MODULE 10 NOTE 1

EXECUTION PROCEDURE

Topic: Section 65A Proceedings

 CONTENT FOR THIS MODULE AND NOTE

This Module and Note contains the following documents in order of appearance
CO

EN
NT

1 Relevant Resources

2 Circulars from Commission, arranged from most recent to earliest

4 Section 65 from MCA

5 Discussion of Guidance Note on subject matter

6 Checklists

7 Precedents and Suggested Record of Proceedings

8 Resources referred to in this note

9 Bibliography

10 Own Note for making notes

1
 RELEVANT RESOURCES

RELEVANT LINKS TO RELEVANT EXPLAINATION

RESOURCES LEGISLATION WHERE
APPLICABLE
RELE
VANT

1 Act 1.1 The Magistrates Court Act 32 1.1 Section 61

OUR
RES

CES

of 1944,
Section 65

2 Rules 2.1 The Magistrates Court Rules, 2.1 Rule 46

3 Forms 3.1 Form 38 of Annexure 1

4 National 4.1 Van Loggerenberg, Jones 4.1 Section 65

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

Van Loggerenberg, Jones and

4.2 4.2 Rule 46
Buckle: The Civil
Practice of the Magistrates
Court in South Africa Volume
ll, tenth edition, Service 11,
2016: Rules,

2
 CIRCULAR 17 OF 2018

Kindly double click to open document

1. Circular 17 of 2018
CUL
CIR

circular 17-2018 amendment of rules.pdf

AR
S

2. Circular 17 of 2018

Circular 17-2018 - annexure.pdf

ACT

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

of 1976, in terms of Act 7 of 2017
AC
T

‘‘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
a written offer to the judgment creditor to pay the judgment debt in specified
instalments or otherwise and such offer is accepted by the judgment creditor or his or
her attorney, the court 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.

(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.

(3) The court—

(a) may request any relevant information from the plaintiff or this 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

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 appropriate, authorise an emolument attachment order 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)

65A Notice to judgment debtor if judgment remains unsatisfied

(1) (a) If a court has given judgment for the payment of a sum of money or has
ordered the payment in specified instalments or otherwise of such an amount, and such
judgment or order has remained unsatisfied for a period of 10 days from the date on
which it was given or on which such an amount became payable or from the expiry of
the period of suspension ordered in terms of section 48 (e), as the case may be, the
judgment creditor may issue, from the court of the district in which the judgment debtor
resides, carries on business or is employed, or if the judgment debtor is a juristic
person, from the court of the district in which the registered office or main place of
business of the juristic person is situate, a notice calling upon the judgment debtor or, if
the judgment debtor is a juristic person, a director or officer of the juristic person as
representative of the juristic person and in his or her personal capacity, to appear before
the court in chambers on a date specified in such notice in order to enable the court to
inquire into the financial position of the judgment debtor and to make such order as the
court may deem just and equitable.

(b) A notice referred to in paragraph (a) shall be drawn up by the judgment

creditor or his or her attorney, signed by the judgment creditor or his or her attorney
and the clerk of the court, and served by the sheriff, or by the attorney of the judgment
creditor or any candidate attorney in his or her employ, on the judgment debtor or, if
the judgment debtor is a juristic person, on the director or officer summonsed as the
representative of the juristic person and in his or her personal capacity, in the manner
prescribed by the rules for the service of process in general and at least ten days before
the date fixed in the notice for the appearance before the court.

(c) The fees and charges in respect of a notice served by any attorney or candidate
attorney shall be determined in accordance with the tariffs prescribed by the rules for
the service of process by a sheriff: Provided that no such fees and charges shall be
payable unless personal service of the notice has been effected.
[Sub-s. (1) substituted by s. 3 (a) of Act 81 of 1997.]

(2) If the minutes of the proceedings do not show that the judgment debtor was
present in person or represented by any person when judgment was given and if no
warrant of execution pursuant to the judgment has been served on the judgment debtor
personally, no notice under subsection (1) shall be issued unless the judgment creditor
or his or her attorney provides proof to the satisfaction of the clerk of the court that he
or she has advised the judgment debtor by registered letter of the terms of the
judgment or of the expiry of the suspension ordered under section 48 (e), as the case
may be, and a period of 10 days has elapsed since the date on which the said letter was
posted.
[Sub-s. (2) substituted by s. 3 (b) of Act 81 of 1997.]

