The execution process and the effect that judgment may have on a debtor’s moveable and/or immovable property

Once a judgment has been obtained against a Debtor through action proceedings, the Debtor is obliged to settle the judgment debt or make an arrangement with the Creditor to pay off the said debt.

If a Debtor does not settle the judgment or approach the Creditor concerned to make arrangements, the Creditor may firstly execute against the moveable property owned by the Debtor to satisfy the judgment.

If the judgment thereafter remains unsatisfied or if the Debtor does not have any moveable property, the Creditor may then proceed against the immoveable property of the Debtor.

This is referred to as the “execution process”. This process is ongoing and can be enforced until the judgment amount has been satisfied in full. In layman’s terms, this is the process whereby your property is written up by a Sheriff of the Court and sold on auction.

It is therefore, of the utmost importance for all Debtors to take judgments seriously to avoid loss of property.

The execution process, and the effect thereof, will be briefly discussed and explained in detail in this article.

A judgment can be obtained against a Debtor out of any Civil Court, such as the Small Claims Court, the Magistrate Courts and High Courts. However, it is more common for it to be obtained in the Magistrate’s Court.

In terms of Section 62(1) of the Magistrates Court Act 32 of 1944, as amended:

“Any court, which has jurisdiction to try an action, shall have jurisdiction to issue against any party thereto any form of process in execution of its judgment in such action.”

Before it can be said that execution has been levied on the moveable and/or immoveable property of a Judgment Debtor or obtained against him or her, three essential requirements must have been complied with.

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