MODULE 9 NOTE 1

DEBT COLLECTION

Topic: Section 58

Civil Facilitation Team 2019

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 CONTENT FOR THIS MODULE AND NOTE
This Module and Note contains the following documents in order of appearance
CONTENT

1 Relevant Resources

2 Circulars from Commission.

4 Rule for discussion of this topic

5 Discussion of Guidance Note on subject matter

6 Quality Assurance Guideline

7 Checklists

8 Precedents and Suggested Record of Proceedings

9 Resources referred to in this note

10 Bibliography

11 Own Note for making notes

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 RELEVANT RESOURCES

RELATED LINKS TO RELATED EXPLAINATION WHERE

RESOURCES
RELEVANT

RESOURCES RESOURCES NECESSARY

1 Act 1.1 The Magistrates Court 1.1 Section 28, 29, 38, 55, 57, 59
Act 32 of 1944 109

1.2 The National Credit Act Sections 8, 40, 46, 47, 48, 51,
34 of 2005 81, 86, 92, 93, 101, 103, 106,
124, 125, 126B, 127, 128,
129,
130, 131, 132, 133

1.3 National Credit

Amendment Act 7 of
2019
1.4 National Credit
Amendment Act 19 of
2014
1.5 Prescription Act 68 of Section 17
1969 Section 80
1.6 The General Law 1.2 Section 35
Amendment Act 62 of
1955

1.7 The Law of Evidence 1.3 Section 3

Amendment Act 45 of
1988

2 Rules 2.1 The Magistrates Court 2.1

Rules

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 Regulations 4.1 The National Credit Act, Regulation 28
Regulations Regulation 29
Regulation 30
Regulation 31
Regulation 36
Regulation 39
Regulation 40
Regulation 41
Regulation 42
Regulation 43
Regulation 45
Regulation 46

3 National 3.1 Van Loggerenberg, 2.1 Section 28

Instruments Jones and Buckle: The Section 29
Civil Practice of the Section 38
Magistrates Court in Section 55
South Africa Volume I, Section 57
tenth edition, Service 11, Section 58
2016 Section 59
Section 109

3.2 Van Loggerenberg, 3.2 Rule 1(4)

Jones and Buckle : The Rule 3
Civil Practice of the Rule 4
Magistrates Court in Rule 5
South Africa Volume ll, Rule 6
tenth edition, Service 11, Rule 6A
2016 Rule 9(12)
Rule 12
Rule 17
Rule 60A

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 Regulations 4.1 The National Credit Act, Regulation 28
Regulations Regulation 29
CIRCULARS

Regulation 30
Regulation 31
Regulation 36
Regulation 39
Regulation 40
Regulation 41
Regulation 42
Regulation 43
Regulation 45
Regulation 46
4 FORMS 4.1 Form 5 of Annexure 1 Annexure

Form 5A of Annexure 1

Form 5B of Annexure 1

CIRCULAR 17 OF 2018

Kindly double click to open document

1. Circular 17 of 2018

2. Circular 17 of 2018

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 ACT: AMENDMENTS RESULTING FROM ACT 7 OF 2017 IN RESPECT OF SECTION 58
See (Resource 42.1)
AMENDMENT

Substitution of section 58 of Act 32 of 1944, as substituted by section 1 of Act 63 of

1976
‘‘Admission of liability and ‘‘Admission of liability and undertaking to pay debt
undertaking to pay debt in in instalments or otherwise
instalments or otherwise

58. 58.
(1) If any person (in this Section (1) If the defendant or judgement creditor
called the defendant) upon received a letter of demand or has been
receipt of a letter of demand served with a summons demanding payment of
or any debt, consents in writing to judgement in
service upon him or her of a favour of the creditor (in this section called the
summons demanding plaintiff) for the amount of the debt and costs
payment claimed in the letter of demand or summons, or
of any debt, consents in for any other amount, [the clerk of] the court
writing to judgement in favour [shall] may, on the written request of the
of plaintiff or his or her attorney accompanied by
the creditor (in this section
called
the plaintiff) for the amount of
the debt and costs claimed in
the letter of demand or
summons, or for any other
amount, [the clerk of] the
court [shall] may, on the
written request of the plaintiff
or his or her attorney (a) if no summons has been issued, a copy of the
accompanied by letter of demand; and

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(a) if no summons has been
issued, a copy of the letter (b) the defendant’s written consent to judgment,]
of demand; and and subject to subsection (1B)—

(b) the defendant’s written

consent to judgment,] (a) enter judgment in favour of the plaintiff for the
and subject to subsection (1B) amount of the debt and the costs for which the
— defendant has consented to judgment; and

(a) enter judgment in favour of

the plaintiff for the amount of
the debt and the costs for (b) if it appears from the defendant’s written
which the defendant has consent to judgment that he or she has also
consented to judgment; and consented to an order of court for payment in
specified instalments or otherwise of the
amount of the debt and costs in respect of
(b) if it appears from the which he or she has consented to judgment,
defendant’s written consent order the defendant to pay the judgment debt
to judgment that he or she and costs in specified instalments or otherwise
has also consented to an in accordance with this consent, and such
order of court for payment in order shall be deemed to be an order of the
specified instalments or court mentioned in section 65A (1).
otherwise of the amount of
the debt and costs in respect
of which he or she has
consented to judgment,
order the defendant to pay
the judgment debt and costs
in specified instalments or
otherwise in accordance with

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 this consent, and such order
shall be deemed to be an (1A) The offer referred to in
order of the court mentioned subsection (1)(b) must—
in section 65A (1).

(1A) If the defendant consents to

an order of court for
payment in specified
instalments referred to in
subsection (1)(b) must—
(a) set out full particulars of the
defendant’s—
(a) set out full particulars of the defendant’s—
(i) monthly or weekly income and expenditure,
supported where reasonably possible
by the most recent proof in the possession of
the defendant;

(i) monthly or weekly income

and expenditure, supported
where reasonably possible
by
the most recent proof in the
possession of the defendant;
(ii) other court orders or agreements, if any, with
other creditors for payment of a debt and costs
in instalments; and

(ii) other court orders or

agreements, if any, with (b) indicate the amount of the offered instalment.
other
creditors for payment of a
debt and costs in (1B) The written request referred to in subsection
instalments; (2) must be accompanied by—
and

(a) the summons or if no summons has been

(b) indicate the amount of the issued, a copy of the letter of demand;
offered instalment.

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(1B) The written request referred (b) the defendant’s written acknowledgment of
to in subsection (1) must be liability and offer;
accompanied by—

(a) the summons or if no (c) if the defendant consents to an order of court for
summons payment in specified instalments referred to in
has been issued, a copy of subsection (1)(b)—
the letter of demand;

(b) the defendant’s written

consent to judgement;
(i) the written consent; and
(ii) the full particulars and documentary
(c) if the defendant consents to evidence referred to in subsection (1A) in
an order of court for payment order for the court to be apprised of the
in specified instalments defendant’s financial position at the time
referred to in subsection the defendant consented to judgment.
(1)(b)—

(i) the written consent; and

(ii) the full particulars and
documentary evidence (1C) The court—
referred to in subsection
(1A) in order for the court (a) may request any relevant information from the
to plaintiff/ attorney in order for the court to be
be apprised of the apprised of defendant’s financial position at the
defendant’s financial time judgment is requested;
position at the time the
defendant consented to
judgment.

(1C) The court— (b) must act in terms of the provisions of the

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(a) may request any relevant
information from the plaintiff or
his or her attorney in order for
the court to be apprised of the
defendant’s financial position
at
the time judgment is
requested;
(b) must act in terms of the
provisions of the National
Credit Act and the regulations
thereunder dealing with over-
indebtedness, reckless credit
and affordability assessment,
when considering a request
for
judgment in terms of this
section, based on a credit
agreement under the National
Credit Act;
(c) may, if the defendant is
employed, and after satisfying
itself that it is just and
equitable
that an emolument
attachment order be issued
and that the amount is
appropriate, authorise an
emoluments attachment order
referred to in section 65J; and
National Credit Act and the regulations
thereunder dealing with over- indebtedness,
reckless credit and affordability assessment,
when considering a request for judgment in
terms of this section, based on a credit
agreement under the National Credit Act;
(c) may, if the defendant is employed, and after
satisfying itself that it is just and equitable that
an emoluments attachment order be issued and
that the amount is appropriate, authorise an
emoluments attachment order referred to in
section 65J; and
(d) may, notwithstanding the defendant’s consent to
pay any scale of costs, make a costs order as it
deems fit.
(2) The provisions of section 57(3) and (4) [shall]
apply in respect of the judgment and court
order referred to in subsection (1) of this
section.
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 (3) The provisions of this section apply subject to
(d) may, notwithstanding the the relevant provisions of the National Credit
defendant’s consent to pay Act where the request for judgment is based on
any a credit agreement under the National Credit
scale of costs, make a costs Act’’.
order as it deems fit.

(2) The provisions of section

57(3) and (4) [shall] apply
In respect of the judgment
and court order referred
to in subsection (1) of this
section.

(3) The provisions of this section

apply subject to the relevant
provisions of the National
Credit Act where the request
for judgment is based on a
credit agreement under the
National Credit Act.’’.

1 INTRODUCTION AND GENERAL OVERVIEW

DISCUSSION

1.1. In terms of this section the debtor may, after receiving a letter of demand or a summons,
consent to judgment in writing. Such consent is unconditional and the clerk of the court shall
upon written request of the creditor enter judgment in accordance with the consent. If the
consent is conditional upon anything, the remedy is not available to a judgment creditor, for
example that the judgment debtor consents to judgment as claimed on condition that the
judgment creditor delivers or hands over a specific motor vehicle sometime in the future. The

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 debtor may however, as in the case of section 57, consent to judgment for an amount other than
the amount claimed.

2 PROCEDURE

2.1. The request for judgment is on a form 5B See (Resource 42.2) (conforming in all
respects to the example under Forms) accompanied by the following documents;

1. a copy of the letter of demand together with the original proof of posting or the debtors
signature, acknowledging receipt thereof, if no summons was issued;

2. if delivered by e-mail of fax as agreed between the parties in terms of rule 2(1) proof
thereof together with an affidavit of service;

3. If a summons was issued, the original summons and sheriffs’ return of successful
service;

4. The original consent to judgment by the debtor;

5. The original underlying written agreement between the parties;

6. An affidavit containing such evidence as is necessary to establish that all requirements

in law have been complied with in terms of rule 4(2) & 12(6A); See (Resource 42.3)

7. In terms of section (1A), the offer referred to in subsection (1)(b) must set out full
particulars of the defendant’s
(i) monthly or weekly income and expenditure, supported where reasonably possible by
the most recent proof in the possession of the defendant and

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 (ii) other court orders or agreements, if any, with other creditors for payment of a debt
and costs in instalments; and must indicate the amount of the offered instalment. It is
important for the judgment creditor to furnish the judgment debtor with a credit
worthy
certificate of the judgment debtor which is usually obtained from the credit bureau;

8. The Court may request all the particulars and documentary evidence referred to in
subsection (1A), in order for the court to be apprised of defendant’s financial position at
the time the offer was made and accepted; Section (2A) (c); See (Resource 42.4)

9. The Court may request any relevant information from the plaintiff/ attorney in order for the
court to be apprised of defendant’s financial position at the time judgment is requested;
Section (2B) (a); See (Resource 42.4)

10. In terms of section 2(B)(b) the court must act in terms of the provisions of the National
Credit Act and the regulations thereunder dealing with over- indebtedness, reckless credit
and affordability assessment, when considering a request for judgment in terms of this
section, based on a credit agreement under the National Credit Act; See (Resource 42.5)

2.2 From the wording of section 58(1) (b)(ii) it is clear that the debtor may, in addition to the consent
to judgment, also consent to a court order for the payment of such debt and costs in specific
instalments. The debtor is not obliged to consent to such an order. It should therefore be kept in

mind that in terms of section 58 the possibility exists that the debtor may also have consented to

an instalment order. If the debtor consented to such an order the clerk of the court enters

judgment in favour of the creditor and makes an order for the payment of such debt and costs in

instalments in accordance with the debtor’s consent.