(3) The court may, at any stage of the proceedings, if a director or officer mentioned
in subsection (1) ceases to be a director or officer of the juristic person concerned or
absconds, at the request of the judgment creditor, from time to time replace such
director or officer by any other person who at the time of such replacement may be a
director or officer of the juristic person, and the proceedings shall then continue as if
there has been no replacement.

(4) If the court has given judgment for the payment of an amount of money in
instalments, no notice under subsection (1) shall be issued unless the judgment creditor
has delivered an affidavit or affirmation or his or her attorney has delivered a certificate
to the clerk of the court in which is mentioned the outstanding balance of the judgment
debt, in what respects the judgment debtor has failed to comply with the court order, to

4
 what extent he or she is in arrear with the payment of the instalments and that the
judgment debtor was advised by registered letter of the terms of the judgment.
[Sub-s. (4) substituted by s. 3 (c) of Act 81 of 1997.]

(5) If a judgment debtor fails to satisfy an order to pay the judgment debt in
instalments or otherwise, or if an emoluments attachment order has not been satisfied,
a judgment creditor may issue anew a notice in accordance with subsection (1).
[Sub-s. (5) added by s. 3 (d) of Act 81 of 1997.]

(6) If the court is satisfied on the ground of sufficient proof or otherwise-

(a) that the judgment debtor, director or officer concerned has knowledge of a
notice referred to in subsection (1) and that he or she has failed to appear before
the court and on the date and at the time specified in the notice;
(b) that the judgment debtor, director or officer concerned, in the case where
the relevant proceedings were postponed in his or her presence to a date and
time determined by the court, has failed to appear before the court on that
date and at that time; or
(c) that the judgment debtor, director or officer concerned has failed to remain
in attendance at the relevant proceedings or at the proceedings as so
postponed, the court may, at the request of the judgment creditor or his or her attorney, authorise the
issue of a warrant directing a sheriff to arrest the said judgment debtor, director or officer and to
bring him or her before a competent court at the earliest possible
opportunity in order to enable that court to conduct an inquiry referred to in subsection
(1). [Sub-s. (6) added by s. 3 (d) of Act 81 of 1997.]

(7) A warrant authorised under subsection (6) shall be prepared by the judgment
creditor or his or her attorney, signed by the judgment creditor or his or her attorney
and the clerk of the court, and executed by the sheriff.
[Sub-s. (7) added by s. 3 (d) of Act 81 of 1997.]

(8) (a) Any person arrested under a warrant referred to in subsection (6) shall, in
accordance with section 35 (1) (d) of the Constitution of the Republic of South Africa,
1996 (Act 108 of 1996), be brought as soon as reasonably possible before the court
within the district of which that person was arrested: Provided that any such person, if it
is not possible to bring him or her before the court concerned, may be detained at any
police station pending his or her appearance before that court.
(b) In lieu of arresting a person contemplated in paragraph (a), the sheriff may, if
the judgment creditor or his or her attorney consents thereto, hand to that person a
notice in writing which-
(i) specifies the name, the residential address and the occupation or status of
that person;
(ii) calls upon that person to appear before the court and on the date and at the
time specified in the notice; and
(iii) contains a certificate signed by the sheriff to the effect that he or she has
handed the original of the notice to that person and that he or she has
explained to that person the import thereof.
(c) The sheriff shall forthwith forward a duplicate original of the notice to the clerk
of the court concerned, and the mere production in the court of such a duplicate original
shall be prima facie proof that the original thereof was handed to the person specified
therein.
(d) The provisions of subsection (6) shall mutatis mutandis apply in respect of a
notice referred to in paragraph (b).
[Sub-s. (8) added by s. 3 (d) of Act 81 of 1997.]

