Magistrates' Courts Act, 1944 (Act No. 32 of 1944)

Part II : Civil Matters

Chapter IX : Execution

65D. Determination of judgment debtor's financial position
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(1)On the appearance before the court of the judgment debtor or, if the judgment debtor is a juristic person, the director or officer of the juristic person summonsed as the representative of the juristic person or in his or her personal capacity, on the return day of the notice referred to in section 65A(1) or (8)(b), in pursuance of his or her arrest under a warrant referred to in section 65A(6), or on any date to which the proceedings have been postponed, the court in chambers shall, subject to the provisions of subsection (2) of this section, call upon him or her to give evidence under oath or affirmation on his or her financial position or the financial position of the juristic person, as the case may be, and the court shall permit the examination or cross-examination of the judgment debtor or the said director or officer on all matters relevant to the judgment debtor's financial position and his or her ability to pay the judgment debt, and the court shall receive such further evidence as may be adduced either orally or by affidavit or in such other manner as the court may deem just, by or on behalf of either the judgment debtor or the judgment creditor, as is material to the determination of the judgment debtor's financial position and his or her ability to pay the judgment debt, and for the purposes of such evidence witnesses may be summoned in the manner prescribed in the rules.

 

(2)The court may at any time in the presence of the judgment debtor or the said director or officer postpone the proceedings to such date as the court may determine.

 

(3)When postponing the proceedings under subsection (2) the court—
(a)shall inform the judgment debtor or the director or officer concerned of the provisions of section 65E(1)(c);
(b)may order the judgment debtor or the director or officer to produce such documents as the court may specify at the hearing on the date determined by the court; and
(c)may determine such conditions as it may deem fit.

 

(4)In determining the ability of the judgment debtor to pay the judgment debt in instalments or otherwise the court shall take into consideration—
(a)in the case of a judgment debtor who is a natural person, the nature of his income, the amounts needed by him for his necessary expenses and those of the persons dependent on him, and for the making of periodical payments which he is obliged to make in terms of an order of court, agreement or otherwise in respect of his other commitments as disclosed in the evidence presented at the hearing of the proceedings; or
(b)in the case of a judgment debtor who is a juristic person, the amounts required by such juristic person to meet its necessary administrative expenses and for the making of periodical payments which it is obliged to make in terms of an order of court, agreement or otherwise in respect of its other commitments as disclosed in the evidence presented at the hearing of the proceedings.

 

(5)In determining the ability of the judgment debtor to pay the judgment debt in instalments or otherwise the court may, in its discretion, refuse to take account of the periodical payments that a judgment debtor has undertaken to make in terms of a credit agreement, as defined in section 1 of the National Credit Act, 2005 (Act No. 34 of 2005) for the purchase of goods which have not been exempted from seizure in terms of section 67 or which cannot, in the opinion of the court, be regarded as the judgment debtor's household requirements.