FREQUENTLY ASKED QUESTIONS
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Are certain assets of an individual exempted from attachment?
Yes, in terms of section 67 of the Magistrate’s Court Act and Section 39 of the Supreme Court Act 59 of 1959, the Sheriff or his deputy may not seize the following property: - The necessary beds and bedding and wearing apparel of the person against whom execution is levied or any member of his family. - The necessary furniture, other than beds, and household utensils not exceeding the value determined by the Minister through proclamation in the Government Gazette (±R2000,00). - Any food or drink sufficient to meet the needs of the defendant and members of his family for one month. - Tools and implements of trade used by the defendant in his profession in so far as they do not exceed the value determined by the Minister from time to time by notice in the Gazette. Professional books, documents or instruments are also exempted under this category.
Can a Sheriff perform his duties anywhere in South Africa?
No, a Sheriff can only perform his duties within the area of jurisdiction of which he has been appointed.
Can a Sheriff use force to enter a premises?
In terms of Rule 41(2) of the Magistrate Court Act the Sheriff is allowed to use the necessary force to open any door if entering is refused or if there is no person who represents the defendant against whom such warrant is to be executed.
Can a summons be served by registered post?
Yes, if the Sheriff is instructed in writing to serve a process by registered post, he must effect this service in terms of rule 9(3)(f) of the Magistrate’s Court Rules.
Can an emolument attachment order in terms of section 65(J) be served by any person?
An emolument attachment order, also known as a garnishee order, is an order issued by the Court whereby a judgment creditor can attach part of a defendant’s salary on a monthly basis. A garnishee order is served on the employer of the defendant. In terms of Section 65J(3), an emoluments attachment order shall be prepared by the judgment creditor or his attorney, shall be signed by the judgment creditor or his attorney and the clerk of the court, and shall be served on the garnishee by the Sheriff in the manner prescribed by the rules for the service of process. It is a criminal offence to falsely represent oneself as a Sheriff.
Can money in a bank account or debt owing to a debtor be attached by a Sheriff with a normal warrant of execution?
Section 68 of the Magistrate’s Court Act does not make provision for money in a bank account to be attached. Section 72 read with Rule 47 of the Magistrate Court Act do make provision for the attachment of debts payable to the debtor. In the Supreme Court Rule 45(12) does make provision for attachment of debt payable to the debtor but certain procedures must be followed by the Sheriff.
Does an administration order or application for sequestration affect a warrant of execution?
Yes, in terms of Section 74P of the Magistrate Court Act a creditor shall have no remedy against the debtor or his property for collecting money as long as an administration order is of force. In terms of Section 5 of the Insolvency Act 24 of 1936, a sale in execution is prohibited after publication of notice of surrender in the Gazette.
How does the Sherrif distribute procedes after an auction has taken place?
In terms of Rule 39(1) and (2) of the Magistrate Court Act, costs and expenses for the issuing and execution of the warrant is first to be deducted. Any hypothec existing prior to attachment is next in line. Then all warrants received by the Sheriff on or before the day immediately preceding the day of the sale shall rank pro rata.
If a warrant is issued against the State or Government, is the Sheriff allowed to attach the State`s property?
No, in terms of the State Liability Act 20 of 1957 and, in particular, section 3, a warrant must be referred to the State's National Income Fund or the Provisional Income Fund. Assets of the State are therefore not attachable or executable by the Sheriff.
Is a Sheriff allowed to attach property belonging to a third party on the premises occupied by the debtor?
Property found in the possession of the debtor may be attached. There is a presumption that it belongs to him. If the property belongs to a third party, written evidence in the form of an affidavit by the alleged owner with the documentary proof must be supplied to the Sheriff. If the creditor or his attorney does not accept the claim, an Interpleader Summons must be issued to the plaintiff, defendant and claimant to determine ownership in terms of Section 69 and Rule 44 of the Magistrate Court Act.
Is it necessary for a defendant to sign for a summons?
In terms of Magistrate Court Rule 9(5) it is deemed sufficient service if a copy of the process is affixed to the outer or principal door or the security gate if the premises are kept closed in order to obstruct service.
Is the Sheriff part of the state or government?
Although the Sheriff is appointed by the Minister of Justice and performs many functions on request and instruction of the State, he practises for his own account. The State is therefore not liable for any loss or damage arising out of any act of omission by a Sheriff or his deputy. (Section 54 of the Sheriff`s Act 90 of 1986).
What is a Return of Service?
Once the Sheriff has given service, the Sheriff must compile and sign a document known as a Return of Service wherein is stated the date, the mode of service and the result of the execution if any. If the service was unsuccessful, the document is known as a Return of Non-service, which serves as evidence of the service. A return of service is prima facie proof of service, and a party contesting the declarations must show that it does not reflect the true facts. The Sheriff may supplement an incomplete return or give supplementary evidence in order to correct any ambigious declarations.
When does an attachment of movable property lapse?
In terms of Rule 41(7)(e) of the Magistrate’s Court Act, four months after attachment, or if the creditor requested the attachment to be withdrawn. The four month period does not apply if there is a Court Order extending the attachment, or if there is a sale pending or if there is an interpleader pending. In the Supreme Court, no specific provision has been made for the lapse of an attachment, but the execution creditor can instruct the Sheriff to uplift an attachment.
When does an attachment on immovable property lapse?
According to the Magistrate Court Section 66(4), one year after attachment. In the Supreme Court, only when an execution creditor give instructions to uplift.
Who appoints a Sheriff?
The Minister of Justice appoints the Sheriff after consultation with the Board of Sheriffs in the prescribed manner for Lower and High Court in a specific jurisdiction.
Why does a Sheriff give service of a document?
A person is entitled to know when legal proceedings have been instituted against him/her. This is done through proper notice. Notice is given by serving a copy of the process on the defendant, explaining the nature and contents of the process.