In this article, Able Tracers and Debt Collectors South Africa outline when it may be necessary to institute legal action against a debtor and how this process works.

We will look at:

• who the client (plaintiff) is,
• who the debtor (defendant) is,
• the role of the court.

Additionally, we’ll look what legal documents are needed to institute an action in the Magistrate’s Court for debt collection and the process to follow when placing an Emolument Attachment Order on a debtor’s salary.

The Benefits of Debt Collectors vs Debt Collection Attorneys

If all debtors paid their debts, there would be no need for debt collection services. The same can be said for debt collection attorneys and their services.

When debtors avoid debt collectors and refuse to negotiate repayment arrangements – attorneys may be the last resort. This should only be an option if all other attempts to recover the outstanding amount have failed.

Below are some of the main differences between an attorney and a debt collector.

According to the National Credit Act, credit providers can initiate legal proceedings from as early as 20 days. However, this can only be done following the correct channels.

Section 129 of NCA requires that all credit providers notify consumers that they intend to initiate legal proceedings prior to doing so.

Furthermore, consumers must be advised of their right to visit a Debt Counsellor. Consumers have ten days to apply for debt review / debt counselling. Following this, credit providers can then proceed with legal action.

Once debt review has been applied for, no legal action can be taken until a court or debt counsellor has found the consumer is not over-indebted.

Debt Collection in South Africa - Litigation Process

The debt collection litigation process can become complicated, drawn out and costly if a debtor decides to defend the matter.

For the purpose of this article, we will look at a case where the debtor has chosen not to defend the action.

Additionally, we’ll look at what documents are needed to have a judgement granted and to place an Emolument Attachment Order (EAO) on a debtor’s salary.

Letter of Demand

Although a Letter of Demand is not compulsory, it is an indication of the seriousness of the matter. Therefore, it’s advised to send one to the debtor before issuing a summons.

A Letter of Demand must clearly state what the claim is for and how much is being claimed. Additionally, it should indicate a period of 10 days in which repayment arrangement can be made. It can be delivered by hand, sent via registered mail or served by a Sheriff of the court.

Issuing a Summons

If the debtor fails to make repayments following the Letter of Demand, the next step will be to issue a summons.

If the amount is less that R100 000 the summons can be issued by a clerk of the Magistrates’ Court.

In the case where the amount is over R100 000, the summons must be issued by the Registrar of the High Court.

There is a standard format that has the particulars of the claim attached to it.

If the particulars of the claim makes up less 100 words, they can included in the summons. Alternatively, they must be attached to the summons as an addendum. Particulars include how the claim arose and what the amount is being claimed.

• Credit provider – Plaintiff
• Debtor - Defendant

A summons with an attached loan agreement can be drafted by the plaintiff, however it must be stamped by the clerk of the court.

A summons must be served by the sheriff of the court. Following this, the clerk of the court is notified.

A summons must include the following information:

• The Plaintiff’s name and address
• The Defendant’s name and address
• A form of “notice of intention to defend”
• A notice advising the Defendant that they have ten days to enter a “notice to defend”.
• A form of consent to judgement
• A notice drawing the Defendant’s attention to the consequences of their failure to obey the order of the court once judgement has been granted against him/her.

The “particulars” must contain:

• Citation: Plaintiff and Defendant’s personal details;
• Jurisdiction: that the court has jurisdiction (either the action arouse in its area or that the defendant resides or works in the court’s jurisdiction);
• The cause of action: what is the basis of your case, e.g. loan agreement;
• A statement: that notes damages suffered by the Plaintiff and damages caused by the Defendant.
• Appeal: what relief you are asking for (payment of legal fees and interest).

Emolument Attachment Order (EAO) / Garnishee Order Application

Once judgment is granted, the Plaintiff can apply to have an EAO or Garnishee Order attached to either the debtor’s salary or to a third party who owes the debtor money.

This deduction requires the consent of the debtor and the deduction amount must be agreed upon.

To avoid delay, it’s best to have the debtor sign an acknowledgement of debt and consent to the emolument attachment order being placed on their salary before making an application for the EAO to the court.

These deduction run until the whole debt is settled, they are deducted with every salary and must be paid by the employer or the debtor to the creditor.

*EAOs and Garnishee Orders are not only applicable to credit related matters but also child maintenance.

In cases where the debtor does not consent, the next step would be a court appearance with the debtor in terms of S65 financial enquiry.

A date needs to be arranged with the clerk of the court. The Plaintiff must have an attorney representing them, however the debtor can represent themselves. They are then required to give an account of their monthly income and expenses – the court will then decide how much the Defendant must pay each month.

Instruction letter to debtor’s employer

Once an EAO is granted, a copy must be served on the debtor’s employer. An attached instruction letter will help them better understand exactly what is required.

Able Tracers and Debt Collectors South Africa

Taking legal action against a debtor is the second phase of action in our recovery process.

Even though every effort is created to encourage payment, some debtors only react on court proceedings.

Before contacting a debt collection attorney, contact us.

Able Tracers and Debt Collectors institute legal action on your behalf against any debtor capable of paying and unwilling to pay.

For more information about our legal debt collection services or tracing and investigation services.