(9) Any person who-

(a) is called upon to appear before a court under a notice referred to in
subsection (1) or (8) (b) and who willfully fails to appear before the court and
on the date and at the time specified in the notice;
(b) in the case where the relevant proceedings were postponed in his or her
presence to a date and time determined by a court, willfully fails to appear
before the court on that date and at that time;

5
 (c) willfully fails to remain in attendance at the relevant proceedings or at the
proceedings as so postponed,
shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a
period not exceeding three months.
[Sub-s. (9) added by s. 3 (d) of Act 81 of 1997]

(10) (a) Notwithstanding anything to the contrary contained in this Act-

(i) the court which authorised the issue of a warrant referred to in subsection (6) and the
court contemplated in subsection (8) (a), if the latter court is not the court which
authorised the issue of the warrant concerned, shall have jurisdiction to inquire in a
summary manner into the commission of an offence referred to in subsection (9), and
upon proof beyond reasonable doubt that the person concerned is guilty of such an
offence, to so convict him or her and to impose on him or her any penalty provided for
in the said subsection (9);

(ii) the court contemplated in subsection (8) (a), if the court is not the court which
authorised the issue of the warrant concerned, shall have jurisdiction to conduct an
inquiry referred to in subsection (1) and to perform such other acts as the court which
authorised the issue of the warrant concerned could lawfully have performed.

(b) On the appearance before the court of the judgment debtor, director or officer concerned in
pursuance of either his or her arrest under a warrant referred to in subsection (6) or the delivery to
him or her of a notice referred to in subsection (8) (b), the court shall inform him or her-
(i) that the court intends to inquire in a summary manner into his or her alleged willful failure
to appear before the court and on the date and at the time specified in a notice referred
to in subsection (1) or (8) (b), or to appear, in the case where the relevant proceedings
were postponed in his or her presence to a date and time determined by any court,
before that court on that date and at that time, or to remain in attendance at the relevant
proceedings or at the proceedings as so postponed, as the case may be;
(ii) that the court, if the court so convicts him or her, may impose on him or her any penalty
provided for in subsection (9); and
(iii) that he or she has the right to choose, and be represented by, a legal practitioner.

(c) A court before which proceedings under paragraph (b) are pending-
(i) shall have due regard to the following rights, namely-
(aa) the right of an accused person to be presumed innocent, to remain silent and not to
testify;
(bb) the right of an accused person to adduce and to challenge evidence; and
(cc) the right of an accused person not to be compelled to give self-incriminating evidence;

(ii) may adjourn such proceedings to any date on such conditions not inconsistent with a provision of
the Criminal Procedure Act, 1977 (Act 51 of 1977), and as the court may think fit;
(iii) if the court is of the opinion that it is in the interests of the administration of justice, may at
any time before the judgment debtor, director or officer concerned is acquitted or
convicted of an offence referred to in subsection (9) suspend such proceedings and refer
the matter to the public prosecutor concerned to take a decision on the prosecution of the
said judgment debtor, director or officer for such an offence. [Sub-s. (10) added by s. 3 (d) of Act
81 of 1997.]

(11) After the court has dealt with the inquiry referred to in subsection (10) (b), the
Court shall proceed to the inquiry referred to in subsection (1) and deal with the matter
in accordance with the other sections of this Chapter: Provided that the court-
(a) if the court is not the court which authorised the issue of the warrant concerned; and
(b) if the court is of the opinion that it is in the interests of the administration of justice,
may transfer the matter to the court which authorised the issue of that warrant.
[Sub-s. (11) added by s. 3 (d) of Act 81 of 1997.]

(12) (a) If the court before which proceedings under subsections (10) (b) and (11)
are pending is not the court which authorised the issue of the warrant concerned, the
clerk of the former court shall without any delay notify the clerk of the latter court of the
appearance of the judgment debtor, director or officer concerned before the former

6
 court, and shall inform the judgment creditor or his or her attorney accordingly.
(b) The clerk of the court which authorised the issue of the warrant concerned shall
without any delay furnish the court before which proceedings under subsections (10) (b)
and (11) are pending with such records or documents relating to such proceedings as
the latter court may direct.
[Sub-s. (12) added by s. 3 (d) of Act 81 of 1997.] [S. 65A inserted by s. 2 of Act 63 of 1976.]

65B ......
[S. 65B inserted by s. 2 of Act 63 of 1976 and repealed by s. 4 of Act 81 of 1997.]

