South Africa: Recovery Of Judgment Debts From Organs Of State – When Is It Appropriate To Issue A Writ Of Execution?

Obtaining a favourable judgment against an Organ of State marks a day of success and promotes the feeling that justice has been served. However, recovering the judgment debt can be cumbersome for the judgment creditor as it is unique in comparison to recovering judgment debts from private institutions.

When recovering judgment debt from private institutions, one merely need to satisfy the following:

1. A copy of the duly stamped and signed court order must be served on the unsuccessful party's attorneys.
2. A letter of demand must be addressed to the unsuccessful party's attorneys requesting payment within the period stipulated in the court order, usually 14 court days.

Should the private institution, still fail to make payment of the judgment debt, the judgment creditor can immediately issue a writ of execution ("writ") to the value of the judgment debt. It is normally at this stage that payment will be made. In some circumstances the sheriff will be required to attach assets and auction them to recover the judgment debt.

Recovering a judgment debt against an Organ of State, requires the judgment creditor to ensure that it complies with Section 3 of the State Liability Act 14 of 2011, as amended ("the Act"). This provision provides strict requirements that must be satisfied before the Registrar will issue a writ in an attempt to recover the judgment debt.

Section 3(2) of the Act requires the state attorney or attorney of record appearing on behalf of a department to furnish the duly signed and stamped court order to the executive authority, accounting officer and treasury within 7(seven) days of the order becoming final. Section 3(3) of the Act further states that the accounting officer must make payment of the judgment debt within 30 (thirty) days of the order becoming final, or within a timeframe agreement upon with the judgment creditor. These provisions are seldomly complied with, and if they are, the successful party is unaware of same.

In terms of sections 3(4) and (5) the Act, the judgment creditor will have to satisfy the following before issuing a writ as provided for in Section 3(6) of the Act:

1. Serve the final court order on the executive authority, the accounting officer of the department concerned, the relevant treasury and the state attorney or attorney of record appearing on behalf of a department, once 30 (thirty) days has lapsed since the court order was handed down.
2. Monitor receipt of the judgment debt, which should be paid within 14 (days) or a date agreement upon, from the date of service of the court order as mentioned above.

Only once the above has been complied with and should payment still not have been received, the judgment creditor may approach the Registrar to issue a writ for the recovery of the judgment debt. Copies of proof that the above provisions have been adhered to must be attached to the writ in order for the Registrar to issue the writ.

It is likely that it would take longer to recover judgment debts from organs of state, in comparison to private institutions. However, if the judgment creditor adheres to the provisions of the Act, as laid out above, it will successfully recover the outstanding judgment debt(s).