Section 67 of the Magistrates’ Courts Act 32 of 1944 – A forgotten provision?

August 1st, 2024
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Section 67 limits the right of an execution creditor to attach and sell in execution movables belonging to an execution debtor: The limitation provides that assets less than R 2 000 in value are exempt from attachment. That limitation is intended to protect the debtor against the harsh effects of execution, thereby enabling him or her to proceed with life with a semblance of dignity, normality, and to continue earning a livelihood. In other words, having obtained judgment, the execution creditor cannot simply execute and leave the debtor utterly vanquished and destitute.

The protection contained in s 67, which predates the Constitution, has since 1994 steadily, year-on-year, been eroded because the Minister of Justice has failed or neglected to use his power to ensure that full protection remains in place – by increasing the R 2 000 limit regularly to keep pace with inflation.

Therefore, even though s 67 remains on the statute book, the failure or neglect has caused the protection intended by the lawgiver to evaporate.

Section 67 reads as follows:

‘Property exempt from execution –

In respect of any process of execution issued out of any court the following property shall be protected from seizure and shall not be attached or sold, namely:

(a) the necessary beds, bedding and wearing apparel of the execution debtor and of his family;

(b) the necessary furniture (other than beds) and household utensils in so far as they do not exceed in value the amount determined by the Minister from time to time by notice in the Gazette;

(c)        stock, tools and agricultural implements of a farmer in so far as they do not exceed in value the amount determined by the Minister from time to time by notice in the Gazette;

(d)        the supply of food and drink in the house sufficient for the needs of such debtor and of his family during one month;

(e)        tools and implements of trade, in so far as they do not exceed in value the amount determined by the Minister from time to time by notice in the Gazette;

(f)         professional books, documents or instruments necessarily used by such debtor in his profession, in so far as they do not exceed in value the amount determined by the Minister from time to time by notice in the Gazette;

(g)        …

Provided that the court shall have a discretion in exceptional circumstances and on such conditions as it may determine to increase the amounts determined by the Minister in respect of paragraphs (b), (c), (e) and (f).’

The reader will see that the power to determine the value is given to the Minister in paragraphs (b), (c), (e) and (f) by virtue of the following words: ‘in so far as they do not exceed in value the amount determined by the Minister from time to time by notice in the Gazette’.

The last occasion when this power was exercised by the Minister was 1994 (ie, before the advent of democracy) when he determined the amount to be R 2 000 in respect of the following categories of goods –

  • furniture (other than beds), and household utensils;
  • stock, tools and agricultural implements;
  • tools and implements of trade; and
  • professional books, documents and instruments.

That notice (GN R385 GG15527/1-3-1994) reads as follows:

‘Under paragraphs (b), (c), (e) and (f) of section 67 of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), I, Hendrik Jacobus Coetsee, Minister of Justice, hereby, with effect from 1 March 1994, determine
R2 000 to be the amount for the purposes of each of the said paragraphs.

HJ Coetsee

Minister of Justice’.

I now proceed to show how the failure and neglect of the Minister has deprived the poor of their most meagre possessions. I end the article by commenting on the cruelty of seizing food and drink of the debtor insofar as it exceeds a month’s supply.

The rights to dignity recognised half a century ago

Even though the right to dignity was not part of our legal lexicon pre-1994, there can be no doubt that this value animated the protections that are contained in s 67. Hence the exemption relating to beds, bedding and clothing insofar as necessary. These are exempt because Parliament probably considered that the debtor and his or her family must have a place to sleep; and have clothes. To the extent that these items are necessary – they are wholly exempt, regardless of value.

The following further protections are provided up to the limit of R 2 000:

  • Furniture other than beds is exempt up to R 2 000. This can only mean that the debtor and his family must be allowed to continue having a semblance of a civilized existence.
  • Household utensils are exempt up to R 2 000. These are exempt because the debtor must have access to cooked food and thereby maintain their health so that he can go out and earn a living, support their family and of course, pay off debts.
  • Stock, tools and agricultural implements were exempt up to R 2 000.
  • Tools and implements of trade up to R 2 000.
  • Professional books, documents and instruments up to R 2 000. These last three categories all enable the debtor to be suitably equipped so that he can earn a livelihood and thereby maintain his family and pay off his debts.
How the inertia/inaction of the Justice Minister to increase the limits has detracted from/nullified the property rights of the poor

When these limits were originally enacted they afforded substantial protection and safeguards for a debtor because R 2 000 in 1994 was a significant amount of money; and goods of that value were considered substantial.

Those protections and safeguards have over the last 29 years been eroded to insignificance because the Justice Minister has failed to increase the limit in tandem with the consumer price index (CPI). Had it been increased annually, or at regular intervals, the limit would today stand at R 9 832 (having regard to the CPI for each year since 1994). In other words, the items identified above would have been exempt from execution to the value of at least R 9 832, or almost R 10 000. In other words, the protected goods would be anything below ±R 10 000.

It is submitted that this failure on the part of the Justice Minister is a serious encroachment on the property rights of the poor generally, and debtors in particular. There cannot be any doubt that over the past 30 years, goods belonging to the poor, that ought to have been exempt/protected, were attached and sold, further impoverishing the affected debtors. These executions, while having the aura of being lawful, would not to have been undertaken if the limit had kept pace with the CPI. That effectively constitutes a redistribution of wealth from the poor to the rich; and an infringement of the constitutional property rights of this class of persons.

Section 67 ends by giving the court the discretion to increase the limits ‘in exceptional circumstances and on such conditions as it may determine’. A search did not reveal any court having used this power. What those ‘exceptional circumstances’ and ‘conditions’ would be, is also unknown. For purposes of certainty, the most reliable yardstick would be for a determination to be made by the Justice Minister. An application should be considered to compel the Minister to exercise this power. In this regard s 10(1) of the Interpretation Act 33 of 1957 provides that: ‘When a law confers a power or imposes a duty then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.’ I submit that the ‘occasion’ for exercising the power is long overdue – s 67 has been rendered meaningless as a result of the tardiness of the Minister to afford the protection that Parliament originally intended.

Attaching food and drink exceeding a month’s supply

Section 67(d) states that food and drink exceeding a month’s supply can be attached. This limitation is wrong in principle and cruel. The question may be asked: How is one to determine what amount of food and drink exceeds a month’s supply? What would be the yardstick? What legitimate purpose does that limitation serve? What is the situation where the debtor has children in his or her care? I submitted that the limitation of a month in this provision should be deleted as being nonsensical – unless there is evidence that the debtor is conducting a food business from home.

Ranjit Purshotam BProc LLB (Unisa) is a legal practitioner at JP Purshotam Attorney in Durban.

This article was first published in De Rebus in 2024 (August) DR 26.

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