DOES SOMEBODY OWE YOU MONEY?

Starting the process

The debt collection process starts with sending a registered letter of demand to the person who owes you money (the debtor). This letter can be sent either by you or by the attorneys instructed by you. If an attorney is appointed to send the letter, the attorney’s costs can also be claimed as a part of the letter of demand.

The letter of demand specifies the claim amount (the debt),  information necessary to make it clear as to what the claim refers to and demands payment of the debt on or before a stipulated date (the date of demand).

If the debtor admits the claim

If, after receiving the letter of demand, the debtor admits that he/she owes you the money but cannot afford to pay the debt on or before the date specified in the demand or requests to pay the debt off in instalments, and you accept the instalment arrangement, you can request that the debtor sign both an Acknowledgment of Debt and a Consent to Judgment.

  • The Acknowledgment of Debt sets out the terms of the instalment arrangement and the consequences of defaulting on the arrangement;
  • The Consent to Judgment is a document that is signed by the debtor whereby the debtor agrees to judgment being granted against him/her in the event of his/her defaulting on the arrangement.

If the debtor defaults on the arrangement, you or your  attorneys would be entitled to, without prior notice to the debtor, deliver to the Court the signed acknowledgment of debt, the signed consent to judgment and an affidavit setting out the amount owing by the debtor and request that the Court grant judgment against the debtor.

If the debtor denies the claim

If, after receiving the letter of demand, the debtor ignores or denies the claim, you or your attorneys would then be entitled to issue Summons against the debtor for the recovery of the money owing.

If the debtor does not defend the Summons within the allocated time frame, you can apply for default judgment against the debtor and if granted you can apply for a warrant of execution to sell the debtors movable property in order to recover the money owing to you.

If the debtor defends the Summons and you are of the opinion that the debtors defence is merely a means to delay the proceedings as he/she does not have a good defence, you can apply for summary judgement against the debtor.

  • If the application for summary judgment is successful and judgment is granted against the debtor you can apply for a warrant of execution to sell the debtors movables.
  • If the application for summary judgment is unsuccessful the debtor would be entitled to defend the claim and the matter would proceed to trial.

It is advisable to seek the advice and guidance of an attorney, who has knowledge of the correct procedure, to assist you in recovering your money.

For more information on the debt recovery process or any other legal related queries please contact us at 033 392 8000

By: Jenna Kate Freeguard – Attorney, Litigation

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