2.3 If the debtor consents to an instalment order which is made an order of court, such an order is

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 deemed to be a section 65A (1) See (Resource 42.4) order.

3. PRACTICAL APPLICATION OF SECTION 58 AND RULE 4

3.1 Rule 4 deals with sections 57 and 58 requests for judgment to the Clerk of court. The rule sets
out additional requirements that must be complied with to enable the granting of judgment.

3.2 The request for judgment must be in writing and is directed to the Clerk of court. Form 5B See
(Resource 42.2) must be used. The form must be accompanied by an affidavit which contains
evidence as is necessary to establish that all requirements in law have been complied with.
Forms 5A See (Resource 42.6) requires a copy of the letter of demand sent to the defendant in
terms of section 56, See (Resource 42.4) the defendant’s written acknowledgment of liability to
the debtor for the amount of the debt and the costs claimed, copy of the plaintiff’s written
acceptance of offer and the affidavit or affirmation by the plaintiff or a certificate by the
plaintiff’s attorney. Proof of service or posting must accompany the request for judgment.

3.3 It is mandatory for an affidavit by a creditor indicating how the terms of an agreement or offer has
been breached, detailing the payments made to date and how the balance owing has been
arrived at. In addition, certain documents must accompany the request for judgment. The
section129 National Credit Act notice should be attached.

3.4 The necessity for this provision is evident from the difficulty experienced in determining whether
to grant judgment where one is not fully apprised of all the relevant legal requirements. One
must be sure that all these requirements are met before entering a judgment and making it an
order of court. Due to the serious consequences flowing from an order of court the law must be
correctly applied.

3.5 Rule 4(1)(a) See (Resource 42.3) prescribes that where a letter of demand as referred to in
section 59 of the Act is used it must „contain particulars about the nature and the amount of the
claim.‟

3.6 The National Credit Act, 2005 (NCA) See (Resource 42.5) impacts on the credit market
significantly. Accordingly, its‟ objectives to protect consumers and provide a consistent,

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 transparent, fair, responsible, efficient, effective and accessible credit market is being addressed
in the requirements set out in rule 4.

3.7 Sub Rule 4(1) (b), See (Resource 42.3) refers specifically to the NCA and reads as follows: ‐

“Where the original cause of action is a credit agreement under the National Credit Act, 2005, the
letter of demand referred to in section 58 of the Act must deal with each one of the relevant
provisions of section 129 and parties that alleges the right to the claim and the grounds for
the demand are communicated to ensure that there is no prejudice faced by the debtor due to
ignorance.

3.8 Frequently debts are ceded to debt collectors who proceed to recover the debt in their own
name. To ensure that the debtor is fully apprised with the chain of events relating to the debt
recovery, the fact and details of the cession must be communicated in the letter of demand.
When suing by way of summons it is mandatory in terms of Rule 5(9) that a plaintiff who
sues as cessionary must indicate the name, address and description of the cedent at the date of
cession. Accordingly, it is imperative that the legal relationship between the parties that alleges
the right to the claim and the grounds for the demand are communicated to ensure that there is
no prejudice faced by the debtor due to ignorance.

3.9 Sub rule (3) makes the requirements for consents in terms of section 58 compatible with
consents in terms of Rule 11(1). It reads as “a consent to judgment in terms of section 58 of the
Act shall be signed by the debtor, by two witnesses and the plaintiff whose names shall be stated
in full and whose addresses and telephone numbers shall also be recorded.”

3.10 The last sub rule makes some of the provisions namely Rules 12(6), (6A) and (7) apply to a
request for judgment in terms of sections 57 and 58 of the Act. Rule 12(6) requires that if the
claim is based on a liquid document or any agreement in writing, then such agreement must be
filed with the request. Rule 12(6A) requires that evidence confirming compliance with any
legislative requirement be filed with the request. The effect of the reference to rule 12(7) is
that the clerk may refer the application to a magistrate.

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 3. 1 1 The impact of this provision on sections 57 and 58 judgments is that proper
consideration is given to the request by ensuring that all necessary facts and evidence is
provided and judicial intervention is sought where necessary.

3.12 T h e Registrar or clerk of court shall refer to the court any request for judgment on a claim
founded on any cause of action arising out of or based on an agreement government by the NCA,
and the court shall there upon make such order or give such order or give such judgment as it
may deem fit.

4. CONCLUSION

4.1. Although the procedures in sections 57 and 58 appear to be similar, there are important
differences.

4.2. The material differences between the procedures is that section 58 makes provision for an
unconditional consent to judgment, that is that judgement can be obtained as soon as the consent
to judgement is signed, while section 57 entails an admission of liability and an undertaking to pay
the debt in instalments failing which the creditor may request judgment. It is only when the debtor
defaults can the creditor proceed to obtain judgement.

4.3 The difference between the two procedures has important consequences for the debtor. Should
the section 57 procedure be followed, judgment may only be requested if the debtor fails to comply
with the offer he or she made. As long as the debtor regularly pays the instalments, judgment
cannot be entered against him/her. If judgment is not entered against the debtor, his/her
creditworthiness will not be affected. Should the section 58 procedure be followed the debtor
unconditionally consents to judgment, and if judgment was obtained it has a definite influence on
the creditworthiness of the debtor.

4.4. As far as the creditor is concerned, the section 58 procedure seems more advantageous. It is a
simpler procedure because the debtor’s consent to judgment is unconditional. It is not necessary
to inform the debtor of the acceptance of his/her offer and it is not necessary that a certificate or
an affidavit/affirmation have to accompany the request for judgment. If it is not clear from the
document submitted, whether it is an admission of liability and undertaking to pay in terms of
section 57 or an unconditional consent to judgment in terms of section 58 or a hybrid of the two,

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 the approach to be adopted is to treat the document as a section 57 admission of liability and
undertaking to pay, as this procedure is less prejudicial to the judgment debtor.
LEGISLATIO
RELATED

4.5. The question is also regularly asked whether a judgment debtor can consent, in writing, to the
N

issue of an emoluments attachment order before the granting of judgment in terms of section 57 or
58. This subject was laid to rest in Russells (Ceres) v Manyashe & Another 2005(4) SA 380 (C)
See (Resource 42.7) where it was held that a judgment debtor can consent in writing to payment
of the future judgment debt and an emoluments attachment order before judgment is granted.
Amendment brought about in terms of Act 7 of 2017 also confirms that there can be a consent to
pay emoluments attachment order by consent.

4.6. There are two recent cases which gave rise to the issue of consenting to emolument attachment
orders and the issue of judicial insight. It is important to take note of what the judge had to say
regarding section 58 applications. University of Stellenbosch Legal Aid Clinic and others v Various
Respondents Western Cape Division, Cape Town (Desai Judgement Case no. 16703/14, See
(Resource 42.8) MBD Securitisation (Pty) Ltd v Booi 2015 3 All SA 644, 2015 (3) SA 221 See
(Resource 42.9)

IMPACT OF VARIOUS AMENDMENTS IN TERMS OF ACT 7 OF 2017 RELATING TO

SECTION 57, SECTION 58 AND RULE 12 DEFAULT JUDGEMENTS

1. INTRODUCTION AND GENERAL OVERVIEW

1.1 Objectives of the Act

1.1.1. To amend the Magistrates’ Courts Act, 1944, so as to insert certain definitions;
1.1.2. To regulate the rescission of judgments where the judgment debt has been paid;
1.1.3. To regulate jurisdiction by consent of parties;
1.1.4. To regulate the factors a court must take into consideration to make a just and
equitable order;
1.1.5. To regulate the payment of debts in instalments or otherwise;
1.1.6. To regulate consent to judgments and orders for the payment of judgment debts in
instalments;
1.1.7. To regulate offers by judgment debtors after judgment;

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 1.1.8. To regulate the issuing of emoluments attachment orders;
1.1.9. To regulate debt collection proceedings pursuant to judgments granted by
a court for a regional division;
1.1.10. To regulate the suspension of execution of a debt;
1.1.11. To regulate the abandonment of judgments; and to provide
offences and penalties relating to judgments, emoluments attachment orders
and instalment orders;

2. Explanation of Relevant Legislation

EXPLANATION
ACT AND

Amendment of section 1 of Act 32 of 1944, as substituted by section 1 of Act 53 of

1970 and amended by section 23 of Act 94 of 1974, section 1 of Act 105 of 1982,
section 2 of Act 34 of 1986, section 1 of Act 4 of 1991, section 1 of Act 66 of 1998
and section 1 of Act 31 of 2008 See (Resource 42.1)

1. Section 1 of the Magistrates’
Courts Act, 1944, is hereby
amended—
(a) by the insertion after the
definition of ‘‘court’’ of the
following definition:
1(a) Previously “Court day” was not defined in the
MCA, but only in the Rules. The definition of
Court in the Rules could not be used in
the Act. So Whenever there was litigation in
terms of MCA, one had to look at the definition
of Court day in the Interpretation of Statutes.
‘court day’ now has a definition similar to that

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 ‘‘‘court day’ means any day of the Rules. It is defined as business days
other than a Saturday, and it excludes a Saturday, Sunday or a public
Sunday or public holiday, holiday.
and only court days shall be
included in the computation (b) The National Credit Act (NCA) has been
of any time expressed in specifically defined as Act 34 of 2005.
days prescribed by this Act
or fixed by any order of
court;’’; and

(b) by the insertion after the

definition of ‘‘Minister’’ of the
following definition:

‘‘National Credit Act’

means the National Credit
Act, 2005 (Act No. 34 of
2005);’’

Amendment of section 36 of Act 32 of 1944, as substituted by section 1 of Act 55

of 2002

2. Section 36 of the Magistrates’ 2. Section 36 of MCA, deals with Rescission

Courts Act, 1944, is hereby Applications. It has been amended by the
amended— substitution of subsection (2) and the addition of
two further sections which is sections 3 and 4.
(a) by the substitution for
subsection (2) of the
following subsection:

‘‘(2) If a plaintiff in whose favour a (2) A court may vary or rescind a judgement before
default judgment has been Court: -
granted has [agreed] (i) where the plaintiff has consented in

