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Summary

Summary Chapter 22

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Detailed summary of chapter 22 from the fundamental principles of civil procedure textbook

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CHAPTER 22 – EXECUTION
Introduction
GENERAL:

Obtaining a judgment is not necessarily the final step in
the litigation process:
 Most cases the losing party will comply with the
judgment of the court
 BUT - There is an additional phase when a judgement
debtor is recalcitrant and is unwilling to comply with
the judgment

Terms:
 Judgment creditor = party in whose favour the
judgment is granted
 Judgment debtor = party against whom judgment is
granted

Must distinguish between 2 types of judgments:
 Judgment to perform an act
 Judgment to pay an amount of money

JUDGMENT TO PERFORM AN ACT:

Ie: When the court orders a judgment debtor to perform
an act
 = A judgment ad factum praestandum

Eg of an act = to deliver certain property

Remedy available to the judgment creditor if judgment
debtor fails to comply with the judgment:
 Can apply for the committal of the JD to jail for
contempt of court

JUDGMENT TO PAY AN AMOUNT OF MONEY:

Ie: When the court orders a judgment debtor to pay an
amount of money
 = A judgment ad pecuniam solvendam

, Eg of an act = to pay damages arising from a claim for
delict

Remedy available to the judgment creditor if judgment
debtor fails to comply with the judgment:
 JD can follow a procedure known as EXECUTION
EXECUTION:

Execution procedures:
 Provides a mechanism by which court orders can be
enforced
 Ensure the effectiveness and integrity of the process
of judicial decision-making

Regulated by the Rules of Court

Execution Procedures
WHAT:

Generally the process of execution entails:
 The attachment and sale by PUBLIC AUCTION
 By the sheriff
 Of the movable or immovable property of the JD
 In order to realise money and satisfy the money
judgment

This procedure amounts to an individual debt-collecting
procedure as it can only operate effectively only where
the debtor has sufficient assets to meet the amount of
the judgment debt

Insolvent debtor:
 This occurs when the JD cannot pay the judgment
debt and has no executable assets
 JD will then have to revert to other debt-collection
devices
 Examples:
 Application for the sequestration of the JD’s estate
(if a natural person) in terms of the Insolvenct Act

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