65C Joinder of proceedings

If, under section 65A (1), two or more notices have been served on any judgment debtor or director or
officer to appear on the same day as provided in that section, the proceedings in terms of such
notices may be heard concurrently.
[S. 65C inserted by s. 2 of Act 63 of 1976 and substituted by s. 5 of Act 81 of 1997]

65D Determination of judgment debtor's financial position

(1) On the appearance before the court of the judgment debtor or, if the judgment
debtor is a juristic person, the director or officer of the juristic person summonsed as the
representative of the juristic person or in his or her personal capacity, on the return day
of the notice referred to in section 65A (1) or (8) (b), in pursuance of his or her arrest
under a warrant referred to in section 65A (6), or on any date to which the proceedings
have been postponed, the court in chambers shall, subject to the provisions of
subsection (2) of this section, call upon him or her to give evidence under oath or
affirmation on his or her financial position or the financial position of the juristic person,
as the case may be, and the court shall permit the examination or cross-examination of
the judgment debtor or the said director or officer on all matters relevant to the
judgment debtor's financial position and his or her ability to pay the judgment debt, and
the court shall receive such further evidence as may be adduced either orally or by
affidavit or in such other manner as the court may deem just, by or on behalf of either
the judgment debtor or the judgment creditor, as is material to the determination of the
judgment debtor's financial position and his or her ability to pay the judgment debt, and
for the purposes of such evidence witnesses may be summoned in the manner
prescribed in the rules.
[Sub-s. (1) substituted by s. 6 (a) of Act 81 of 1997.]

(2) The court may at any time in the presence of the judgment debtor or the said
director or officer postpone the proceedings to such date as the court may determine.

(3) When postponing the proceedings under subsection (2) the court-
(a) shall inform the judgment debtor or the director or officer concerned of the provisions of
section 65E (1) (c);
(b) may order the judgment debtor or the director or officer to produce such documents as
the court may specify at the hearing on the date determined by the court; and
(c) may determine such conditions as it may deem fit.

(4) In determining the ability of the judgment debtor to pay the judgment debt in instalments or
otherwise the court shall take into consideration-
(a) in the case of a judgment debtor who is a natural person, the nature of his income, the
amounts needed by him for his necessary expenses and those of the person’s
dependent on him, and for the making of periodical payments which he is obliged to
make in terms of an order of court, agreement or otherwise in respect of his other
commitments as disclosed in the evidence presented at the hearing of the proceedings;
or
(b) in the case of a judgment debtor who is a juristic person, the amounts required by such
juristic person to meet its necessary administrative expenses and for the making of
periodical payments which it is obliged to make in terms of an order of court, agreement
or otherwise in respect of its other commitments as disclosed in the evidence presented
at the hearing of the proceedings. [Sub-s. (4) amended by s. 6 (b) of Act 81 of 1997.]

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 (5) In determining the ability of the judgment debtor to pay the judgment debt in
instalments or otherwise the court may, in its discretion, refuse to take account of the
periodical payments that a judgment debtor has undertaken to make in terms of a credit
agreement, as defined in section 1 of the National Credit Act, 2005 (Act 34 of 2005) for
the purchase of goods which have not been exempted from seizure in terms of section
67 or which cannot, in the opinion of the court, be regarded as the judgment debtor's
household requirements.
[Sub-s. (5) substituted by s. 6 (c) of Act 81 of 1997 and amended by s. 172 (2) of Act 34 of 2005]
[NB: Sub-s. (5) has been substituted by s. 36 of the Magistrates' Courts Amendment Act 120 of
1993, a provision which will be put into operation by proclamation. See PENDLEX.] [S. 65D
inserted by s. 2 of Act 63 of 1976.]

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, Act 7 of 2017

‘‘(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 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, 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 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.’’

[Section 65F is inserted by Act 63 of 1976. It was declared unconstitutional in its entirety by
Julius v Commanding Officer, Windhoek Prison & Others; Nel v Commanding Officer,
Windhoek Prison & Others 1996 NR 390 (HC) and substituted by Act 1 of 1999.]

[Section 65G is inserted by Act 63 of 1976. It was declared unconstitutional in its entirety by
Julius v Commanding Officer, Windhoek Prison & Others; Nel v Commanding Officer,
Windhoek Prison & Others 1996 NR 390 (HC) and deleted by Act 1 of 1999.]

[Section 65H is inserted by Act 63 of 1976. It was declared unconstitutional in its entirety by
Julius v Commanding Officer, Windhoek Prison & Others; Nel v Commanding Officer,
Windhoek Prison & Others 1996 NR 390 (HC), and substituted by Act 1 of 1999.]