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 consented in writing that the
judgment be rescinded or
varied, a court [must] may
rescind or vary such
judgment on application by
any person affected by it.’’;
and
‘‘(3)(a) Where a judgment debt the
interest thereon at the rate
granted in the judgment and
the costs have been paid in
full, whether the consent of
the judgment creditor for the
rescission of the judgment
has been obtained or not, a
court may, on application by
the judgment debtor or any
other person affected by the
judgment rescind that
judgment.
(b) The application contemplated
in paragraph (a)—
(i) must be made on a form which
corresponds substantially with
the form prescribed in the
rules;
(ii) must be accompanied by
writing to the rescission or variation of the
judgement,
(ii) if there is an application before the court by
any person affected by such rescission or
variation.
(3)(a) provides that a Court may rescind any
application for default judgement by any
judgement debtor or any person affected by
it, if the judgement debt, interest and costs
has been paid in full irrespective of whether a
judgement creditor has consented to this
judgement or not.
(b) This application for rescission in (a) must –
(i) correspond substantially with the
prescribed form attached to the Rules
[Form 5c]
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 reasonable proof that the
judgment debt, the interest
and the costs have been paid;
(iii) must be accompanied by
proof that the application has
been served on the judgment
creditor, at least 10 court
days prior to the Hearing of
the intended application;
(iv) may be set down for hearing
on any day, not less than 10
court days, after service
thereof; and
(v) may be heard by a Magistrate
In chambers.
(4) A court may make any cost
order it deems fit with regard
to an application contemplated
in paragraph (a).’’.
Amendment of section 45 of Act 32 of 1944
3. Section 45 of the Magistrates’
Courts Act, 1944, is hereby
(ii) must be accompanied with proof that the
judgement debt, interest and costs has
been paid. This would mean proof of
payment in the form of a receipt would be
required.
(iii) This application can only be granted if there
is proof that the application was served on
the judgement creditor 10 days prior to
the hearing of the application. Note that the
date on the application can automatically be
considered as a date for set down since the
short form will be used.
(iv) The application may be set down for
hearing not less than 10 Court days
after service. This set down could be
served with the application for rescission.
(v) The application may be heard in chambers
similar to when default judgements are
held in chambers.
(4) The Court has the authority to make any cost
order it deems necessary.
3. Section 45 has been amended in its entirety and
substituted and an addition of a subsection.
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 amended—

(a) by the substitution for

subsection (1) of the following
subsection:

‘‘(1) Subject to the provisions of
section 46, the parties’ may
consent in writing to the
jurisdiction of either court for
the district or the court for the
regional division to determine
any action or proceedings
otherwise beyond its
jurisdiction in terms of section
29(1).”, and
(1) Section 45 provides that subject to section 46,
the parties may consent in writing to the
jurisdiction of the District or Regional Court to
hear any action or proceeding that is beyond
the jurisdiction in terms of section 29(1), and;
Note that section 29 deals with jurisdiction in
respect of cause of actions. This deals with the
types of matters that can be heard in the
Magistrates Court.

‘‘(3) Any consent given in (3) A court must have jurisdiction over a person
proceedings instituted in in terms of section 28 of MCA to have force and
terms of section 57, 58, 65 or effect when a consent to jurisdiction is signed in
65J by a defendant or a terms of section 57, 58, 65 or 65J by a
judgment debtor to the defendant or a Judgement debtor.
jurisdiction of a court which
does not have jurisdiction
over that defendant or
judgment debtor in terms of
section 28, is of no force and
effect.’’

Insertion of section 55A in Act 32 of 1944

4. The following section is hereby 4. Section 55A has been inserted after section 55
inserted in the Magistrates’ of MCA.
Courts Act, 1944, after section

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 55
‘‘Factors to be taken into
account when considering an
order which is just and
equitable
55A. For purposes of Chapters
VIII and IX of this Act, the
factors a court must take into
account when considering
whether an order is just and
equitable, include, but are
not limited to—
(a) size of the debt;
(b) the circumstances in which
the debt arose;
(c) the availability of alternatives to
recover the debt;
(d) the interests of the plaintiff or
or judgment creditor;
(e) the rights and needs of the
elderly, children, persons
with disabilities and
households headed by women;
(f) social values and implications;
(g) the amount and nature of the
defendant’s or judgment
debtor’s income;
This section includes factors that must be taken
into account by the Court when considering
whether that an order is just and equitable. The
factors are exhaustive and not limited to the
following factors:
(a) the size of the debt;
(b) the circumstances in which the debt arose;
(c) the availability of alternatives to recover the
debt;
(d) the interests of the plaintiff or judgment creditor;
(e) the rights and needs of the elderly, children,
persons with disabilities and households headed
by women;
(f) social values and implications;
(g) the amount and nature of the defendant’s or
judgment debtor’s income;
(h) the amounts needed by the defendant or
judgment debtor for necessary expenses and
those of the person’s dependent on
him or her and for the making of periodical
payments which he or she is obliged to make
in terms of an order of court, agreement or
otherwise in respect of his or her other
commitments; and
(i) whether the order would, in the circumstances
of the case, be grossly disproportionate.’’.
22
(h) the amounts needed by the
defendant or judgment debtor
for necessary expenses and
those of the persons
dependent on him or her and
for the making of periodical
payments which he or she is
obliged to make in terms of an
order of court, agreement or
otherwise in respect of his or
her other commitments; and

(i) whether the order would, in

the circumstances of the
case, be grossly
disproportionate’’.

Substitution of section 65 of Act 32 of 1944, as substituted by section 2 of Act 63

of 1976

7. The following section is hereby
substituted for section 65 of the
Magistrates’ Courts Act, 1944:
‘‘Offer by judgment debtor after
judgment
7. The following section is hereby substituted for
section 65 of the Magistrates’ Courts Act,
1944: “Offer by judgment debtor after judgment

65.
(1) If at any time after a court
has given judgment for the
payment of a sum of money
and before the issue of a
notice under section 65A (1),
the judgment debtor makes
65.
(1) If at any time after a court has given judgment
for the payment of a sum of money and before
the issue of a notice under section 65A (1), the
judgment debtor makes a written offer to the
judgment creditor to pay the judgment debt in
specified instalments or otherwise and such offer

23
 a written offer to the judgment is accepted by the judgment creditor or his or her
creditor to pay the judgment her attorney, the court may, subject to
debt in specified instalments or subsection (2), at the written request of the
otherwise and such offer is judgment creditor / attorney, accompanied by the
accepted by the judgment offer order the judgment debtor to pay the
creditor or his or her attorney, judgment debt in specified instalments or
[the clerk of] the court [shall] otherwise in accordance with his or her offer
may, subject to subsection (2),
at the written request of the
judgment creditor or his or her
attorney, accompanied by the
offer order the judgment debtor
to pay the judgment debt in
specified instalments or
otherwise in accordance with
his or her offer [ and such order
shall be deemed to be an order
of the court mentioned in
section 65A (1)].

(2) The offer referred to in

subsection (1) must be
supported, where reasonably
possible, by the most recent
proof in the possession of the
debtor relating to his or her
income and expenditure, other
court orders or agreements
with other creditors for
payment of a debt in
instalments and assets and
liabilities as prescribed by the
rules.

24
(3) The court—
(a) may request any relevant
information from the plaintiff or
his or her attorney in order for
the court to be apprised of the
defendant’s financial position at
the time the written request, for
an order to pay the judgment
debt in specified instalments or
otherwise, is made;
(b) must act in terms of the
provisions of the National
Credit Act and the regulations
thereunder dealing with over-
indebtedness, reckless credit
and affordability assessment,
when considering a request for
judgment in terms of this
section, based on a credit
agreement under the National
Credit Act;
(c) may, if the defendant is
employed, and after satisfying
itself that it is just and equitable
that an emolument
attachment order be issued
and that the amount is
appropriate, authorise an
emoluments attachment order
(3) The court—
(a) may request any relevant information from the
plaintiff or his or her attorney in order for the
court to be apprised of the defendant’s financial
position at the time the written request, for an
order to pay the judgment debt in specified
instalments or otherwise, is made;
(b) must act in terms of the provisions of the
National Credit Act and the regulations
thereunder dealing with over- indebtedness,
reckless credit and affordability assessment,
when considering a request for judgment in
terms of this section, based on a credit
agreement under the National Credit Act;
(c) may, if the defendant is employed, and after
satisfying itself that it is just and equitable that
an emoluments attachment order be issued and
that the amount is appropriate, authorise an
emoluments attachment order referred to
in section 65J; and
25
 referred to in section 65J; and
(4) An order made under
subsection (1) is deemed to be
an order of the court mentioned
in section 65A (1)
Amendment of section 65E of Act 32 of 1944, as inserted by section 2 of Act 63 of
1976 and amended by section 7 of Act 81 of 1997
8. Section 65E of the Magistrates’
Courts Act, 1944, is hereby
amended by the substitution for
subsection (1) of the following
subsection:
‘‘(1) If at the hearing of the
proceedings in terms of a
notice under section 65A (1)
the court is satisfied—
(a) that the judgment debtor has
movable or immovable
property which may be
attached and sold in order to
satisfy the judgment debt or
any part thereof, the court
may—
(i) authorise the issue of a
warrant of execution against
such movable or
(4) An order made under subsection (1) is deemed
to be an order of the court mentioned in section
65A (1)
8. Section 65E of the Magistrates’ Courts Act, 1944,
is hereby amended by the substitution for
subsection (1) of the following subsection:
‘‘(1) If the court is satisfied at the hearing of
proceedings in terms of a notice under
section 65A (1) –
(a) that the judgment debtor has movable or
immovable property which may be attached and
sold in order to satisfy the judgment debt or
any part thereof, the court may—
(i) authorise the issue of a warrant of execution
against such movable or immovable property or
such part thereof as the court may deem fit; or
26
 immovable property or such
part thereof as the court may
deem fit; or
(ii) authorise the issue of such a
warrant together with an order
in terms of section 73; or
(b) that there is a debt due to the
judgment debtor which may be
attached in terms of section 72
to satisfy the judgment debt
and costs or part thereof, the
court may authorise the
attachment of that debt in
terms of that section; or
(c) that the judgment debtor or, if
the judgment debtor is a
juristic person, the director or
officer summoned as
representative of the juristic
person, at any time after
receipt of a notice referred to
in section 65A(1), has made
an offer in writing to the
judgment creditor or his or her
attorney to pay the judgment
debt and costs in specified
instalments or otherwise,
[whether by way of an
(ii) authorise the issue of such a warrant together
with an order in terms of section 73; or
(b) that there is a debt due to the judgment debtor
which may be attached in terms of section 72 to
satisfy the judgment debt and costs or part
thereof, the court may authorise the attachment
of that debt in terms of that section; or
(c) that the judgment debtor or, if the judgment
debtor is a juristic person, the director or
officer summoned as representative of the
juristic person, at any time after receipt of a
notice referred to in section 65A(1), has made
an offer in writing to the judgment creditor or
his or her attorney to pay the judgment debt and
costs in specified instalments or otherwise, or, if
such an offer has not been made, that the
judgment debtor is able to pay the judgment
debt and costs in reasonable instalments, the
court may order the judgment debtor to pay the
judgment debt and costs in specified
instalments and, where the judgment
27
emoluments attachment debtor is a natural person and is employed and
order or otherwise,] or, if after satisfying itself that it is just and equitable
such an offer has not been that an emoluments attachment order be issued
made, that the judgment and that the amount is appropriate, in addition
debtor is able to pay the authorise the issue of an emoluments
judgment debt and costs in attachment order by virtue of section 65J(1)
reasonable instalments, the for the payment of the judgment debt and
court may order the judgment costs by the employer of the judgment
debtor to pay the judgment debtor, and postpone any further hearings of
debt and costs in specified the proceedings.’’.
instalments and, [if the
judgment debtor is employed
by any person who resides,
carries on business or is
employed in the district, or if
the judgment debtor is
employed by the State
in the district,] where the
judgment debtor is a natural
person and is employed and
after satisfying itself that it is
just and equitable that an
emoluments attachment
order be issued and that the
amount is appropriate, in
addition authorise the issue of
an emoluments attachment
order by virtue of section
65J (1) for the payment of the
judgment debt and costs by
the employer of the judgment
debtor, and postpone any
further hearings of the
proceedings.’’.

28
Substitution of section 65J of Act 32 of 1944, as inserted by section 2 of Act 63 of
1976 and amended by section 2 of Act 53 of 1983 and section 11 of Act 81 of 1997

9. The following section is hereby 9. The following section is hereby substituted for
substituted for section 65J of section 65J of the MCA,1944:
the Magistrates’ Courts Act,
1944:

‘‘Emoluments attachment orders ‘‘Emoluments attachment orders 65J.

