Debt Collection, the Litigation Process
The first step in the debt collection process is normally a letter of demand. This sets out the cause of action on which the demand is based. The other party is then given an opportunity to respond or to comply with the demand. If they comply, no further action is taken.
Should they not comply, the matter can be referred to court. Depending on which court has jurisdiction, the matter will either be heard in the Magistrates Court, the Regional Court or the High Court. Jurisdiction is generally determined by the quantum (amount) of the claim, the domicilium of the Defendant (the debtor) or the area in which the cause of action arose.
Action against the Defendant is instituted by the issuing of summons, which is served on the Defendant by the Sheriff. The Defendant then has ten working days to respond to the summons by filing a Notice of Intention to Defend. If the Defendant does not respond, an Application for Default Judgment can be filed at court; in which case, the court will rule on the matter on the basis of the summons and in the absence of the Defendant.
In the event that the action is defended, pleadings will be filed by the parties. The Defendant may use this pleadings phase to delay the process by filing exceptions to pleadings or raising a special plea with a special defence. In each instance and if necessary, to ensure there are no issues at the hearing of the matter, a reply to the Defendant’s plea will be filed. Once all pleadings have been filed by the parties, the pleadings are considered closed.
Several procedures must be complied with before a matter goes to trial. These include discovery, applying for a trial date, having a pre-trial conference and possibly settlement discussions. Only once all procedures are complied with in terms of the practice manual of the High Court, will the matter be set down for trial. At trial, each party will lead oral evidence, which may be tested under cross-examination by the opposing party, in order for the court to reach a decision.
The debt collection litigation process may involve additional court applications depending on the context. With rental arrears, for example, a Rent Interdict Summons prohibits the removal of property from the leased premises pending a court order while a Section 32 application allows the Sheriff to remove property from the premises, holding it as security until a court order has been granted. Both these applications provide the landlord with a right over the tenant’s assets, otherwise known as a landlord’s hypothec. This is a form of real security against monies owed and provides the landlord with some protection while waiting for judgment to be granted against the debtor.