SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
The writ of execution will be issued by the court with ‑ out notice to the debtor and then served by a sheriff on the debtor. After service, the assets of the debtor will be attached in order to satisfy the debt. These assets can be any movable property (including bank accounts) or immovable property. If a bank account is attached, the bank will be served with the writ, as well as a notice of attachment, and the funds held in the account will be frozen and then paid over to the creditor. If movables are attached, they will be removed and sold in execution to satisfy the debt. The attachment of immovable property is somewhat more complicated but, if successful, the property will be sold at auction. If sufficient assets to satisfy the debt cannot be found, the aggrieved party can proceed to apply for the sequestration of the debtor (having them declared to be bankrupt); if successful, the debtor’s estate will be placed in the hands of an administrator so that assets can be liquidated for the benefit of creditors. Emoluments attachment order The second method of enforcement is an emoluments attachment order. In this instance, a creditor would approach the court on application after a breach of a financial order. This application is made on notice, and the employer of the debtor will be cited in the applica ‑ tion. If successful, the court will order that repayment of the debt is made to the creditor directly by the debt ‑ or’s employer and deducted from the debtor’s salary or wages. This can be done in a singular instance, if sufficient, or on an ongoing future basis if necessary. Garnishee order A garnishee order is to be distinguished from an emoluments attachment order. It allows the creditor to attach any debt owing to the debtor by a third party, for that debt to be paid directly to them. This applica ‑ tion is made on notice, and the third party must be cited. Attachment of a pension, annuity or another interest This method of enforcement is prescribed by Section 26 (4) of the Maintenance Act 99 of 1998 and provides that a creditor may approach a court to seek an order
that a pension, annuity, gratuity or compassionate allowance or other similar benefit in the name of the debtor be attached and paid to the creditor. In this instance, such an interest will be attached in terms of a writ of execution or another of the above-mentioned remedies that has already been granted. For exam ‑ ple, if a writ of execution is successfully obtained, this method of enforcement can be used to attach a debtor’s pension interest. This is done by application to the court on notice, and the financial institution that holds the policy must be cited. If successful, the court will order the financial institution to make payment of the debtor’s pension interest (or a portion thereof) directly to the creditor to satisfy the debt. This is only possible for maintenance orders. Contempt of court order If a debtor is in breach of a financial order, the credi ‑ tor may make application on notice for the debtor to be held in contempt of court. This is only applicable to orders for the payment of maintenance, and not to orders for payment of a capital amount. In order to be successful, the creditor must show that: • the debtor is aware of/has knowledge of the order; • the debtor is in breach of the order; • the debtor’s breach of the order is wilful; and • the debtor’s breach of the order is mala fide (in bad faith). If successful, a court will make an order of enforce ‑ ment (ie, ordering the debtor to pay the debt), and this order will be coupled with an order for the debtor’s imprisonment. This period of imprisonment will be suspended if the debtor complies with the enforce ‑ ment order by making payment and if the debtor is not again found to be in contempt of the court order within a specified period. If the debtor is again found to be in contempt of the order within this specified period, they will be sentenced to a period of imprisonment. International Enforcement of a Financial Order In terms of divorce orders (which in South Africa con ‑ tain financial orders), Section 13 of the Divorce Act states that South African courts will recognise the validity of a divorce order granted in a foreign coun ‑ try if, on the date on which the order was granted, either party to the marriage was a national, domiciled
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