Application for administration order has preference

65I.
(1) If, before or during the hearing of the proceedings in terms of a notice under section 65A(1) a
judgment debtor has lodged or lodges with the court an application for an administration order for
hearing on a date not later than the earliest date on which such application may be heard and it appears
that he has complied with the provisions of section 74, the court shall postpone the hearing of the

8
 proceedings until the application for an administration order has been disposed of.

(2) If a judgment debtor has not lodged or does not lodge with the court an application for an
administration order before or during the hearing of such proceedings and it appears at the hearing
that the judgment debtor has other debts as well, the court shall consider whether all the judgment
debtor’s debts should be treated collectively and if it is of opinion that they should be so treated, it
may, with a view to granting an administration order, postpone further hearing of the proceedings to a
date determined by the court and order the judgment debtor to submit to the court a full statement of
his affairs in the form prescribed in the rules, and containing the particulars for which the said rules
make provision and to cause a copy thereof to be delivered by registered post to each of his creditors
at least 3 days before the date appointed for the further hearing.

(3) If upon receipt of the statement referred to in subsection (2) it appears that the judgment debtor’s total
debts do not exceed the amount determined by the Minister from time to time by notice in the gazette,
the court may grant an administration order under section 74 in respect of the judgment debtor’s
estate.

[subsection (3) amended by Act 9 of 1997]

(4) If the court grants an administration order in respect of the judgment debtor’s estate, it shall stay the
proceedings in terms of the notice under section 65A(1), but may grant the judgment creditor costs
already incurred in connection with such proceedings, and such costs may be added to the judgment
debt.
[section 65I inserted by Act 63 of 1976]

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, as amended by Act 7 of
2017

(1) (a) Subject to the provisions of subsection (2), a judgment creditor may cause an order (hereinafter
referred to as an emoluments attachment order) to be issued from the court of the district in which
the
(b) An emoluments attachment order—

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

(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) (a) The amount of the instalment payable or the total amount of instalments payable where there is
more than one emoluments attachment order payable by the judgment debtor, may not exceed 25
per cent of the judgment debtor’s basic salary.

(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.

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 (ii) The party applying for the authorisation of an emoluments attachment order or other order
contemplated in this section, must serve notice of the date of the hearing referred to in
subparagraph
(i) on the other 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.

(2) An emoluments attachment order may only be issued

(a) unless the judgment debtor has consented thereto in writing or if the court has so authorised, after
satisfying itself that it is just and equitable that an 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 her attorney must serve, on the judgment debtor and on his or her
employer, a notice, which corresponds substantially with the form prescribed in the rules, of the
intention to have an 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 subsection (2A) must inform the judgment debtor and his or her employer—

(a) of the judgment creditor’s intention to have an emoluments attachment order issued against the
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

(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.

(2C) (a) The notice of intention to 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 used to oppose the issuing of the emoluments attachment order
include, but are not limited to, the following:

(i) that the amounts claimed are erroneous or not in accordance with the law; or

(ii) that 25 per cent of the 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 oppose must be accompanied by—

(i) a certificate by the employer of the judgment debtor setting 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
(bb) when reasonably attainable, the amounts needed by the 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 agreement or otherwise in respect of his

10
 or her other commitments.

(i) the contact details of all the relevant judgment creditors or their attorneys; and

(ii) the latest salary advice of the judgment debtor.

(2D) If a notice of intention to oppose is filed and the judgment creditor or his or her attorney does not
accept the reasons for the 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) The court may, after hearing all parties and after satisfying itself that the order is just and equitable—

(a) 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

(b) 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 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 order must be prepared and signed by the judgment creditor or his or
her attorney
(b) The clerk of the court must 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.

(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 are 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 must furnish the garnishee and the judgment debtor,
free of charge with a quarterly statement containing particulars of the payments received up to the
date concerned and the balance owing.

(5) An emoluments attachment order may be executed against the garnishee as if it were a court
judgment, subject to the right of the judgment debtor, the 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—
(i) judgment debtor, after satisfaction of the emoluments attachment order, will not have sufficient
means for his or her own maintenance or that of his or her dependants; or

(ii) amounts claimed are erroneous or not in accordance with the law, the garnishee, judgment

11
 debtor or any other interested party must without delay and in writing notify the judgment creditor
or his or her attorney accordingly.