65J.
(1) (1)
(a) Subject to the provisions of (a) Subject to the provisions of subsection (2), a
subsection (2), a judgment Judgment creditor may cause an order
creditor may cause an order (hereinafter referred to as an emolument
(hereinafter referred to as an attachment order) to be issued from the
emoluments attachment order) court of the district in which the judgment debtor
to be issued from the court of resides, carries on business or is employed.
the district in which the Note jurisdiction has changed. It no longer the
[employer of the] judgment employer but the judgement debtor’s particulars.
debtor resides, carries on
business or is employed [, or, if
the judgment debtor is
employed by the State, in
which the judgment debtor is
employed].

(b) An emoluments attachment (b) An emoluments attachment order—

order—
(i) [shall] must attach the
emoluments at present or in
future owing or accruing to the
judgment debtor by or from his
or her employer (in this section
(i) must attach the emoluments that a judgement
debtor has at present or in future owing or
accruing to the judgment debtor by or from
his or her employer (in this section called the
garnishee). An attachment can only be

29
 called the garnishee), to the made in respect of the amount necessary to
amount necessary to cover the cover the judgment and the costs of the
judgment and the costs of the attachment, whether that judgment was obtained
attachment, whether that in the court concerned or in any other court; and
judgment was obtained in the
court concerned or in any other
court; and

(ii) [shall] must oblige the
garnishee to pay from time to
time to the judgment creditor or
his or her attorney specific
amounts out of the emoluments
of the judgment debtor in
accordance with the order of
court laying down the specific
instalments payable by the
judgment debtor, until the
relevant judgment debt and
costs have been paid in
full.
(ii) must oblige the garnishee to pay from time to
time to the judgment creditor or his or her
attorney specific amounts out of the emoluments
of the judgment debtor in accordance with the
order of court laying down the specific
instalments payable by the judgment debtor, until
the relevant judgment debt and costs have been
paid in full.

(1A) (1A)
(a) The amount of the instalment (a) Not more than 25% of the judgement debtors
payable or the total amount of basic salary may be attached for the payment of
instalments payable where emoluments, irrespective of the number of
there is more than one emoluments attachment orders.
emoluments attachment
order payable by the judgment
debtor, may not exceed 25 per
cent of the judgment debtor’s
basic salary.

30
(b) For purposes of this section,
‘‘basic salary’’ means the
annual gross salary a judgment
debtor is employed on divided
by 12 and excludes additional
remuneration for overtime or
other allowances.
(c) (i) When a court considers—
(aa) the authorisation of an
emoluments attachment
order; or
(bb) any other order contemplated
in this section, and after
having considered all
submissions before the court
and after having called for
and considered all further
available documents, the
court is satisfied that other
emoluments attachment
orders exist against the
judgment debtor, the court
must postpone the further
consideration of the
authorisation or other order
and set the matter down for
hearing.
(b) Basic salary for the purpose of emoluments
means the annual gross salary that a judgement
debtor earns, divided by 12 and it does not
include additional earnings for overtime or other
allowances.
(c) (i) When a court considers
(aa) granting an authorization for an emolument
attachment order, or
(bb) any other order contemplated in terms of
this section, after having heard all the evidence
and after having called for all the available
evidence, the court is satisfied that an
emoluments attachment order will be granted
against the judgement debtor, the court must
postpone the authorization of the emoluments
attachment order or any other order for further
consideration and set the matter down for
hearing.
31
(ii) The party applying for the (ii) The judgement creditor/ Attorney must serve
authorisation of an emolument notice of the date of the hearing referred to in (i)
attachment order or other order on all the creditors or their attorneys, as well as
contemplated in this section, on the judgement debtor, if he or she was not
must serve notice of the date of present or represented when the consideration
the hearing referred to in of the authorization of an emoluments
subparagraph (i) on the other attachment order or other order was postponed.
creditors or their attorneys, and
on the judgment debtor, if he or
she was not present or
represented when the
consideration of the
authorisation of an
emoluments attachment order
or other order was postponed.

(iii) The court may after hearing all
parties at the ensuing hearing,
make an order regarding the
division of the amount
available to be committed to
each of the emoluments
attachment orders, after
satisfying itself that each
order is just and equitable and
the sum of the total amount of
the emoluments attachment
orders are appropriate and
does not exceed 25 per cent
of the judgment debtor’s basic
salary.
(iii) The court may after hearing all the evidence
from all the creditors, make an order regarding
the division of the amount available to be
distributed to each of the emoluments
attachment orders only after ensuring that it is
just and equitable to do so. Note the total
amount of the emoluments attachment orders
must not exceed 25% of the judgement debtor’s
basic salary.

(2) An emoluments attachment (2) An emoluments attachment order may only be

32
 order [shall not] may only be issued
issued

(a) unless the judgment debtor (a) if the Court has authorised the emoluments
has consented thereto in attachment order after satisfying itself that it is
writing or] if the court has so just and equitable that an emolument
authorised, after satisfying attachment order be issued, and that the amount
itself that it is just and is appropriate and the authorization
equitable that an thereof has not been suspended.
emoluments attachment
order be issued and that the
amount is appropriate,
whether on application to the
court or otherwise, and such
authorisation has not
been suspended

(2A) A judgment creditor or his or (2A) The Judgement creditor/ attorney must serve a
her attorney must serve, on notice on the judgement debtor an on his or
the judgment debtor and on her employer informing them that the
his or her employer, a notice, judgement creditor/ attorney intends to cause
which corresponds an emoluments attachment order to be
substantially with the form authorised in terms of subsection (2). The form
prescribed in the rules, of the used must correspond substantially with the
intention to have an form that is prescribed in the rules.
emoluments attachment
order issued against the
judgment debtor in
accordance with the
authorisation of the court
referred to in subsection (2).

(2B) The notice referred to in (2B) The notice referred to in subsection (2A) must
subsection (2A) must inform inform the judgement and the employer

33
 the judgment debtor and his
or her employer—

(a) of the judgment creditor’s (a) The judgement creditor I intends to issue the
intention to have an emoluments attachment order against the
emoluments attachment judgement debtor in accordance with the
order issued against the authorization of the court in subsection (2)
judgment debtor in
accordance with the
authorisation of the court
referred to in subsection
(2);

(b) of the full amount of the
capital debt, interest and
costs outstanding,
substantiated by a statement
of account; and
(b) There must be a statement of account
indicating the capital, interest and costs
that are outstanding, and

(c) that, unless the judgment
debtor or his or her employer
files a notice of intention to
oppose the issuing of the
emoluments attachment order
within 10 days after service of
the notice on them, an
emoluments attachment order
will be sought.
(c) If the judgement debtor or employer intends
opposing the issuing of the emoluments
attachment order, a notice of opposition
must be filed within 10 days after service of the
notice, failing which an emolument
attachment order will be sought.

(2C) (2C)

(a) The notice of intention to (a) The notice of intention to oppose in subsection

34
 oppose contemplated in
subsection (2B) (c) must state
the grounds upon which the
judgment debtor or employer
wishes to oppose the issuing
of the emoluments attachment
order.
(b) The grounds which may be (b)
used to oppose the issuing of
the emoluments attachment
order include, but are not
limited to, the following:
(i) that the amounts claimed are (i)
erroneous or not in
accordance with the law; or
(ii) that 25 per cent of the (ii)
judgment debtor’s basic salary
is already committed to other
emoluments attachment
orders and that the debtor will
not have sufficient means left
for his or her own
maintenance or that of his or
her dependants.
(c) The notice of intention to (c)
oppose must be accompanied
by—
(i) a certificate by the employer of (i)
the judgment debtor setting
(2B) (c) must state the grounds upon which the
judgement debtor or the employer intends
opposing the issuing of the emoluments
attachment order.
The grounds for the issuing of the emoluments
attachment order includes amongst other
things
the amounts claimed are not correct or not
according to the law; or
25% of the judgement debtor’s salary is
already attached to other emoluments
attachment orders and the debtor will not have
sufficient means left for the maintenance of
him or herself and his or her dependents
The notice of intention to oppose must be
accompanied by –
a certificate by the employer of the judgement
debtor setting out the following particulars –
35
 out particulars of—

(aa) all existing court orders
against the judgment debtor
or agreements with other
creditors for payment of a
debt and costs in instalments;
and
(aa) all the court orders against the judgement
debtor or agreements with any other creditors
for payment of a debt and costs in instalments;
and

(bb) when reasonably attainable, (bb) Amounts needed by the debtor for necessary
the amounts needed by the expenses for himself and his dependants and
debtor for necessary all payments which the judgement debtor is
expenses and those of the compelled to make in terms any agreements
person’s dependent on
him or her and for the making
of periodical payments which
he or she is obliged to make
in terms of an agreement or
otherwise in respect of his or
her other commitments.

(i) Contact details of all judgement creditors or

(i) the contact details of all the their attorneys.
relevant judgment creditors
or their attorneys; and
(ii) The judgement debtor’s latest salary advice
(ii) the latest salary advice of the
judgment debtor.
(2D) The judgement creditor or his attorney may
(2D) If a notice of intention to accept the reasons for opposition or set the
oppose is filed and the matter down for hearing at Court if based on
judgment creditor or his or over- commitment of the judgement debtor’s

36
 her attorney does not accept salary then the other judgement creditors or
the reasons for the their attorneys must also be given notice.
opposition, he or she or his
or her attorney may set the
matter down for hearing in
court with notice to the
judgment debtor and
employer and if the
opposition is based on
over commitment
of the judgment debtor’s
salary to existing court orders
or agreements with other
creditors for payment of a
debt and costs in
instalments, notice must be
given to the other judgment
creditors or their attorneys.
(2E) After hearing all parties and after satisfying
(2E) The court may, after hearing itself that the order is just and equitable the
all parties and after satisfying court may make one of the following orders –
itself that the order is just and
equitable—

(a) Rescind the emoluments attachment order or

(a) rescind the emoluments amend it to such an extent that it only affects
attachment order or the balance of the emoluments of the
amend it in such a way judgement debtor after considering the
that it will affect only the necessary expenses of the judgement debtor
balance of the emoluments of and his dependents; or
the judgment debtor over and
above the sufficient means
necessary for his or her

37
 maintenance and that of
his or her dependants; or

(b) make any order, including ( b) Make any order including the amount
an order regarding the available for payment to be divided amongst
division of the amount all the emoluments attachment orders
available to be committed to provided that it does not exceed 25% of the
all the emoluments judgement debtor’s basic salary and an order
attachment orders, after as to costs.
satisfying itself that the
amount is appropriate and
does not exceed 25 per
cent of the judgment
debtor’s basic salary and an
order as to costs.

(3)
(a) Any emoluments attachment (3)
order [shall] must be (a) Any emoluments attachment order must be
prepared [by the judgment prepared and signed by the judgement
creditor or his attorney, creditor or his or her attorney.
shall be] and signed by the
judgment creditor or his or
her attorney [and the clerk
of the court, and shall be
served on the garnishee by
the messenger of the court
in the manner prescribed
by the rules for the service
of process].

