Your Rights and Obligations In this page, we give an overview of your rights and obligations when you are approached by a Sheriff. The Sheriff whose conduct is regulated by a Code of Conduct, and whose powers are defined by relevant legislation, with the Board for Sheriff's acting as a watchdog over the profession. Appointment The Sheriff, appointed by the Minister of Justice, is an independent Officer of the Court whose conduct is regulated by the Board for Sheriffs established in terms of the Sheriffs Act No. 90 of 1986. Deputy Sheriffs may be appointed only with the permission of the Board for Sheriffs. Each person thus appointed must carry a Certificate of Appointment while on duty, which must be produced on request. Authorization Only the Sheriff or his Deputy is authorized to serve and execute legal documents such as summonses, notices, warrants and court orders issued by the Court. It is a criminal offence to present oneself falsely as a sheriff. If you are in doubt, ask for the relevant Certificate of Appointment.
IMPORTANT - The Sheriff and Deputies are the only people authorized to re-posess your motor vehicle or furniture in terms of an order of Court, UNLESS you have given the seller permission to effect restitution voluntarily.
Sheriffs, when executing process, may enter your premises or any part thereof, even during your absence, by such means as may be necessary, and this right extends to opening any door on any premises, or of any piece of furniture. Obstruction Any person who obstructs a sheriff in the execution of his duties or provides false information is guilty of a punishable offence and may be prosecuted. It is unwise to pick a fight with the Sheriff as he is an impartial party in the dispute between the plaintiff and the defendant. In the execution of his duties the sheriff may call on any member of the SAPS to assist him in the execution of his duties. Payment Only a Sheriff or Deputy may demand payment or delivery of goods in terms of a Warrant or Order of Court. If you are in doubt, demand to see his/her Certificate of Appointment. When a Sheriff presents a debtor with a Warrant of Execution against Property and the debtor pays the full amount with the Sheriff's fees within one hour of arrival at the premises, the debtor is not liable for any further fees. If the amount on the warrant cannot be paid immediately, it is advisable for the defendant to contact the attorney who issued the warrant. Arrangements for down-payments can be made, but not with the Sheriff. The Sheriff is not an agent of the plaintiff, applicant or the creditor. The Sheriff must always act in an impartial way towards the defendant, creditor or any other party involved in a dispute where the sheriff has instructions to act. Receipt On payment to the Sheriff or Deputy they are obliged to give you a receipt by endorsing the amount paid on the original AND the copy of the warrant. You must both sign the endorsement and the copy of the warrant must be handed to you. Should the Sheriff or Deputy misappropriate money you have paid, your interest will be protected by the Fidelity Fund Certificate issued to the Sheriff by the Board for Sheriffs. Execution of Court Orders The Sheriff and Deputies are compelled to execute all legal documents correctly issued by Court. This must be done in a humane and dignified manner, taking your rights into consideration. They may not furnish you with legal advice, but will explain the nature and exigency of the documents to enable you to take the necessary steps to protect your own interests.
Neither the Sheriff or his/her Deputy has discretion to postpone any matter, nor make any arrangements with the Instructing Attorney on your behalf. Regard the Sheriff as a friend, not as an enemy. Do not ignore legal documents, notes or messages left for you by the Sheriff. It is to your advantage to take immediate action.
It is not advisable for any person to ignore a summons or letter served by the Sheriff. It is important, after receiving a document from the Sheriff's office to contact your attorney or the attorney who issued the summons. As the attorney for the plaintiff is the duly authorized representative for the plaintiff, you can contact the attorney and make the necessary arrangements with him. The Board for Sheriffs Is the watchdog on behalf of the public, attorneys and plaintiffs in respect of Sheriffs who are guilty of misconduct. Complaints against the Sheriff, which must be in the form of a sworn affidavit, may be lodged with: The Manager, Board for Sheriffs, PO Box 5454, Cape Town 8000.
