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Magistrates’ Courts

Judges and magistrates make up the ‘judiciary’, presiding over all civil and criminal cases in the Republic. There are a dozen high courts, presided over by judges, whereas there are hundreds of Magistrates’ Courts. The word ‘magistrate’ comes from the Latin word ‘magister’, meaning master, and in ancient Rome it referred to one of the highest offices of state.

The Magistrates’ Courts Act 19441 could well be described as a stalwart in the landscape of a legal practitioner’s library, even though it has been amended on almost seventy occasions. It consolidates the law relating to the functioning of the Magistrate’s Courts throughout the Republic. The Act is administered by the Minister of Justice and Correctional Services.

A significant volume of the legal process through these courts concerns the recovery of debts.

A. Debt collection

  1. No person, other than an attorney, or a person authorised under the National Credit Act 2005,2 is entitled to recover from a debtor3 any fees or remuneration in connection with the recovery of a debt from him.4 It is an offence to do so.5

  2. If any judgment of a (magistrate or high) court ordering the payment of money remains unsatisfied for a subsequent period of ten days, the court may order the judgment debtor to appear before a magistrate in order that he may enquire into the debtors’ financial position, and then make such further order as he thinks is just and equitable.67

  3. If you are called to appear, under such a notice, it is a crime if you:8
    • wilfully fail to do so on the date and at the time specified; or
    • wilfully fail to remain in attendance.
  4. When a person is owed rent by someone, and issues a summons for that rent, there is a section in the Act which provides that he can include (in the summons) a notice prohibiting anyone from removing any of the furniture or other effects until the court has given its judgment on the claim.9 This is called an ‘automatic rent interdict’. Any person who disobeys or fails to comply with such a notice commits a criminal offence.10

  5. Whenever someone (who has not yet satisfied a judgment against him) changes his place of residence, business or employment he must notify the clerk of the particular court and the judgment creditor, in writing; if his estate is under administration, he must also notify the administrator, or their attorneys.11 If he does not do all this, within 14 days of the change in question, he is guilty of an offence.12

B. Administration order

One of the remedies that a magistrate can implement is the appointment of an ‘administrator’ to the debtor’s finances. The administrator has a number of duties, related to the overall purpose of seeing to the repayment of the debts, including by instalments.13

  1. One duty, in particular, is to deposit all moneys received by him – whether from, or on behalf of debtors whose financial affairs (i.e. ‘estates’) are under his administration.14 If he fails to deposit these moneys into the appropriate trust accounts, he commits an offence.15

  2. You commit an offence if you incur debt16 without disclosing that you are subject to an administration order.17

C. Employer’s obligations

Another remedy is the imposition of an ‘emoluments order’18 on the debtor’s employer, referred to as the ‘garnishee’. What this does, effectively, is lay hold to the salary and other monetary benefits owed to the employee (that is, the debtor) and oblige the employer to make payments, on the debtors’ behalf as it were, according to the specific instalments plan ordered by the court.

  1. Any garnishee who dismisses or terminates the services of a judgment debtor (who is subject to the emoluments attachment order) himself commits an offence.19
  2. An employer who has been requested by an employee to give a statement setting out the emoluments owed to that employee commits an offence if he:20
    • fails to do so within a reasonable time; or
    • furnishes incorrect information.

D. Execution

When lawyers talk about ‘execution’ – well, at least in South Africa – they do not mean the death sentence. Execution is when there is a judgment ordering you to pay money, and the sheriff of the court comes along and attaches some of your property to be sold “in execution” of the judgment debt. (He is not allowed to attach everything – necessary furniture, tools of trade, and food supply for a month, for example, are exempted.)

  1. If there is no property to attach, the sheriff will notify the court and the judgment creditor – this is called a nulla bona21 return. If a nulla bona return has been rendered in respect of a judgment against you, you will commit an offence if you obtain credit from anyone without informing them of:22
    • the unsatisfied judgment; and
    • the nulla bona return.
  2. Any person who obstructs a messenger of the court, or the sheriff in the performance of his duties commits a criminal offence.23

  3. If you know that goods have been attached (or are subject, for example, to a rent interdict) and you dispose of them, or allow their disposal, you are guilty of a criminal offence.24

  4. If you, as a judgment debtor, are required by the sheriff to point out property to satisfy a warrant of execution and you neglect or refuse to do so, it is an offence.25

  5. It is also an offence to:
    • refuse to hand over documents regarding title to available property which is under a warrant of execution;26 to make any false declaration to the Sheriff about your property.27

E. Contempt of court

  1. Any person who disobeys, or fails to comply with any judgment or order of court commits the offence of ‘contempt of court’.28

  2. In curia29 contempt of court is also a criminal offence. This happens where you:30

    • wilfully insult the judicial officer during the hearing;
    • wilfully insult the clerk of court, or the sheriff or other officer during the sitting of the court;
    • wilfully interrupt the proceedings; or
    • otherwise misbehave.

F. Evidence in foreign cases

Sometimes evidence is needed from a South African resident for a criminal case in a foreign country. The Director-General in the Department of Justice can direct a magistrate to take the evidence, and whereupon the witness concerned shall be subpoenaed and examined in a hearing before the magistrate.

  1. In terms of the International Co-operation in Criminal Matters Act 1996 it is an offence31 for any person who is subpoenaed to:
    • fail to appear;
    • fail to bring or produce any book, document or object he was ordered to produce;
    • fail to remain in attendance until excused;
    • refuse to be sworn in or make an affirmation;
    • fail to answer satisfactorily any question put to him.
  2. It is an offence to give false evidence, knowing it to be false.32
  1. As amended; the latest amendment was effected by Act 42 of 2013. 

  2. See the Chapter on the National Credit Act. 

  3. A debtor is someone who owes money. 

  4. Section 60(1). 

  5. Section 60(2). 

  6. Section 65A(1)(a). 

  7. For example, the magistrate can order that the debtor’s property be sold to satisfy the judgment debt. (The Act sets out certain types of property which may not be sold – see section 67). 

  8. Section 65A(9). 

  9. Section 31. 

  10. Section 106. 

  11. Section 74T. 

  12. Section 109. 

  13. Section 74J. 

  14. Section 74J(7). 

  15. Section 74W. 

  16. For example – borrow money, or purchase something on credit. 

  17. Section 74S. 

  18. ‘Emolument’ is a fancy word for salary. 

  19. Section 106A. 

  20. Section 106B. 

  21. Literally ‘no goods’ in Latin. 

  22. Section 79. 

  23. Section 107(1). 

  24. Section 107(2). 

  25. Section 107(3)(b). 

  26. Section 107(4). 

  27. Section 107(3)(a). 

  28. Section 106. 

  29. This means ‘inside the courtroom’. 

  30. Section 108(1). 

  31. Section 10(1) of International Co-operation in Criminal Matters Act 1996. 

  32. Section 10(2) of International Co-operation in Criminal Matters Act 1996.