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

Part II : Civil Matters

Chapter VIII : Recovery of Debts

57. Admission of liability and undertaking to pay debt in instalments or otherwise

 

(1) If any person (in this section called the defendant) has received a letter of demand or has been served with a summons demanding payment of any debt, the defendant may in writing—
(a) admit liability to the plaintiff for the amount of the debt and costs claimed in the letter of demand or summons or for any other amount;
(b) offer to pay the amount of the debt and costs for which he or she admits liability, in instalments or otherwise;
(c) undertake on payment of any instalment in terms of his or her offer to pay the collection fees for which the plaintiff is liable in respect of the recovery of such instalment; and
(d) agree that in the event of his or her failure to carry out the terms of his or her offer, the plaintiff shall, without notice to the defendant, be entitled to apply for judgment for the amount of the outstanding balance of the debt for which he or she admits liability, with costs, and for an order of court for payment of the judgment debt and costs in instalments or otherwise in accordance with his or her offer,

and if the plaintiff or his or her attorney accepts the said offer, he or she shall advise the defendant of such acceptance in writing by registered letter.

 

(1A) The offer referred to in subsection (1)(b) must—
(a) set out full particulars of the defendant’s—
(i) monthly or weekly income and expenditure, supported where reasonably possible by the most recent proof in the possession of the defendant;
(ii) other court orders or agreements, if any, with other creditors for payment of a debt and costs in instalments; and
(b) indicate the amount of the offered instalment.

 

(2) If, after having been advised by the plaintiff or his or her attorney in writing that his or her offer has been accepted, the defendant fails to carry out the terms of his or her offer, the court may, upon the written request of the plaintiff of his or her attorney and subject to subsection (2A)—
(a) enter judgment in favour of the plaintiff for the amount or the outstanding balance of the amount of the debt for which the defendant has admitted liability, with costs; and
(b) order the defendant to pay the judgment debt and costs in specified instalments or otherwise in accordance with his offer, and such order shall be deemed to be an order of the court mentioned in section 65A(1).

 

(2A) The written request referred to in subsection (2) must be accompanied by—
(a) the summons or if no summons has been issued, a copy of the letter of demand;
(b) the defendant’s written acknowledgment of liability and offer;
(c) all the particulars and documentary evidence referred to in subsection (1A), in order for the court to be apprised of the defendant’s financial position at the time the offer was made and accepted;
(d) a copy of the plaintiff’s or his or her attorney’s written acceptance of the offer and proof of postage thereof to the defendant; and
(e) an affidavit or affirmation by the plaintiff or a certificate by his or her attorney stating in which respects the defendant has failed to carry out the terms of his or her offer and, if the defendant has made any payments since the date of the letter of demand or summons, showing how the balance claimed is arrived at.

 

(2B) The court—
(a) may request any relevant information from the plaintiff or his or her attorney in order for the court to be apprised of the defendant’s financial position at the time judgment is requested;
(b) must act in terms of the provisions of the National Credit Act and the regulations thereunder dealing with over-indebtedness, reckless credit and affordability assessment, when considering a request for judgment in terms of this section, based on a credit agreement under the National Credit Act;
(c) may, if the defendant is employed, and after satisfying itself that it is just and equitable that an emoluments attachment order be issued and that the amount is appropriate, authorise an emoluments attachment order referred to in section 65J; and
(d) may, notwithstanding the defendant’s consent to pay any scale of costs, make a costs order as it deems fit.

 

 

(3) When the judgment referred to in subsection (2) has been entered and an order made, and if the judgment debtor was not present or represented when the judgment was entered and the order made, the judgment creditor or his or her attorney must, within 10 days after it has received knowledge that judgment has been entered and an order made, advise the judgment debtor by registered letter of the terms of the judgment and order.

 

(4) Any judgment entered in favour of the plaintiff under subsection (2) has the effect of a judgment by default.

 

(5) The provisions of this section apply subject to the relevant provisions of the National Credit Act where the  request for judgment is based on a credit agreement under the National Credit Act.

 

[Section 57 substituted by section 5 of Notice No. 769, GG 41017, dated 2 August 2017

 

 


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