By Yusuf Mahmood Surty

Section 65A(1) of the Magistrate’s Court Act 32 of 1944, in the District Court, is a procedure in order to inquire into the financial position of such debtor where he or she has not satisfied a judgment for the payment of a sum of money granted against him, and to enable the court to make such an order which has at its aim the settlement of the judgment debt as it may deem just and equitable (see Lombard v Minister Van Verdediging 2002 (3) SA 242 (T) and see also ‘The law reports’ 2002 (July) DR 43).

This procedure could also be used where judgment was granted in another district or the High Court or of a regional court, a copy of the judgments certified by the clerk or registrar of the court that granted the judgment must first be obtained and filed in the court out of which the s 65A, proceedings are to be instituted.

This article deals with Form 40 of the Annexure 1 Notice of the magistrate’s court rules, the Certificate of Judgment; creditor’s attorneys or affidavit or affirmation of the judgment creditor if in person and the registered letter advising the judgment debtor by registered letter of the terms of the judgment against him or her.

Form 40 Notice to appear in terms of s 65A (1)

The s 65A(1) Notice is in the form of a summons. It is served out of the court in whose area of jurisdiction the debtor resides, conducts on business, or is employed, or from the court in the district of which the registered office or main place of business of the debtor or juristic person is situated.

Regarding the said notice as far back as the Constitutional Court case of Coetzee v the Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC), Judge Kriegler made some distinct comments regarding the ‘so-called’ Notice to show cause issued, pursuant to a s 65A notice in that:

• It does not spell out what the defences are or how they could be established.
• The burden cast on the debtor with regard to inability to pay although possibly defensible in principle as pertaining to matters peculiarly within his or her knowledge is so widely couched that persons genuinely unable to pay are nevertheless struck.
• The judgment debtor is entitled in terms of his Constitutional rights to a fair trial with procedural safeguards including the right to legal assistance at public expense, if justice so requires.

Considering the above, my view of the notice is that it does not state the following:

• Whether the judgment was taken against the judgment debtor by default.
• Where parties were married in community of property both spouses should be called to court and the notice refers to the singular, ‘you’ and not ‘we’, the plural.
• If judgment was taken from another court the extract of the judgment is never attached for the judgment debtor to know which court granted judgment against him or her.
• The amount claimed does not even state if it includes interest or not.
• The notice does not refer the parties to their constitutional right to legal representation at the inquiry.

Certificate of judgment of creditor attorneys or an affidavit/affirmation of the judgment creditor

In terms of s 65A(4): ‘If the court has given judgment for the payment of an amount of money in installments, 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 what extent he or she is in arrear with the payment of the installments and that the judgment debtor was advised by registered letter of the terms of the judgment.’

The usual practice for attorneys is to include in the certificate the following:

I, ____________, attorney for the judgment creditor hereby certify:

1. That on ____________ judgment was obtained against the above named judgment debtor.
2. That the judgment or order has remained unsatisfied for a period of 10 (ten) days from the date on which it was given.
3. That the judgment debtor has failed to comply with the judgment or order referred to in s 65A(1) of the Act in that he/she has failed to pay any part thereof.
4. That the amount in arrears is R____________ and the outstanding balance is R____________.
5. That the judgment debtor has been advised by registered letter of the terms of the judgment and of the consequences of his failure to satisfy the judgment.
6. That a period of 10 (ten) days has elapsed since the date on which the said registered letter was posted.
7. That the court is not barred by the provisions of s 19 of the Credit Agreements Act 75 of 1980, from making a decree or otherwise or an order referred to in that section.

Regarding para 1, the attorney should state which court granted the judgment and how. Whether by default or by the court after hearing of a trial.

The most important para is 5 and 6, which states that the judgment debtor has been advised by registered letter of the terms of the judgment and of the consequence of his or her failure to satisfy the judgment and that a period of ten days has been elapsed since the date on which the registered letter was posted.

In practice, attorneys only attach a registered slip to the registered letter, which will be on outline in the subheading on the registered letter.

Regarding para 7 states that s 19 of the Credit Agreement Act, the court is not barred from making an order.

The judgment debtor does not even know what this Act implies and more should be stated in simple terms by the attorney in this regard.

In my opinion the public are now more familiar with the National Credit Act 34 of 2005 and issues relevant to this Act should be stated in this s 65A procedure.

There is, therefore, no specific format of such certificate and if a judgment creditor is in person, affidavit/affirmation is usually very brief and does not even refer to all relevant issues.

I suggest that a form should be drafted by the legislature to assist attorneys regarding the certificate as well as the in person judgment creditor who has to dispose of an affidavit/affirmation.

The registered letter in terms of s 65A(2) to the judgment debtor

In terms of the above, s 65A(4), r 45(1)(d) of the Magistrate’s Court Act (as amended) also provide that the judgment debtor has been advised by registered letter of the terms of the judgment or the expiry of the period of suspension under s 48(e) of the Act, as the case may be, and that a period of ten days has elapsed since the date of the said letter was posted.

Van Loggerenberg Jones & Buckle The Civil Practice of the Magistrate’s Courts in South Africa (Cape Town: Juta 1988) in their commentary refer to proof of the satisfaction of this letter to the clerk of the court and not the magistrate who determines the proof of satisfactory service of the registered letter and cite an old case of Greek Farming Syndicate Ltd v Zevenfontein Ltd 1926 CPD 248C.

I am of the opinion that judicial notice should certainly be taken into account of the ongoing strikes of the South African Postal Services in respect of registered letters, which are never in fact received by the public. In the above s 65A(2) proceeding, no proof is furnished that the judgment debtor has received the registered letter other than the registered slip attached to the letter of the terms of the judgment.

In my recent appearance as a presiding officer in a s 65 case, all the judgment debtors in the court were asked if they knew of the judgment against them. None of them received the ‘registered letter’ sent to them and, in fact, were not even aware when judgment had been handed down. The judgment debtor then advised the court to grant a postponement to them to apply for a rescission the judgment and the inquiry is then postponed for this purpose.

I am of the view that judicial oversight should be taken by the courts of how the judgment letter is drafted by the attorney, judgment creditor if in person, as well as that the registered letter that comes to the knowledge of the judgment debtor like in the cases of the s 129 notice of the National Credit Act where a track and trade report can also be shown to the court, rather than to the clerk of the court (see cases of Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) and Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC)).

In my view, the legislature should rather consider a similar amendment to the s 65A (r 45(e)) procedure regarding service of the ‘registered letter’ as to the recent amendment of the s 129 of the National Credit Amendment Act 19 of 2014, which came into operation on 13 March 2015.

These subsections provide:

‘(5) The notice contemplated in subsection (1)(a) must be to the consumer –

(a) by registered mail; or

(b) to an adult person at the location designated by the consumer.

(6) The consumer must in writing indicate the preferred manner of delivery contemplated in subsection (5).

(7) Proof of delivery contemplated in the subsection (5) is satisfied by –

(a) written confirmation by the postal service or its authorised agent, of delivery to the relevant post office or postal agency; or

(b) the signature or identifying mark of the recipient contemplated in subsection 5(b).’

If the above is done in the above subheadings notice, certificate, registered letter and registered slip in s 65A procedure, surely the judgment debtors would have knowledge of the judgment taken against them and would contact the judgment creditor or their attorney even prior to s 65A(1) procedure is applied by the judgment creditor.

Yusuf Mahmood Surty BProc LLB (Wits) is a magistrate in Boksburg.

This article was first published in De Rebus in 2016 (Jan/Feb) DR 26.