Magistrates' Courts Act, 1944 (Act No. 32 of 1944)RegulationsRules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa38. Security by judgment creditor |
| (1) | Where the sheriff is in doubt as to the validity of any attachment or contemplated attachment, he or she may require that the party suing out the process in execution shall give security to indemnify him or her. |
| (2) | Unless the summons commencing the action has been served upon the defendant personally or he or she has delivered notice of intention to defend or notice of attachment has been given to him or her personally— |
| (a) | if any property corporeal or incorporeal is attached in execution, the execution creditor shall, at least 10 days before the day appointed for the sale of such property give security to the satisfaction of the sheriff for the payment to the execution debtor if such attachment be set aside of any sum which the execution debtor may in law be entitled to recover from the execution creditor for damages suffered by reason of such attachment or of any proceedings consequent thereon; and if security be not given the attachment shall cease to have effect: Provided that the execution debtor may by endorsement to that effect on the warrant of execution dispense with the giving of security under this rule; or |
| (b) | if moneys are received by the sheriff under any form of execution otherwise than as the proceeds of the sale in execution of property in respect of the attachment of which security has been given in terms of paragraph (a), such moneys shall not be paid to the execution creditor until he or she has given security for the restitution of the full amount received by the sheriff if the attachment be thereafter set aside: |
Provided that the execution debtor may in writing over his or her signature dispense with the giving of such security.
| (3) | The prescribed fee for security given under this rule shall without taxation be recoverable as part of the costs of execution. |
| (4) | Any surety bond or other document of security given in terms of this rule may be sued upon by the execution debtor without formal transfer thereof to him. |
| (5) | This rule shall not apply where the party suing out the process in execution or the execution creditor is a Minister, a Deputy Minister or a Provincial Premier, in his or her official capacity, the State or a provincial government. |