(b) The clerk of the court must

38
 ensure that the court—
(i) has authorised the
emoluments attachment order;
and
(ii) has jurisdiction as provided for
in subsection (1)(a), before
issuing an emolument
attachment order authorised in
terms of subsection (2) by
signing it and may either ask
the judgment creditor or his
or her attorney for more
information or refer the order to
the court in the case of any
uncertainty.
(c) The emoluments attachment
order must be served on the
employer of the judgment
debtor, (hereinafter called the
garnishee) and if the judgment
debtor was not present or
represented when the
emoluments attachment
order was authorised, also on
the judgment debtor, by the
sheriff in the manner
prescribed by the rules for the
service of process.
(b) The clerk of the court must ensure the
following –
(i) the court has authorised the emoluments
attachment; and
(ii) that the court has jurisdiction to the effect that
the emoluments is issued from the court where
the judgement debtor lives, resides or carries
on business BEFORE issuing an emoluments
attachment order authorised by the court by
signing it. In addition, the clerk may also
request further information from the judgement
creditor or his attorney or refer the matter to
court if there is any uncertainty.
(c) Once issued by the clerk of the court, the
emoluments attachment order must be served
on the employer of the judgement debtor by
and if the judgement debtor was not present or
represented when the emoluments attachment
order was authorised it must also be served on
him or her. The sheriff in terms of Rule 9 of the
Magistrates Court must do service.
39
(4)
(a) Deductions in terms of an
emoluments attachment
order shall be made, if the
emoluments of the
judgment debtor is paid
monthly, at the end of the
month following the month in
which it is served on the
garnishee, or, if the
emoluments of the judgment
debtor is paid weekly, at the
end of the second week of the
month following the month in
which it is so served on the
garnishee, and all payments
thereunder to the judgment
creditor or his or her attorney
shall be made monthly with
effect from the end of the
month following the month in
which the said order is served
on the garnishee.
(b) The judgment creditor or his or
her attorney [shall, at the
reasonable request of the
garnishee or the judgment
debtor,] must furnish [him or
her] the garnishee and the
judgment debtor, free of
charge with a quarterly
(4)
(a) Deductions, if made monthly, will shall be
made at the end of the month following the
month on which the emoluments attachment
order was served on the employer (garnishee),
or if made weekly, at the end of second week
of the month following the month in which the
emoluments attachment order is served on the
employer (garnishee), and all payments shall
be made to the judgment creditor or his
attorney from the end of the month when the
deductions were made or at the end of the
month following when the said order was
served on the garnishee.
(b) The judgement creditor or his attorney must
furnish the garnishee and the judgment debtor,
free of charge with a quarterly statement
containing particulars of the payments
received and the amounts owing.
40
 statement containing
particulars of the payments
received up to the date
concerned and the balance
owing.
(5) An emoluments attachment (5) An emoluments attachment or is a valid order
order may be executed or judgement of the court and can be executed
against the garnishee as if it against the garnishee or any other interested
were a court judgment, party. The garnishee or any other interested
subject to the right of the party may dispute the existence or validity of
judgment debtor, the the order or the outstanding balance.
garnishee or any other
interested party to dispute the
existence or validity of the
order or the correctness of the
balance claimed.

(6)
(a) If, after the service of such an
emoluments attachment order
on the garnishee, the
garnishee believes or becomes
aware or it is otherwise shown
that the—
(6)
(a) After the service of the emoluments
attachment order on the garnishee, if the
garnishee believes or becomes aware or the
following is shown.

(i) judgment debtor, after
satisfaction of the emoluments
attachment order, will not have
sufficient means for his or her
own [and his dependents’]
maintenance [, the court shall
rescind the emoluments
(i) that the judgement debtor after payment of the
emoluments attachment orders, will not have
sufficient means for his or her maintenance
as well as the maintenance of his or her
dependents; or

41
 attachment order or amend it
in such a way that it will
affect only the balance of the
emoluments of the judgment
debtor over and above the
sufficient means] or that of his
or her dependants; or

(ii) amounts claimed are (ii) the amounts claimed are a mistake or not in
erroneous or not in accordance with the law, the garnishee,
accordance with the judgement debtor or any other interested
law, the garnishee, judgment party must immediately notify the judgement
debtor or any other interested creditor or his attorney by way of notice.
party must without delay and in
writing notify the judgment
creditor or his or her attorney
accordingly,

(b) The notice must contain the reasons for

(b) The written notification referred believing or knowing that the judgement
to in paragraph (a) must set debtor does not have sufficient means for the
out the reasons for believing maintenance of him or herself as well as his
or knowing that the judgment or her dependants or the amounts claimed
debtor will not have sufficient were mistaken or not in accordance with the
means for his or her own law.
maintenance or that of his or
her dependants or that the
amounts claimed are
erroneous or not in
accordance with the law.

(c) The judgment creditor or his or (c) The judgment creditor or his or her attorney
her attorney must, after must, after receiving the notice in paragraph

42
 receiving the notice
contemplated in paragraph (a),
without delay indicate whether
he or she accepts the reasons
given in that notification and if
not, set the matter down for
hearing in court with notice to
the garnishee, judgment debtor
or any other interested party
referred to in paragraph (a).
(d) The court may, after hearing all
parties and after satisfying
itself that the order is just and
equitable—
(i) rescind the emoluments
attachment order or amend it in
such a way that it will affect only
the balance of the emoluments
of the judgment debtor over and
above the sufficient means
necessary for his or her
maintenance and that of his or
her dependants; or
(ii) make any order including an
order regarding the division of
the amount available to be
committed to all the
emoluments attachment
orders, after satisfying itself
that the amount is appropriate
(a), without delay indicate whether he or she
accepts the reasons given in the notice and if
not, then set the matter down for hearing in
court after giving notice to the garnishee,
judgement debtor or any other interested
party in paragraph (a)
(d) The court may then after hearing all the
parties and after satisfying itself that the order
is just and equitable by referring to the factors
in section 55A,
(i) Rescind the emoluments attachment order or
amend it to such an extent that it only affects
the balance of the emoluments of the
judgement debtor after considering the
necessary expenses of the judgement debtor
and his dependents; or
(ii) make any order including the amount
available for payment to be divided amongst
all the emoluments attachment orders
provided that it does not exceed 25% of the
judgement debtor’s basic salary and an order
as to costs.
43
 and does not exceed 25 per
cent of the judgment debtor’s
basic salary and an order as to
costs.

(7) Any emoluments attachment
order may at any time on good
cause shown be suspended,
amended or rescinded by the
court, and when suspending
any such order the court may
impose such conditions as it
may deem just and reasonable.
(7) An emoluments attachment order may at any
time on good cause shown be suspended,
amended or rescinded by the court, and when
suspending any such order the court may
impose such conditions as it may deem just
and reasonable.

(8) (8)
(a) Whenever any judgment (a) If a judgement debtor leaves the services of
debtor to whom an an employee (garnishee) before the
emoluments attachment order judgement debt is paid in full, the judgement
relates leaves the service of a debtor must immediately inform the
garnishee before the judgment judgement creditor or his or her attorney in
debt has been paid in full, writing of the name and address of the new
such judgment debtor [shall] employer. The judgement creditor or the
must forthwith advise the attorney must serve a certified copy of such
judgment creditor or his or emoluments attachment order on the new
her attorney in writing of employer together with an affidavit or
the name and address of his affirmation by the judgement creditor or an
or her new employer, and the affidavit by the attorney indicating the
judgment creditor or his or her payments received since the issue of the
attorney may cause a certified emoluments, the costs if any and the balance
copy of such emoluments outstanding.
attachment order to be served
on the said new employer,
together with an affidavit or
affirmation by him or her or a

44
 certificate by his or her
attorney specifying the
payments received by him or
her since such order was
issued, the costs, if any,
incurred since the date on
which that order was issued
and the balance outstanding.

(b) An employer on whom a (b) The new employer is bound by the order and
certified copy referred to in is deemed to be substituted for the original
paragraph (a) has been so garnishee; however, the judgement debtor,
served, [shall] is thereupon garnishee or any interested party may dispute
[be] bound thereby and [shall the existence or validity of the order and the
then be] is deemed to have correctness of the outstanding balance.
been substituted for the
original garnishee, subject to
the right of the judgment
debtor, the garnishee or any
other interested party to
dispute the existence or
validity of the order and the
correctness of the balance
claimed.

(9) (9) If the judgement debtor who is employed and

[(a)] Whenever any judgment has an employments attachment order
debtor to whom an authorised and issued against the garnishee,
emoluments attachment leaves the services of the garnishee before the
order relates, leaves the payment of the debt and becomes self-
service of the garnishee employed or is employed by someone else, he
before the judgment debt has or she is obliged to comply with the
been paid in full and emoluments attachment order pending the
becomes self- employed or is service on the new employer

45
 employed by someone else,
he or she [shall, or shall] is,
or is pending the service of
the emoluments attachment
order on his or her new
employer, again [be] obliged
to comply with the relevant
order referred to in
subsection (1)(b). again [be]
obliged to comply with the
relevant order referred to in
subsection (1)(b).

(10) (10)

(a) Any garnishee may, in respect (a) A garnishee may for the services rendered in
of the services rendered by respect of the emoluments attachment order,
him or her in terms of an recover from the judgement creditor a
emoluments attachment order, commission of 5% of all the amounts deducted
recover from the judgment from the judgement debtor’s emoluments. In
creditor a commission of up to practice this 5% is deducted before the
5 per cent of all amounts amount is paid over to the judgement creditor
deducted by him or her from by the garnishee.
the judgment debtor’s
emoluments by deducting
such commission from the
amount payable to the
judgment creditor.
(b) A garnishee who-
(b) A garnishee who—
(i) who unreasonably fails to timeously deduct the
(i) unreasonably fails to emoluments attachment order, or
timeously deduct the amount
of the emoluments

46
 attachment order provided
for in subsection (4)(a); or
(ii) who unreasonably fails to stop the deductions
(ii) unreasonably fails to timeously when the judgement debt and costs have been
stop the deductions when the paid in full, must repay the judgement debtor
judgment debt and costs have any additional costs and interest which has
been paid in full, is liable to accumulated including any amount deducted
repay to the judgment debtor from the judgement debtor’s salary after the
any additional costs and judgement debt and costs have been paid in
interest which have accrued or full as a result of such failure.
any amount deducted from the
salary of the judgment debtor
after the judgment debt and
costs have been paid in full as
a result of such failure. (c) Note that Form 38, which is usually used for
emoluments attachment orders, has been
(c) The Rules Board for Courts of amended.
Law must make a reference to
The provisions of paragraph
(b) on Form 38 of Annexure 1
to the rules, containing the
emoluments attachment order.

Substitution of section 65M of Act 32 of 1944, as inserted by section 2 of Act 63 of

1976

47
10. The following section is hereby 10. Section 65M allows that where judgement are
substituted for section 65M of granted by the High Court or the Regional
the Magistrates’ Courts Act, Court, irrespective of the amount, the
1944: execution process in terms of section 65A(1),
may commence in the District court, provided
‘‘Enforcement of certain there is a CCJ attached accompanied by an
judgments of [Supreme] division of affidavit affirmation by the judgement creditor
High Court or court for regional or a certificate by the attorney specifying the
division 65M. amount still outstanding under the judgement
and how the amount is arrived at, Even though
If a judgment for the payment of the judgement would have exceeded the
any amount of money has been monetary jurisdiction of the District court the
given by a division of the judgement would be dealt with as a judgement
[Supreme] High Court of South of the Court, and shall have all the effects of a
Africa or a court for a regional judgement of the District Court and the
division, the judgment creditor proceedings will continue as if it was a
may file with the clerk of the court judgement of that court as per the affidavit or
from which the judgment creditor certificate, unless it is disputed by the
is required to issue a notice in judgement debtor with substantial proof
terms of section 65A(1), a certified thereof.
copy of such judgment and an
affidavit or affirmation by the
judgment creditor or a certificate
by his or her attorney specifying
the amount still owing under the
judgment and how such amount is
arrived at, and thereupon such
judgment, whether or not the
amount of such judgment would
otherwise have exceeded the
jurisdiction of the court, shall have
all the effects of a judgment of
such court and any proceedings
be taken thereon as if it were a

48
judgment lawfully given in such
court in favour of the judgment
creditor for the amount mentioned
in the affidavit or affirmation or the
certificate as still owing under
such judgment, subject however
to the right of the judgment debtor
to dispute the correctness of the
amount specified in the said
affidavit or affirmation or
certificate.’’

