The Supreme Court of Appeal in the case of Bafana Finance Mabopane v Makwakwa [2006] SCA 49 (RSA) has delivered its judgment.
In this case a micro-lender tried to enforce a clause in his loan agreement with a debtor which:
a) the debtor waived his right to apply for an Administration Order in terms of Section 74 of the Magistrate’s Court Act; and
b) excludes the micro-lenders loan from any Administration order the debtor may obtain.
An administration order is a legal solution in terms of Section 74 of the Magistrates Court Act for the poorer …

The right of a creditor to realise the property of its debtor without first obtaining the sanction of the court is called parate executie in our law.
This right has now been challenged by the Constitutional provisions of Section 34 of the Constitution, which provides that:
‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’
Initially the case law on the subject seemed to suggest that …

The right of a creditor to realise the property of its debtor without first obtaining the sanction of the court is called parate executie in our law.
This right has now been challenged by the Constitutional provisions of Section 34 of the Constitution, which provides that:
‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’
Initially the case law on the subject seemed to suggest that …

The Business Report reports that the Department of Trade and Industry will soon outlaw the use of fake summons, warrants of execution and other legal documents by debt collectors and creditors. This follows on recommendations by the by the department of trade and industry’s consumer affairs committee.
This practice used by some unscrupulous debt collectors, confuses debtors into to thinking that legal proceedings have been instituted against them when they have not. Tanya Woker, the chairman of the consumer affairs committee, said, “…it was an unfair business practice for any entity …

I have in all my advising and seminars advocated a proactive credit control policy for creditors. In other words – based on the principle of the “squeaky wheel gets the oil” – the creditor maintains a defined, concerted and certain credit control procedure with their debtors and thereby ensures that they get timous payment of their account. My chant being “Make yourself a priority creditor in your debtor’s life!”
But is there the possibility that creditors can over-step the mark and alienate good clients? I believe that is the case and …

One of my bugbears over the years has been the ineffectiveness of the personal liability of members of deregistered close corporations provisions of the Close Corporation Act (Section 26). Such much so that I have written numerous articles/letters about in various publications including the official attorneys magazine, De Rebus.
The gist of my rants were that while when one is faced with a situation where you are the creditor of a close corporation which has ceased trading with no real assets one can apply for the deregistration of the close corporation …

The term “garnishee order” has caused some confusion in South African legal debt recovery. The average debtor and salary department mistake an emoluments attachment order for a garnishee order.
An emoluments attachment order is an order granted in terms of Section 65J of the Magistrates Court Act in terms of which an employer ( also referred to as a garnishee, hence the confusion) is ordered to make month deductions from a debtor’s salary and pay this to the judgment creditor or their attorneys.
The Garnishee order on the other hand is in …