(b) The written notification referred to in paragraph (a) must set out the reasons for believing or
knowing that the judgment debtor will not have sufficient means for his or her own 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 her attorney must, after 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 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.

(8) (a) Whenever any judgment debtor to whom an emoluments attachment order relates leaves the
service of a garnishee before the judgment debt has been paid in full, such judgment debtor must
forthwith advise the judgment creditor or his or her attorney in writing of the name and address of
his or her new employer, and the judgment creditor or his or her attorney may cause a certified copy
of such emoluments attachment order to be served on the said new employer, together with an
affidavit or affirmation by him or her or a 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 certified copy referred to in paragraph (a) has been so served, is
thereupon bound thereby and is deemed to have 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) [(a)] Whenever any judgment debtor to whom an emoluments attachment order relates, leaves the
service of the garnishee before the judgment debt has been paid in full and becomes self-
employed or is employed by someone else, he or she is, or is pending the service of the
emoluments attachment order on his or her new employer, again obliged to comply with the
relevant order referred to in subsection (1)(b). again obliged to comply with the relevant order
referred to in subsection (1)(b).

(10) (a) Any garnishee may, in respect of the services rendered by him or her in terms of an emoluments
attachment order, recover from the judgment creditor a commission of up to 5 per cent of all
amounts deducted by him or her from the judgment debtor’s emoluments by deducting such
commission from the amount payable to the judgment creditor.

(b) A garnishee who—

(i) unreasonably fails to timeously deduct the amount of the emoluments attachment order provided
for in subsection (4)(a); or

(ii) unreasonably fails to timeously stop the deductions when the judgment debt and costs have been
paid in full, is liable to repay to the judgment debtor any additional costs and interest which have

12
 accrued or 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) The Rules Board for Courts of 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.’’

Orders as to costs relating to certain proceedings

65K. (1) Unless at the hearing of any proceedings in terms of a notice under section 65A(1) it appears to the
court that the judgment debtor, after learning of the judgment upon which such proceedings were
founded, made an offer to pay the judgment debt in instalments which the court deems reasonable,
or notified the judgment creditor that he was not able to make an offer and the court finds this to be
true, the court may order the judgment debtor to pay the costs of such proceedings, but if it
appears that the judgment creditor refused such offer, the court may order the judgment creditor to
pay such costs, including the loss of wages suffered by the judgment debtor through having to
appear in court in connection with the proceedings.

(2)
[Subsection (2) was declared unconstitutional in part by Julius v Commanding Officer,
Windhoek Prison & Others; Nel v Commanding Officer, Windhoek Prison & Others
1996 NR 390 (HC) and deleted by Act 1 of 1999.]

(3) The provisions of this section shall not preclude the court from making such order regarding costs
as it may deem just in any proceedings in terms of a notice under section 65A(1).

[section 65K inserted by Act 63 of 1976] ***

65L. [Section 65L is inserted by Act 63 of 1976. It was declared unconstitutional in its entirety by Julius
v Commanding Officer, Windhoek Prison & Others; Nel v Commanding Officer, Windhoek Prison
& Others 1996 NR 390 (HC) and deleted by Act 1 of 1999.]

Substitution of section 65M of Act 32 of 1944, as inserted by section 2 of Act 63 of 1976 as amended by Act 7
of 2017

Enforcement of certain judgments of Supreme Court

65M. If a judgment for the payment of any of certain amount of money has been given by a division of the
Supreme Court of South Africa or a court for the regional division,, the judgment creditor may file with
the clerk of the court from which the judgment creditor is required to issue a notice in terms of section
65A(1), a certified copy of such judgment and an affidavit or affirmation by the judgment creditor or a
certificate by his 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 may be taken thereon as if it were a 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.

13
 1. PROCEDURE ON HOW TO CONDUCT SECTION 65 PROCEEDINGS
See (Resource 45.1)
DIS

SSI

2. The Judgment creditor should have judgment granted in his/her favour prior to bringing
CU

ON

the notice.

3. The court has jurisdiction against those people who reside, carry on business or is
employed within its area of jurisdiction. The jurisdiction in respect of the amount is
unlimited; the only thing one needs to check is whether there is a judgment that was
granted against the judgment debtor that remained unsatisfied.