Amendment of section 73 of Act 32 of 1944, as amended by section 18 of Act 40 of

1952 and section 5 of Act 63 of 1976

11. ‘‘Suspension of execution of 11. Suspension of execution of debt

debt’’;

‘‘(1) The court may, [upon] on the
application of any judgment
debtor or under section
65E(1)(a) (ii) or 65E (1) (c)
and if it appears to the court
that the judgment debtor is
unable to satisfy the judgment
debt in full at once, but is able
to pay reasonable periodical
instalments towards
satisfaction thereof or if the
judgment debtor consents to
[an emoluments attachment
order or] a garnishee order
being made against him or
(1) If the judgement debtor applies or in any
section 65E (1)(a)(i) or section 65E (1)(c)
proceedings and it appears to the court that the
judgement debtor cannot pay of the debt in full
at once, but is able to pay the debt in
instalments or if the judgement debtor consents
to a garnishee order being made, the court may
suspend the execution thereof wholly or in part
on conditions regarding security that has to be
paid by the judgement debtor.

49
 her, suspend execution
against that debtor either
wholly or in part on such
conditions as to security
or otherwise as the court may
determine.’’.

Amendment of section 86 of Act 32 of 1944

12. Section 86 of the Magistrates’ 12. Section 86 is amended by adding a further

Courts Act, 1944, is hereby section.
amended by the addition of
the following subsection:

‘‘(5) If a party abandons a (5) If a party abandons a judgement given in his or

judgment given in his or her her favour because the judgement debt,
favour because the interest and costs has been paid in full, no
judgment debt, the interest judgement referred to in subsection (2) or (3)
thereon at the rate granted in shall be entered in favour of the other party.
the judgment and the costs
have been paid, no judgment
referred to in subsection (2) or
(3) shall be entered in favour
of the other party.’’.

Insertion of section 106C in Act 32 of 1944

13. The following section is hereby 13. A new section has been introduced to the
inserted in the Magistrates’ Magistrates Court Act. This section has
Courts Act, 1944, after greeted offences relating to judgements,
section 106B: ‘‘Offences emoluments attachment orders and instalment

50
 relating to judgments, orders
emoluments attachment
orders and instalment orders
106C.

(1) Any person who requires the (1) Any person who requires a consumer to consent
applicant to consent to a to a judgement or any instalment order or
judgment or any instalment emoluments attachment order before the
order or emoluments granting of a loan, is guilty of an offence an on
attachment order prior to conviction is liable to a fine or imprisonment not
the granting of the loan, is more than three years.
guilty of an offence and on
conviction liable to a fine or to
imprisonment not exceeding
three years.

(2) Any person who fraudulently (2) Any person who fraudulently obtains or issues a
obtains or issues a judgment, judgement or any instalment order or
or any instalment order or emoluments attachment order in terms of this
emoluments attachment order Act, is guilty of an offence an on conviction is
in terms of this Act, is guilty of liable to a fine or imprisonment not more than
an offence and on conviction three years.
liable to a fine or to
imprisonment not exceeding
three years.’’.
Transitional provisions

15.
(1) All legal proceedings in terms
of sections 36, 45, 57, 58, 65,
65E, 65J, 65M, 73 or 86 of the
Magistrates’ Courts Act, 1944
(Act No. 32 of 1944), which
were instituted prior to the
15
(1) All proceedings in terms of section 36, 45, 57,
48, 65, 65E, 65J, 65M, 73 or 86 of the
Magistrates Court Act which were instituted prior
to the commencement of this Act and were not
finalised, will be finalised as if the amendments
have not occurred, provided any order obtained

51
 commencement of this Act and in respect of a judgement, instalment order or
which are not concluded before emoluments attachment order was obtained and
the commencement of this Act, granted in accordance with the law.
must be continued and
concluded in all respects as if
this Act had not been passed:
Provided that, where
applicable, the original
judgment, instalment order or
emoluments attachment order,
upon which the proceedings in
question is based, was
obtained and granted in
accordance with the law.
(2)
(2) (a) Where a judgement, together with payment in
(a) A judgment creditor in instalments as well as an emoluments
whose favour a default attachment order has been granted in favour
judgment has been granted of a judgement creditor by way of a default
and a subsequent instalment judgement and the judgement debtor or any
order or emoluments other person affected by that default
attachment order (hereinafter judgement has reason to believe that the
referred to as a subsequent default judgement or subsequent orders were
order) made, based on that not obtained and granted in accordance with
default judgment, or a the law, mat apply for the review of the default
judgment debtor or any other judgement or any subsequent order.
person affected by that
default judgment or
subsequent order based on
that default judgment, who has
reason to believe that that
default judgment or
subsequent order was not
obtained and granted in

52
 accordance with the law, may
apply for the review of that
default judgment or
subsequent order.
(b) This section only applies to default judgements
(b) This subsection applies only to and subsequent orders in terms of the
default judgments and Magistrates Court Act, 1944.
subsequent orders in terms
of the Magistrates’ Courts Act,
1944.
(c) This review application –
(c) The application contemplated
in paragraph (a)—
(i) must be made in the prescribed form provided
(i) must be made on a form which in the Act;
corresponds substantially with
the form prescribed in the
Schedule to this Act; (ii) together with a supporting affidavit;

(ii) must be accompanied by a

supporting affidavit;
(iii) plus proof that the application was served at
(iii) must be accompanied by proof least 10 court days prior to the hearing of the
that the application has been intended application;
served on the other party, at
least 10 court days prior to the
hearing of the intended (iv) may be set down for hearing not less days
application; than 10 court days after service thereof; and
(iv) may be set down for hearing
on any day, being not less
than 10 court days’ after
service thereof; and (v) may be heard in chambers.

(v) may be heard by a magistrate

53
 in chambers. (d) When considering a review of the default
judgement or other subsequent orders, the
(d) The court must rescind a court must rescind such order if it is proved
default judgment or that the aforesaid orders were not obtained
subsequent order and granted in accordance with the law and
contemplated make any order it deems suitable under the
in paragraph (a), if it is proved circumstance.
that the default judgment or
subsequent order was not
obtained and granted in
accordance with the law or
may give any other order it
deems fit in the circumstances.
(e) No cost orders shall be made with regard to
the review application if the judgement debtor
(e) No cost order shall be made or any other affected person did not act
with regard to an application maliciously.
contemplated in paragraph (a):
Provided that the judgment
debtor or affected person who
applies for the review
contemplated in paragraph (a)
acted reasonably in bringing
the application. (f) The clerk of the court is duty-bound to assist
any person who intends to bring an application
(f) The clerk or registrar of the for the review of the default judgement
court must render reasonable provided the state or the clerk of the court
assistance to a party wishing to shall not be liable for any damage or loss
bring an application resulting from assistance given in good faith
contemplated in paragraph (a): by the clerk of the court when assisting in
Provided that the State or completing the application for review;
that clerk or registrar shall not
be liable for any damage or loss
resulting from assistance

54
 given in good faith by that clerk
or registrar to such party in the
compilation or preparation of
any process or document.
(g) The operation of this
subsection shall cease after a
period of three years after the
date on which this Act, or the
date on which the last
provisions of this Act, has
come into operation.
(g) The applications for review will terminate after
a period of three years after the date on which
this Act, or the dates on which the last
provisions of this Act, has come into operation.
Note all provisions of this Act was operational
from 01/08/2018. Therefore, applications for
review applications will cease on 01/08/2021.

(3) With regard to subsection (1), all matters will

be disposed of as if such provisions have not
(3) Despite the amendment of been amended. This means all matters issued
any provision of the prior to 01/08/2018 shall be finalised as if this
Magistrates’ Courts Act, 1944, amendment had not occurred.
by this Act, such provision, for
purposes of the disposal of
any legal proceedings referred
to in subsection (1), remains in
force as if such provision had
not been amended. (4) Any investigation or prosecution or other legal
proceedings where it may be construed that
(4) An investigation or the investigations would have constituted an
prosecution or other legal offence, must be completed as if section 106C
proceedings in respect of had not been passed in the Magistrates Court
conduct which would have Act.
constituted an offence
referred to in section 106C of
the Magistrates’ Courts Act,
1944, which was initiated
before the commencement of
this Act must be concluded,

55
 instituted and continued as if
this Act had not been passed.

Short title and commencement

16. 16
(1) This Act is called the Courts (1) This Act is called the Courts of Law
of Law Amendment Act, Amendment Act, 2017, and has come into
2017, and comes into operation on 01/08/2016.
operation on a date fixed by
the President by proclamation
in the Gazette.

(2) Different dates may be fixed (2) All the provisions of the Act has come into
in respect of different operation on 01/08/2018
provisions of this Act.

3. IMPACT OF AMENDMENT OF ACT 7 OF 2017 ON RULES See (Resource 42.1)

EXPLANATION
RULES AND

“45. Enquiry into financial Note: The changes made to the Rules are slight and
position of judgment does not need detailed explanation. The
debtor amended Rules are inserted here for
purposes of awareness when applying this
Act.

(1) A notice referred to in section 65A(1) of the Act calling upon a judgment debtor or, if
the judgment debtor is a juristic person, a director or officer of the juristic person as
the representative of the juristic person and, in his or her personal capacity, to
appear before the court in chambers shall be on a form corresponding substantially

56
 with Form 40 of Annexure 1 and shall indicate the date of the judgment or order, the
amount thereof, the balance of the capital, interest, costs and collection fees which
the defendant undertook to pay under section 57(1)(c) of the Act owing as at the
date of issue or reissue of such notice and be supported by an affidavit by the
judgment creditor or a certificate by his or her attorney stating-

(a) the date of the judgment or the date of the expiry of the period of suspension under
section 48(e) of the Act, as the case may be;

(b) that the judgment or order has remained unsatisfied for a period of 10 days from the
date on which it was given or became payable or from the expiry of the period of
suspension in terms of section 48(e) of the Act;

(c) in what respect the judgment debtor has failed to comply with the judgment or order
referred to in section 65A (1) of the Act, the amount in arrear and outstanding
balance on the date on which the notice is issued;

(d) that the judgment debtor has been advised by registered letter of the terms of the
judgment or of the expiry of the period of suspension under section 48(e) of the Act,
as the case may be, and that a period of 10 days has elapsed since the date on
which the said letter was posted;

(2) A notice referred to in sub-rule (1) shall state the consequences of failure to appear
in court on the date determined for the enquiry.

(3) Any alteration in a notice referred to in sub-rule (1) or in a warrant of arrest in terms
of section 65A (6) of the Act shall be initialled by the judgment creditor or his or her
attorney and by the clerk of the court before issue or reissue thereof.

(4) When a judgment or order referred to in section 65A (1) of the Act has been given
in any court other than the court of the district in which the enquiry is held, the clerk
of the court shall not issue the notice until there is lodged with him or her a copy of

57
 the judgment or order of such other court duly certified by the registrar or clerk of
that court.

(5) (a) When a judgment debtor has been arrested and is brought before a court which
is not the court which authorised the warrant of arrest, that clerk of the court
shall open a file, allocate a case number to it and hand it, together with the
warrant, to the court.

(b) When the court referred to in paragraph (a) transfers the matter in terms of
section 65A (11) of the Act to the court which authorised the warrant, the clerk
of the court shall without delay send the original warrant and certified copies of
the minutes of the proceedings and the order to that effect to the court which
authorized the warrant.