Family Violence The sheriff is actively involved in the prevention of family violence. Any person who has a material interest in an intense family conflict may on application before a judge or magistrate in chambers obtain an interdict against a party who acts violently or maliciously. An interdict is served by the sheriff, against payment of the prescribed fees, on behalf of the aggrieved party, on the party or parties who caused the violence. After the interdict has been served by the sheriff the applicant can apply for a warrant of arrest to be issued against the respondent if the respondent fails to act in accordance with the provisions of the interdict. A warrant of arrest is executed by members of the SAP. A respondent arrested in terms of the Prevention of Family Violence Act 133 of 1993 (as amended) shall not be released unless a judge or magistrate orders his release, and shall as soon as possible but not later than 24 hours after the arrest be brought before a judge or magistrate. The judge or magistrate shall enquire into the respondent's alleged breach of the conditions set out in the interdict and may at the conclusion of the hearing, order the release of the respondent from custody or convict the respondent of an offence. A conviction can be either a fine, or imprisonment for a period not exceeding twelve months, or both. Where the offence takes place within the Randburg Magesterial district the Randburg Magistrate Court can be contacted at (011) 789-2600 for the issuing of Family Violence Interdicts.
Institution of Actions In this page we wish to deal mainly with actions intituted in the Small Claims Court and which actions are limited to claims not exeeding R 3000-00. Claims up to R 100 000-00 fall within the jurisdiction of the Magistrate's Court, while claims exeeding R 100 000-00 are adjudicated by the Supreme Court of South Africa and we would strongly advise you to approach an attorney when you need to institute actions in this range. Small Claims Court A written demand delivered fourteen days prior to the issuing of a summons is required before a plaintiff can institute any action against any defendant. Upon production of the prescribed proof that the written demand was delivered to the defendant, and if the Clerk of the Court is satisfied that the plaintiff is a natural person and that his summons complies with the prescribed requirements, the clerk of the court shall set a date and time for the hearing of the action, issue the summons and hand it to the plaintiff or his authorized representative, who shall deliver it to the Sheriff of the court for service on the defendant. At a Small Claims court hearing the presiding Commissioner can question any party to clear up a dispute or ascertain a relevant fact. Any party may call a witness or witnesses to prove his claim, counterclaim or defense. The law of evidence does not apply to proceedings in a Small Claims Court. If a judgment is given against the defendant and the defendant refuses to satisfy the judgement within ten days, a warrant can be issued for the defendant's goods to be attached in execution. A party to any dispute in a Small Claims Court cannot be represented by any person during the proceedings. Therefore, a lawyer is not allowed to act on behalf of a plaintiff or defendant during the proceedings. A company in its capacity as a defendaant must be represented by its duly nominated director. A Close Corporation in its capacity as a defendant must be represented by a duly authorised member of that Close Corporation. Any person who obstructs a sheriff or deputy sheriff in the execution of his duties under the Small Claim Act shall be guilty of an offence and liable upon conviction to a fine not exceeding R2000,00 or imprisonment not exceeding six months, or both. The Small Claims Court for the Randburg Magisterial district is situated at 26 Selkirk Avenue, Randburg. The phone number is (011) 789-2600.
Maintenance Act At the Magistrate's Court there is a division for Maintenance. You do not need an attorney to apply for arrear and due maintenance to be paid in terms of the Maintenance Act. A court date is set and a subpoena to appear in the Maintenance Court is issued which is served by the Sheriff of the Court at a prescribed fee. The return of service can then be collected from such Sheriff. If the respondent does not adhere to the subpoena, a court order will be granted for a warrant of the arrest of the respondent. If the respondent does not appear, then an order will be made by the Court for payment as set out in the order, after which a warrant of arrest can be obtained if the respondent does not make the necessary payments as set out in the Court Order.
Small Claims Court The Small Claims Court was set up by the Small Claims Court Act no 61 of 1984. In terms of this act, any natural person can sue another party for an amount not exceeding R 3 000.00. Companies and Close Corporations are not allowed to sue from the Small Claims Court. The presiding officer at the Small Claims Court is called a Commissioner. Normally it is an advocate, attorney or a magistrate who presides as a Commissioner. Jurisdiction Any Small Claims Court has jurisdiction in respect of delivery or transfer of any property, provided the amount involved does not exceed the amount determined by the Minister from time to time by notice in the Government Gazette. Other matters which can be heard by the Small Claims Court are: Actions for ejectment by the landlord. Actions arising out of a liquid document or a mortgage bond. Actions based on a credit agreement. Matters which are beyond the Small Claims Court jurisdiction are: Granting of a divorce order. Decisions concerning the validity or interpretation of a will or other testamentary document. Decisions concerning the status of any person's mental capacity. Defamation of character actions, or actions where damages are sought in respect of malicious prosecution, wrongful imprisonment, wrongful arrest, seduction, breach of promise to marry or an action where an interdict is sought.