By Estiaan Conradie
Section 65 of the Magistrates’ Courts Act 32 of 1944 (the Act) provides a practical way to recover a debt when a court order for payment has not been honoured. If the amount remains unpaid for more than 10 days after it became due, the creditor may ask the court to inquire into the debtor’s financial position and make an order that is just and equitable in the circumstances.
This article explains the Section 65 process in clear, straightforward language so that anyone, whether familiar with legal terms or not can understand exactly what happens and what is required.
1. When does this process apply?
You have obtained a court order (or a settlement agreement made an order of court) requiring the debtor to pay you a specific amount by a certain date. You wait patiently, but the payment never arrives. After confirming the non-payment, you instruct your attorney to send the debtor a formal demand by registered post, giving them a further 10 days to pay. If they still do not pay, you may proceed with a Section 65 notice.
2. Which court and what documents are needed?
The Section 65 notice must be issued in the Magistrate’s Court that has jurisdiction over the debtor. For a natural person, this is the court in whose area the debtor:
- resides, or
- works, or
- carries on business.
For a company or close corporation, it is the court in whose area the debtor’s registered office or principal place of business is situated.
To obtain the notice and a court date, the following documents must be lodged with the Clerk of the Court:
- Notice to Appear in terms of section 65A(1) of the Magistrates’ Courts Act (Form 40 available on the Department of Justice website);
- Certificate in Support of the Notice (prepared by the judgment creditor or their attorney, setting out the amount owed, including interest, and the relevant circumstances);
- Copy of the original court order;
- Copy of the demand letter sent by registered post, together with proof of posting.
Submit the documents in the order listed above, with a copy for your file and one for each debtor. Once everything is in order, the Clerk will issue the notice and allocate a court date.
3. Serving the notice and preparing the court bundle
The notice must be served personally on the judgment debtor. The most reliable method is to use the sheriff of the court, who will provide a formal return of service. Although the Act also allows service by your attorney or a candidate attorney, magistrates now insist on clear proof that the debtor received the notice in good time (normally at least 10 court days before the hearing).
Proof of service must be filed with the Clerk, otherwise the matter will not be placed on the roll. You must also file a properly indexed bundle containing:
- Index
- Notice to Appear
- Supporting certificate
- Copy of the court order
- Demand letter and proof of posting
- Proof of service
If the debtor voluntarily supplies their financial documents (list of assets and liabilities, income and expenditure, and supporting proof or financial statements in the case of a company) before the hearing, include these in your bundle as well.
4. What happens on the court date?
On the day of the hearing, the magistrate will first confirm that both parties (or their representatives) are present. If the debtor was properly served but fails to appear, the magistrate will require you to call the debtor’s name three times outside the courtroom. If there is still no appearance, the court may issue a warrant of arrest where appropriate.
If the debtor does appear, the magistrate conducts a detailed inquiry into their financial position. The court will then make an order it considers just and equitable. In most cases this means repayment by affordable monthly instalments that allow the debtor to meet basic living expenses. In some matters the court may order full payment immediately or within a short period. The Act gives the magistrate wide discretion, provided the order remains fair to both sides.
Conclusion
Section 65 proceedings offer an effective way to enforce a court order while ensuring the repayment arrangement is realistic and fair. However, the process involves strict rules regarding jurisdiction, documentation, service and the preparation of bundles. Any mistake can delay recovery or even result in the matter being left off the roll.
If you have obtained a court order that remains unpaid and need assistance with the Section 65 process or if you are unsure about any step we strongly recommend seeking professional legal advice. At Hurter Spies Inc. Attorneys, we specialise in debt recovery and Magistrate’s Court matters. Our team will handle the entire process efficiently and professionally to help you recover what is rightfully yours. Contact us today to discuss your matter.