(c) If the court before which proceedings in terms of section 65A(10)(b) or (11) are
pending is not the court which authorised the warrant in terms of section 65A(6),
the clerk of the former court shall by telephone or in writing by facsimile notify
the clerk of the latter court of the appearance of the judgment debtor, director or
officer before the former court and shall inform the judgment creditor or his or
her attorney by telephone or in writing by facsimile accordingly: Provided that
full particulars of telephone calls and proof of transmission of facsimiles shall be
filed in the case cover.

(6) The provisions of rule 55 shall apply with appropriate changes, to a request referred
to in section 65A (3) of the Act.

(7) A written offer referred to in section 65 of the Act shall be on affidavit setting out the
following particulars pertaining to the judgment debtor—

(a) the full names of the judgment debtor, his or her identity number or passport
number, residential and business address;

(b) the name and address of his or her employer and his or her employee number;

58
 (c) his or her marital status;

(d) the number of his or her dependants, their age and their relationship to him or
her;
(e) his or her assets and liabilities, substantiated where reasonably possible with
the most recent proof thereof and attached as annexures;

(f) his or her gross weekly or monthly income (including that of his or her spouse
and dependants) and expenses substantiated by the most recent proof in the
possession of the debtor relating to his or her income and expenditure;

(g) the details of agreements with other creditors for payment of a debt in
instalments, and of emoluments attachment orders or other court orders against
him or her and the total amount payable thereunder, substantiated by copies
thereof and attached as annexures; and

(h) his or her offer and the dates of the proposed instalments.

(8) A warrant in terms of section 65A (6) of the Act shall correspond substantially
with Form 40A of Annexure 1.

(9) A notice in terms of section 65A(8)(b) of the Act shall correspond substantially
with Form 40B of Annexure 1.”

Substitution of rule 46 of the Rules See (Resource 42.3)

3. The following rule is hereby substituted for rule 46 of the Rules:

“46. Attachment of emoluments by Emoluments attachment order

(1) When an emoluments attachment order has been authorised by the court, an
application to issue that order must be made on a form corresponding substantially

59
 with Form 38A of Annexure 1.

(2) An emoluments attachment order shall be issued on a form corresponding

substantially with Form 38 of Annexure 1, and shall contain sufficient information to
enable the garnishee to identify the judgment debtor, including the date of birth,
identity number or passport number and employee number of the judgment debtor.”

Substitution of rule 49 of the Rules See (Resource 42.3)

4. The following rule is hereby substituted for rule 49 of the Rules:

“49. Rescission and variation of Judgments

(1) A party to proceedings in which a default judgment has been given, or any person
affected by such judgment, may within 20 days after obtaining knowledge of the
judgment serve and file an application to court, on notice to all parties to the
proceedings, for a rescission or variation of the judgment and the court may, upon
good cause shown, or if it is satisfied that there is good reason to do so, rescind or
vary the default judgment on such terms as it deems fit: Provided that the 20 days’
period shall not be applicable to a request for rescission or variation of judgment
brought in terms of sub-rule (5) or (5A).

(2) It will be presumed that the applicant had knowledge of the default judgment 10 days
after the date on which it was granted, unless the applicant proves otherwise.

(3) Where an application for rescission of a default judgment is made by a defendant

against whom the judgment was granted, who wishes to defend the proceedings, the
application must be supported by an affidavit setting out the reasons for the
defendant’s absence or default and the grounds of the defendant’s defence to the
claim.

(4) Where an application for rescission of a default judgment is made by a defendant

60
 against whom the judgment was granted, who does not wish to defend the
proceedings, the applicant must satisfy the court that he or she was not in willful
default and that the judgment was satisfied, or arrangements were made to satisfy the
judgment, within a reasonable time after it came to his or her knowledge.

(5)(a) Where a plaintiff in whose favour a default judgment was granted has consented
in writing that the judgment be rescinded or varied, either the plaintiff or the
defendant against whom the judgment was granted, or any other person affected
by such judgment, may, by notice to all parties to the proceedings, apply to the
court for the rescission or variation of the default judgment, which application shall
be accompanied by written proof of the plaintiff’s consent to the rescission or
variation.

(b) An application referred to in paragraph (a) may be made at any time after the
plaintiff has consented in writing to the rescission or variation of the judgment.

(5A) (a) Where a judgment debt, the interest thereon at the rate granted in the judgment
and the costs have been paid in full, a court may, on application by the
judgment debtor or any other person affected by the judgment, rescind that
judgment.

(b)The application contemplated in paragraph (a)—

(i) must be made on a form corresponding substantially with Form 5C of Annexure
1;
(ii) must be accompanied by an affidavit with annexures providing reasonable proof
that the judgment debt, the interest and the costs have been paid; and
(iii) must be served on the judgment creditor not less than 10 days prior to
the hearing of the application.

(6) Where an application for rescission or variation of a default judgment is made by

any person other than an applicant referred to in sub-rule (3),(4) or (5), the
application must be supported by an affidavit setting out the reasons why the
applicant seeks rescission or variation of the judgment.

61
(7) All applications for rescission or variation of judgment other than a default judgment
must be brought on notice toll parties, supported by an affidavit setting out the
grounds on which the applicant seeks the rescission or variation, and the court may
rescind or vary such judgment if it is satisfied that there is good reason to do so.

(8) Where the rescission or variation of a judgment is sought on the ground that it is
void from the beginning, or was obtained by fraud or mistake, the application must
be served and filed within one year after the applicant first had knowledge of such
voidness, fraud or mistake.

(9) A magistrate who of his or her own accord corrects errors in a judgment in terms of
section 36(1)(c) of the Act shall, in writing, advise the parties of the correction.”

Amendment of Rule 55 of the Rules See (Resource 42.3)

5. Rule 55 of the Rules is hereby amended by—

(a) the substitution for paragraph (a) of subrule (1) of the following paragraph:

“(a) Every application must be brought on notice of motion supported by an affidavit

as to the facts upon which the applicant relies for relief.”;

(b) the substitution for paragraph (c) of subrule (1) of the following paragraph:

“(c) Where it is necessary or proper to give any person notice of an application, the
notice
of motion must also be addressed to and served on such person.”;

(c) the substitution for paragraph (d) of subrule (1) of the following paragraph:

(d) (i) The notice of motion in every application other than interlocutory and other
applications incidental to pending proceedings or one brought ex parte must
correspond substantially with Form 1A of Annexure 1. See (Resource 42.2)

62
 (ii) Copies of the notice and all annexures thereto must be served upon every party
to whom notice is to be given.”; and (d) the substitution for paragraph (a) of
subrule (4) of the following paragraph:

(4)
(a)(i) Interlocutory and other applications incidental to pending proceedings
must be brought on notice corresponding substantially with Form 1C of Annexure 1
See (Resource 42.2), indicating a date assigned by a registrar or clerk of the court
or as directed by a magistrate before whom the matter is to be heard.

(ii) The notice must be supported by affidavits if facts need to be placed

before the court.

(iii) Copies of the notice and all annexures thereto must be served upon
every party to whom notice is to be given.”.

Amendment of Annexure 1 to the Rules

6. Annexure 1 to the Rules is hereby amended—

(a) by the insertion after Form 1B of Form 1C See contained in the Annexure hereto;
(b) by the substitution for Form 5A of Form 5A contained in the Annexure hereto;
(c) by the substitution for Form 5B of Form 5B contained in the Annexure hereto;
(d) by the insertion after Form 5B of Form 5C contained in the Annexure hereto;
(e) by the substitution for Form 38 of Form 38 contained in the Annexure hereto; and
(f) by the insertion after Form 38 of Form 38A contained in the Annexure hereto.

Commencement

7. These rules come into operation on 1 August 2018.

63
AMENDED
FORMS

4. Amended Forms

4.1 With the inauguration of Act 7 of 2017, there has been an amendment of a number of
forms that are used for debt Collection. The purpose of the changes in these forms are to
align itself to the changes brought about by the Act. Changes have been brought about in
the Forms listed in the table below.

Amended Forms Form No.

1 Section 57: Admission of Liability See (Resource 42.4) 5A

.

64
 2 Section 58: Consent to Judgement See (Resource 42.4) 5B
.

3 Notice of Motion Short Form See (Resource 42.10) 1C

.

4 Section 38: Emoluments attachment orders See (Resource 38

. 42.11)

5 Section 38A Notice of intention to issue emoluments attachment 38A

. orders See (Resource 42.12)

6 Review of Default Judgement See (Resource 42.13) New Form

.

QUALITY ASSURANCE
The purpose of this section is to conscientise Magistrates about what Quality Assurance
ASSURANCE

inspection will be looking for when doing Quality Assurance.

QUALITY

DEFAULT JUDGMENTS

1. The plaintiff shall furnish to the court evidence either oral or by affidavit of the nature
and extent of the claim (Rule 12(4))

65
Magistrate Case number Date of judgment

2. If the action be on a liquid document the plaintiff shall before judgment file of record -

● the original of such document, or

● an affidavit setting out reasons to the satisfaction of the court why such original
cannot or should not be filed (Rule 12(6))

Magistrate Case number Date of judgment

3. The court shall thereupon assess the amount recoverable by the plaintiff and shall give
an appropriate judgment (Rule 12(4))

Magistrate Case number Date of judgment

4. The court shall thereupon make such order or give such judgment as it may deem fit
(Rule 12(4))

Magistrate Case number Date of judgment

5. Default judgment – amounts already paid deducted?

Magistrate Case number Date of judgment

6. Is the summons in the prescribed form?

 Shall in all respects conform to the specimens (Rule 1(2)(a))

 On standard paper A4 (Rule 1(2)(b))

66
  In printed form (Rule 5(3))
Magistrate Case number Date of judgment

7. Has the summons been correctly issued?

 Signed by the clerk of the court? (Rule4(1)(a))

 Date of issue refected on summons? (Rule 5(2))
 Case number on summons (Rule 3(1))
Magistrate Case number Date of judgment

Magistrate Case number Date served Date of judgment

9. Does the name and physical address of the attorney or plaintiff appear on the
summons (Rule 6(2)(b))

Magistrate Case number Date of judgment

10. Is the physical address within the prescribed distance (not more than 15 km) from the
court (Rule 6(2)(c))

Magistrate Case number Date of judgment

11. Appearance to defend entered – defendant may, at the request of the plaintiff, deliver a
consent, in writing, to an address being furnished further than 15 km – plaintiff shall

67
 deliver address where he will accept service (Rule 6(2)(cB))

Magistrate Case number Date of judgment

12. Address given for service shall not be that of the clerk of the court or the sheriff,
unless in the case of the State Attorney (Rule 6(2)(d))

Magistrate Case number Date of judgment

13. Does the postal address of the attorney or plaintiff appear on the summons? (Rule 6(2)
(a))

Magistrate Case number Date of judgment

14. Does the signature of the attorney or plaintiff appear on the summons? (Rule 6(2)(a))

Magistrate Case number Date of judgment

15. Does the name of the Magistrate’s district correspond with the place of the issue of the
summons? If not, then judgment cannot be granted untill the error is amended either in
terms of (Rule 7 or Rule 55(A))

Magistrate Case number Place summons issued Date of judgment

16. Is the matter within the area of jurisdiction of the court? (Section 26) and in respect of
persons (Section 28) and in respect of causes of action (Section 29)

Magistrate Case number Date of judgment

68
17. Is judgment requested at the correct court? (Control purposes – where name of seat o
court differs from name of magisterial district)

Magistrate Case number Name of seat Date of judgment

18. Is the defendant described as required by the rules?

Summons shall show:-

 surname of the defendant

 defendant’s sex, and
 residence or place of business, and where known,
 his first name or initials,
 his occupation and in the case of
 a woman, her marital status, and
 if the defendant is sued in a representative capacity, the capacity in which he is
sued
(Rule 6(5)(a))

Magistrate Case number Date of judgment

19. Does the court have jurisdiction in respect of the cause of action? (Section 29(1) r/w
section 46)

Magistrate Case number Date of judgment

20. Was the correct number of days in which to enter an appearance to defend granted to
the defendant? (Or no dies inducia) (Rules 5 and 12(1)(a))

 10 days – subject to section 59 (Rule 5(1))

 20 days – actions against the State
Magistrate Case number Number of days granted Date of judgment

69
21. Have the dies inducia expired? (Rule 13(3))

Magistrate Case number Date notice of Date of judgment

appearance filed

22. Is the Appearance to Defend in the correct format?

 signed by defendant
 full address where defendant will accept service of process
 address not more than 8 km
 if more than 8 km – consent by plaintiff in writing
 address not clerk of court or sheriff unless State Attorney
(Rule 13(4))

Magistrate Case number Date of judgment

23. Appearance to defend defective – default judgment may not be granted unless plaintiff
has delivered a written notice to defendant calling upon him to deliver a new notice of
appearance within 5 days of the receipt of notice (Rule 12(2)(a))

Magistrate Case number Date of judgment

24. Is the plaintiff entitled to the interest that has been claimed?

● particulars of claim shall show the rate at which the interest is calculated (Rule 6(3)
(a)(ii))

● if no agreement or no other law – section 1 of Prescribed Rate of Interest Act No. 55 of

1975 applicable (15.5% with effect from 01.10.93 – GN R1814 GG 15143)

Magistrate Case number Interest Correct interest Date of judgment

25. Are the costs claimed correct? (Annexure 2 Table A)

70
Magistrate Case number Date of judgment

71
26. Have any amendments to the summons been correctly executed?

