Picture a scenario where XYZ Components supplies R120 000 worth of specialised parts to a customer on 30-day terms. Ninety days later, repeated promises to pay have come to nothing, and XYZ faces its own month-end liabilities. A judgment for the full amount is eventually obtained, but the customer ignores the judgment and does not pay. Further to this he owns no attachable assets worth seizing. Rather than spend more on a warrant of execution and Sheriff cost like storage and auction fees, XYZ turns to Section 65 of the Magistrates' Courts Act 32 of 1944. Within weeks, a court-ordered deduction from the debtor's salary starts flowing into XYZ's account – steady, predictable and almost fee-free.
What is a Section 65 Enquiry?
A Section 65 enquiry is a post-judgment hearing where the magistrate examines the debtor's income, assets and liabilities. The aim is to tailor a repayment plan that is "just and equitable" while still honouring the judgment debt. Failing to attend can lead to arrest, so debtors rarely ignore the summons.
How the Process Works
- Serve a Section 65A Notice. Once judgment is granted and remains unpaid, the creditor files a Form 40 notice. The clerk signs and the sheriff serves it, compelling the debtor to appear on a stated date.
- Conduct the Financial Enquiry. In court, the debtor discloses earnings, living expenses and assets under oath. The magistrate assesses affordability and may question evidence on oath.
- Secure an Emolument Attachment Order. If the debtor earns a regular salary, the court can order the employer to deduct a fixed monthly amount and pay it to the creditor until the judgment, interest and costs are cleared. Employers who ignore an EAO risk contempt proceedings.
- Follow-Up Reviews. Either party may return to court if circumstances change, ensuring the instalment remains fair yet effective.
Why Choose Section 65 Over a Warrant of Execution?
- Lower upfront cost – No sheriffs' storage or auction fees.
- Prompt cashflow – Deduction at source reduces defaults.
- Debtor compliance – The threat of arrest for non-attendance encourages honest disclosure.
- Flexibility – Instalments can be adjusted if the debtor's financial position shifts.
Practical Pointers for Creditors
- Gather income proof early – Payslips or bank statements strengthen the case for an EAO.
- Calculate a realistic instalment – Courts favour repayment plans that leave the debtor with enough to live on, so be prepared with sound arithmetic.
- Monitor payments – Reconcile employer remittances monthly and act swiftly on any shortfall.
- Consider settlement – Even with an EAO, a lump-sum discount can close the matter faster and save administration.
Section 65 proceedings remain an underrated but potent debt-recovery tool, especially for modest judgments where traditional execution costs eclipse the debt itself.
When approached with accurate financial data and firm procedural footing, a Section 65 enquiry can transform a paper judgment into steady, bankable cashflow – all without inflating legal spend or waiting for the next auction date.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