4. Section 65E (4) provides that where the Judgment creditor has proceeded and issued a
warrant of execution against the Judgment debtor without first proceeding in terms of
Section 65A (1) and a nulla bona return is given, should be penalised in as far the costs
are concerned unless the court orders otherwise on good cause shown.

5. Where the judgment debtor is a juristic person, it should be clearly indicated on the
notice that the person is appearing in his representative capacity.

6. The judgment will appear on the file cover if the Section 65 A (1) proceedings are issued
out of the court that granted the judgment.

7. Where the judgment was extracted from another court, then an original copy of the
extract of civil judgment will be attached to the Section 65 A (1) notice, allocated a new
case number by the court issuing same. The extract will reflect the judgment debt, scale
on which costs were granted and the interest rate and date from which it is applicable.

8. Where the judgment was granted by the Supreme Court, a certified copy of the court
order accompanied by an affidavit by the judgment creditor or the certificate by his
attorney stating the amount still outstanding inclusive of costs must be filed with the clerk
of the court who will allocate a new case number for it.

14
9. The certificate or affidavit in terms of Section 65A (1) stating the amounts outstanding
must be attached to the notice or the said notice may not be issued by the Clerk of the
court.

10. If the judgment was granted in the absence of the Judgment debtor and there is no
warrant of execution against the property of the judgment debtor that was issued, then the
Judgment creditor should after the expiry of the period of ten days notify the Judgment
debtor of the judgment granted against him/her by way of a registered post. Look out for
the registered post slip and check if the period of 10 (ten) days has expired after the
judgment date prior to its postage.

11. The only acceptable return of service for the authorisation of the warrant of arrest is
personal service.

12. The Magistrate should ensure that the date, place and time for hearing appear on the
document in a clear manner that is not confusing, before authorising the warrant of arrest.
In big Centres make sure that the court number also appears on the notice as the
judgment debtor might still be in the process of locating the court.

13. The Magistrate should ensure that the amount, interest rate and date as they appear on
the notice are the same as on the judgment.

14. Where the costs are to be taxed, then the taxed amount must be reflected on the Notice.
If the costs are not taxed the Section 65A (1) proceedings may be pre – mature as the
amount due is still uncertain.

15. Ensure that the certificate is properly completed by the attorney, especially the costs
portion.

16. If an offer is made by the Judgment debtor and is accepted by the Judgment creditor
make sure that the income and expenditure columns are properly completed and that
there is sufficient amount left to pay the amount offered. If not satisfied it is safe to put
some questions to the Judgment debtor as in many instances they are pressured into
making such offers.

15
17. The following factors are considered when making an order against a natural person:

18. Nature of his income;

19. his/ her and dependants’ necessary expenses, - transport costs school and or tuition
fees.

20. whether there are other court orders that he need to comply with,

21. Other contractual obligations as disclosed in his/her evidence,

22. the court may refuse to recognise any periodic payments the debtor has undertaken to
make in terms of a credit agreement for the purchase of goods that are not exempted from
seizure in terms of section 67 or which cannot, in the opinion of the court, be regarded as
household requirements.

23. The following are factors to be considered for juristic person:

24. The court has to consider all amounts needed to keep it afloat,

25. As well as all the other court orders and contractual obligations.

26. If satisfied the Magistrate should make the offer an order of court as offered or for such
other amount that he/she is satisfied the Judgment – debtor can afford and still be left with
sufficient means to maintain himself/herself and his/her family.

27. If an emolument attachment is requested, the Magistrate should satisfy himself/herself

that the Judgment debtor is employed within his area of jurisdiction. Then inquire from the
Judgment debtor if he /she have any objection against such an order, if he/she has
objection, what are his/her grounds. In some instances, one can order such an emolument
attachment, but put a condition that it will come into operation only in case of default by
the Judgment debtor. Get the details of the Judgment debtor’s employer on the order.

16
 Note that an emolument attachment cannot be granted against someone who is self –
employed.

28. Make sure that every matter that is re – issued, is reasonably placed on the roll. Where
the period in between the two notices is short and the personal circumstances of the
Judgment debtor have not changed, the matter should be struck of the roll with costs to be
borne by the Judgment – creditor.

