court to which that court is subordinate.

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