● before service – initialled by clerk of the court (Rule 7(2))

● after service – Rule 55A application

Magistrate Case number Date of judgment

27. Has the summons been correctly served? (Rule 9)

Magistrate Case number Date of judgment Date served Particulars of service

28. Has the defendant consented to judgment? Judgment must be granted by the clerk of the
court and not the magistrate (Section 58)

Magistrate Case number Date of judgment

29. Has the defendant made an offer to pay, in instalments, the amount claimed in the
summons? (unliquidated claim)

Judgment must be granted by the clerk of the court and not the magistrate (Section 57)

Magistrate Case number Date of judgment

30. Is the notice in the summons in line with the amendments provided for in GN R910 of
1998? (paragraph (v) to be included in summons) (Coetzee v Government of the Republic of
South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others
1995 (4) SA 631 (CC)

Magistrate Case number Date of judgment

72
 MICRO LENDING

66. (a) Does the money lending transaction comply with the exemptions promulgated
in Government Notice No. 1406 of 8 August 2005 (previously Government Notice
No. 713 of 1 June 1999)

Magistrate Case number Date

(b) Plea facts in particulars of claim – state every fact necessary with reference to
the Exemption Notice to make out a proper cause of action that the money
agreement is exempted (Credit Corp. v Swart 1959(1) SA 550 (I) & Botha v Potch
Motors (Edms) Bpk 1963(1) SA 279(A) at p 238 F section 284)

Magistrate Case number Date

National Credit Act, No. 34 of 2005

67. (a) Magistrate is only empowered to make one or more of the orders ito section
87(1)(a) and (b) and cannot make an order as to the reduction of the interest rate
(Section 86 and SA Taxi Securitization (Pty) Ltd v Lennard [2011] JOL 27185 (ECG)

Magistrate Case number Date

CHECKLIST NUMBER 1
NOTE
CHECKLIST

CHECKLIST IN TERMS OF SECTION 58

73
1 Check if claim is for liquidated debt or not – original written underlying
agreement is required ;
2 Check the content of letter of demand and SERVICE and ascertain whether :
 If served by registered post – original proof of posting required including track
and trace report;
 If served personally on judgment debtor – signature acknowledging receipt of
admission of liability and or underlying agreement is required;
 If delivered by e-mail of fax as agreed between the parties in terms of rule 2(1)
proof thereof together with an affidavit of service is required;
3 Ascertain the court’s jurisdiction established from judgment debtors’ address or
underlying agreement – not where admission of liability was signed.
4 Ensure letter of demand received before signing the consent to judgment
5 Check there is sufficient information for debtor to identify creditor, cause of
action and amount claimed – compliance of Rule 4(1)
6 Check sufficient information if debt was ceded – date and manner in writing of
cession Rule 6(12);
7 Check whether debtor consents to judgment and offers to pay in instalments
8 Ensure when creditor requests judgment the following documents are
attached:-
Form 5B accompanied by the following documents
8 Copy of letter of demand if no summons was issued
9 Original of the judgment debtors’ consent to judgment signed by the debtor
and by two witnesses whose names shall be stated in full and whose
addresses and telephone numbers shall also be recorded rule 4(1)
10 An affidavit containing such evidence as is necessary to establish that all
requirements in law have been complied with in terms of rule 4(2) & 12(6A).
13 Judgment creditor must attach credit worthy certificate and any other
documents that the court requires, at the time that the loan was given and at
the time that the default judgement is to be considered, in order for the court to
exercise judicial discretion in the interest of justice.
14 Ensure a finding is made in respect of reckless credit, over indebtedness and
assessment of affordability.
15 Check whether the file cover has the case number on it.

74
16 Check whether the parties are correctly reflected on the file cover.
17 Check whether the classification of the cause of action has been specified?
18 Check whether the file is correctly referred to the Magistrate in terms of Rule
12(5) or Rule 12 (7).
19 Check whether the clerk of court has stamped the court file with the default
judgement stamp.
20 Check whether the clerk of court has reflected whether the defendant is a
juristic or a natural person?
21 Check that the case numbers are the same as the RDJ and summons;
22 Check that the parties are cited as in the RDJ and summons;
23 Check that the address were the documents were served is the same as that
reflected in the summons or particulars of claim;
24 Check that service had been served as reflected in terms of Rule 9 of MCR;
25 Check that the sheriff had signed the sheriffs return of service.
26 If you are dissatisfied with anything on the sheriffs return of service you must
query it with plaintiff or plaintiff’s attorney
27 Check whether a COMBINED SUMMONS is used as opposed to a SIMPLE
SUMMONS because every summons must contain comprehensive
particulars of claim in respect of compliance with certain sections Rule 5(7).
29 Ensure that the following averments are reflected in the statement of material
facts and check that:-
30 The NCA applies to the agreement concerned and note the date when the
agreement was entered into in order to ascertain whether the agreement
prescribed or not.
31 The credit provider (usually Banks and Micro lenders) are registered in terms
of section 40 of NCA and that the annual registration fees are paid in terms
of section 51(1)(c); proof of registration and payment of fees must be attached
to the application for default judgement which must be a certified copy of the
original not a copy of a copy;
32 The court has jurisdiction which is where the consumer caries on business, is
employed in your district or an averment that the goods are kept within the
court’s jurisdiction.

75
 NOTE, the whole cause of action in terms of section 28 (1) (d) of the
Magistrates Court Act is not applicable to credit agreements governed by the
NCA. Section 90 (2) (k) (vi) (bb) provides that a provision to such effect in a
credit agreement will be an unlawful agreement;
33 The section 129 (1) notice was a notice to the consumer to bring the arrears up
to date and did not include any threats or demands as at this stage there is
nothing to be demanded until the consumer has either rejected the proposal or
the period of 10 days has expired since the Section 129 notice was dispensed.
Ensure the rejection is in writing; how the Section 129 notice was served. If
service is effected by registered mail, ensure that a track and trace report is
attached to show that the section 129 notice had reached the correct post
office where the consumer resides, carries on business, employed or where
the goods are kept. Where there is consent to serve by alternative ways in
terms of section 65 of NCA, - by fax, face- book, internet or any other social
media preferred by the consumer that such consent is attached – Sebola v.
Standard Bank of South Africa Ltd 2012 (5) Sa 142 (CC); See (Resource
42.14) Kubyana v Standard Bank of South Africa Ltd (CCT 65/13) [2014]
ZACC 1; 2014 (3) SA 56 (CC) 2014; See (Resource 42.15)
34 The section 130 required time of 20 days had been complied with prior to the
issue of summons. Note the section 129 and section 130 notice can be in the
same document;
35 That the plaintiff has attached the pre – agreement and quotation in terms of
section 92 of NCA and that it complies with Form 20 of the Regulations to NCA
if the agreement is a small, intermediate or large agreement;
36 Check whether the plaintiff attached the original or a copy of the credit
agreement or the relevant part of the agreement that plaintiff is relying on for
his cause of action in terms of section 93 of NCA.
37 Ensure that the pre- agreement and quotation is a pre- requisite of the
agreement. It does not matter if the documents are signed on the same date,
but the consumer should be given an opportunity to consider the former.
38 Ascertain whether the agreements are grouped as small, intermediate or large
credit agreement section 8 NCA;
39 Ensure the agreement was signed by both parties. Study the agreement and
ensure that the interest complies with the maximum permissible amounts as

76
 set out in section 103(5) and with section 101(b-g) read with regulations 42.
40 Enquire as to how the sum claimed as capital is arrived at, ascertain whether
any part thereof is interest. Ensure no interest is added on interest. Consider
the in duplum and ultra in duplum rules
41 Check as to whether the capital amount on the summons does not exceed the
total amount in the agreement, if it exceeds then query it;
42 Ensure that the interest rate claimed on the summons is the same as in the
agreement;
43 Ensure that the particulars of claim have a complete breakdown of the principal
debt, all costs, number of instalments and instalment amount.
44 Check that each process that is attached has the case number affixed to it.
45 If the summons was amended after service does it comply with Rule 55A?
46 Note If the amount for which judgment is requested, or the percentage of
interest requested, is lower than that prayed for in the summons, judgment
may only be granted for the lower amount or percentage, as the case may be

PRECEDENT AND RECORD OF PROCEEDINGS FOR SECTION 58 APPLICATION

INSTRUCTIONS
1 You are requested to kindly double click the icon in order to enable you to open
the document..
TOPIC PRECEDENT

77
 PRECEDENT
S
1. Section 58 Application

2. Record of Proceedings

RESOURCES

NO. RESOURCE RESOURCE

RESOURCE

NUMBER
1 Resource 42.1
S

78
2 Resource 42.2

3 Resource 42.3

4 Resource 42.4

5 Resource 42.5

6 Resource 42.6

7 Resource 42.7

8 Resource 42.8

9 Resource 42.9

10 Resource 42.10

11 Resource 41.11

12 Resource 42.12

13 Resource 42.13

14 Resource 42.14

79
15 Resource 42.15

BIBLIOGRAPHY
1 Constitution of the Republic of South Africa, Act No. 108 of 1996

2 Magistrates Act 90 of 1993 , Regulation 54(A)

80
 3 The Magistrates Court Act 32 of 1944,

4 Superior Courts Act, Act 10 of 2013.

BIBLIOGRAPHY

5 The Magistrates Court Rules

6 Van Loggerenberg, Jones and Buckle : The Civil Practice of the Magistrates
Court in South Africa Volume I, tenth edition, Service 11, 2016

7 Van Loggerenberg, Jones and Buckle : The Civil Practice of the Magistrates
Court in South Africa Volume ll, tenth edition, Service 11, 2016

8 Interpretation Act, 33 of 1957

9 Legal Practices Act 28 of 2014

10 Electronic Communications and Transactions Act 25 of 2002

11 National Credit Act, No. 34 of 2005

12 The Courts of Law Amendment Act 7 of 2017

13 AMLERS Precedents of Pleadings - 8th Edition, Harms

14 Civil Procedure in the SC by Erasmus

Own Notes
NOTES
OWN

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82