29. Where you are conducting an inquiry and could see that the Judgment debtor is just
hiding the assets, check if the person has any expensive jewellery or cellular phone and
indicated that you are about to have those attached, you will be amazed as to how fast an
offer will be made or the whole amount settled. Section 65E (1) (a) (i)

30. If upon conducting an inquiry the Magistrate concludes that the Judgment debtor’s
expenses exceeds his income and the expenses are mainly needs and not wants, then
he/she will postpone the proceedings sine die.

31. Where the Judgment – creditor informs the Court that he has applied for an
administration order in terms of Section 74 of the Magistrate Court Act 32 of 1944, then
the proceedings in terms of Section 65 A (1) will be suspended pending the outcome of
the said administration. If the administration is granted, then the Section 65 A (1)
proceedings are postponed sine die. With the coming into operation of the National Credit
Act 34 of 2005, See (Resource 45.2) the position will now cover a wider range of
people as any person who has approached a Debtor counsellor for assistance will have
his/her case suspended pending the said Debt counsellor’s decision.

17
QUALI

RANC
ASSU
TY

QUALITY ASSURANCE
The purpose of this section is to conscientise Magistrates about what Quality
Assurance inspection will be looking for when doing Quality Assurance.

SECTION 65 PROCEEDINGS

31. Section 65 not properly investigated (Section 65E)

Magistrate Case number Date of enquiry

32. Section 65 notice within 10 days after judgment (Section 65A(1)(a) and Rule 45(1)(b))
Magistrate Case number Date of enquiry

33. Section 65E Nulla bona returns (Section 65E(4))

Magistrate Case number Date of enquiry

34. Costs section 65 not specified: Warrant (Rule 33(14)(b))

Magistrate Case number Date of enquiry

35. Section 65 notice not signed by Clerk of the Court and Attorney (Rule 45)
Magistrate Case number Date of enquiry

36. Service of notice - notice shall be served by the sheriff at least 10 days before the date
fixed in the notice for the appearance before the court (Rule 45(1)(c))
Magistrate Case number Date of enquiry

37. Costs – to be determined if served by attorney or candidate attorney (Section 65A(1)(c))

Magistrate Case number Date of enquiry

38. Supporting certificate not reflecting in what respect the judgment debtor has failed to
comply with the judgment order – warrant (Rule 45(1)(c))
Magistrate Case number Date of enquiry

39. Supporting certificate not after 10 days since the date on which the registered letter

18
 was posted (Rule 45(1)(d))
Magistrate Case number Date of enquiry

40. Supporting certificate not signed by attorney – warrant (Rule 45)

Magistrate Case number Date of enquiry

41. Alterations in section 65A1 notice or in warrant of arrest not initialled by the Clerk of
the Court and Attorney before issue or re-issue of warrant of arrest (Rule 45)
Magistrate Case number Date of enquiry

42. Cost - notice served by attorney or candidate attorney - only payable if personal
service of notice has been effected (Section 65A(1)(c))
Magistrate Case number Date of enquiry

43. Judgment by default and no warrant of execution pursuant to the judgment has been
served on the judgment debtor personally - no notice under subsection (1) shall be
issued unless the judgment creditor or his or her attorney provides proof to the
satisfaction of the clerk of the court that he or she has advised the judgment debtor by
registered letter of the terms of the judgment or of the expiry of the suspension
ordered under section 48 (e), as the case may be, and a period of 10 days has elapsed
since the date on which the said letter was posted (Section 65A(2))
Magistrate Case number Date of enquiry

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PRE
CE
DE
NT

PRECEDENT AND PRACTICAL EXAMPLE FOR SECTION 65 PROCEEDINGS

INSTRUCTIONS

You are requested to kindly double click the icon in order to open the document.

TOPIC PRECEDENT

1. Section 65 proceedings
documentation Section 65 proceedings.pdf

2. Record of Proceedings

20
SO
UR
RE

CE
S

RESOURCES
NO. RESOURCE NUMBER RESOURCE

1 Resource 45.1

2 Resource 45.2

21
 BIBLIOGRAPHY
1 Constitution of the Republic of South Africa, Act No. 108 of 1996

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

BIB
LIO
GR
AP
HY

3 The Magistrates Court Act 32 of 1944,

4 Superior Courts Act, Act 10 of 2013.

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

22
TES
OW

NO
N

Own Notes

23