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the role of the sheriff/messanger of the court
the role of the sheriff/messanger of the court
When is an account handed over to a legal practitioner?
• The creditor usually sends an account to the debtor. (The debtor is the person who owes the money.) If the debtor fails to pay the account after several requests, the creditor may hand the account over to a legal practitioner. If a debtor is behind with the account repayments (or hasn't made any repayments), the creditor may hand the matter over directly to a legal practitioner without sending an account or letters requesting payment.
The Letter of Demand
• The first step taken by a legal practitioner is usually to send a " letter of demand" to the debtor by registered post. The legal practitioner uses the address that the debtor gave to the creditor.
The letter of demand will state the following information:
1. The amount of money owed by the debtor to the creditor.
2. The legal costs payable.
3. An explanation that a summons will be issued without further notification if the debtor fails to respond to the letter within a certain time.
4. An explanation that the debtor may arrange to pay the debt off in instalments, although the creditor may choose whether to accept this form of repayment or not.
• If the debtor does not respond to the letter sent by the legal practitioner, the legal practitioner will issue a "summons", using the physical address (the street address) provided by the debtor to the creditor. If the address is false, the legal practitioner will appoint tracing agents to find out where the debtor lives (or works). Summons can also be served by registered mail.
• The sheriff/messenger of the court will serve the summons at the debtor's home or at the debtor's place of work. The sheriff/messenger of the court does not need to serve the summons on the debtor personally, but may serve it on anyone who is over the age of sixteen and who seems to be in charge of the property.
• If the sheriff/messenger of the court is unable to find anyone on whom to serve the summons, he or she may simply attach it to the front door of the premises.
• The sheriff/messenger of the court does not need permission to enter the premises.
• After a summons is served, the debtor has 3 to 15 days to defend the case. (This is stated on the summons.)
Default Judgment and the Warrant of Execution
• If the debtor still does not respond, the legal practitioner may apply to the court for "default judgment". If the debtor comes to court to defend the matter, the court may decide in favour of the creditor and give judgment at the same time.
• If the court grants the judgment, a "warrant of execution" may be issued at the request of the legal practitioner or the creditor.
Attaching the debtor's property
• The warrant of execution authorises the sheriff/messenger of the court to enter the debtor's premises (even if the debtor is not there) and to attach (or remove) the debtor's property.
• The debtor's property can be attached regardless of where it is - the property does not necessarily have to be at the debtor's home or workplace.
Selling the debtor's property
• The sheriff/messenger of the court must remove the property to be sold "in execution". Only the sheriff/messenger of the court or his deputy may remove the debtor's property.
• After the legal practitioner receives a "notice of attachment" from the sheriff/messenger of the court, he or she places an advertisement in a local newspaper to announce that the debtor's property is going to be sold.
• The sheriff/messenger of the court must sell the debtor's property on auction to the highest bidder, even if the highest bid is much less than the property is worth.
Appointment of a sheriff or a messenger of the court
• A sheriff/messenger of the court is appointed by the Minister of Justice and is an independent officer of the court.
Authorisation and Identification
Only the sheriff/messenger of the court, or his deputy, is authorised to serve and execute processes (documents) of court such as summonses, warrants and orders which a court has issued.
A debtor may, at any time, request the sheriff/messenger of the court to identify himself or herself. However, when carrying out a court order, the sheriff/ messenger of the court may enter the premises of a debtor even when tfie debtor is not present. The sheriff/messenger of the court may use any necessary means - this right extends to opening locked doors an the premises.
• The sheriff/messenger of the court is compelled to execute all process of court. This means that he or she (or his or her deputy) may not postpone any matter.
• The sheriff/messenger of the court may not make any arrangements with the legal practitioner on behalf of the debtor. However, the debtor may contact either the creditor or his legal practitioner at any stage of the collecting procedure and offer to pay the debt, in which case the execution can be cancelled by the legal practitioner of the creditor.
•If the debtor offers to pay the debt in instalments, the creditor is not obliged to accept the offer.
• As soon as a matter is handed over to a legal practitioner, the debtor is also liable for the legal costs, a collection fee of 10% (subject to a maximum of N$750.00 per payment) and interest charged at the legal rate of 20% per annum.
Other process of court
The creditor, or his legal practitioner, has other options available to obtain payment from a debtor after judgment has been granted against the debtor.
• The creditor may apply for an "emolument attachment order" in terms of which money is deducted every month from the debtor's salary until the debt, the legal costs and the interest have been paid in full.
• A creditor may apply for a "garnishee order" to allow the creditor to attach a debt or an amount owed to the debtor by a third party. Money in the debtor's bank account can be attached in this way.
Interference with the duties of the sheriff/messenger of the court
• Any person who interferes with the duties of the sheriff/messenger of the court in any of the following ways will be guilty of a criminal offence and if convicted, may be sentenced to a period of imprisonment:
1. Refusing to allow the sheriff/messenger of the court to enter the premises.
2. Refusing to accompany the sheriff/messenger of the court to the premises in order to point out the debtor's belongings.
3. Hiding any of the debtor's possessions.
4. Removing any of the debtor's possessions after they have been attached.
If you are a person who suffered injuries caused by a motor vehicle or in a motor vehicle accident, you are in all probability entitled to claim compensation from the Motor Vehicle Accident Fund. The Motor Vehicle Accident Fund has been specially established to enable persons injured in a motor vehicle accident, to claim compensation from the Fund instead of claiming it from the drivers of the cars involved in the accident.
The compensation you are entitled to claim does not only relate to the payment of your hospital and medical costs but also includes:
(1) Compensation for the pain and suffering you have had as a
result of the injuries and medical treatment therefore.
(2) Compensation for temporary or permanent disability.
(3) Compensation for disfigurement.
(4) Compensation for loss of the enjoyments of life.
(5) Compensation for lass of income, the lass of earning
capacity or the lass of support.
Only a qualified legal practitioner will be able to advise you what claims in your specific case apply and how much you are entitled to Claim under each heading, and only he (or she) is competent to assist you to file a Claim with the Motor Vehicle Accident Fund in the correct and prescribed manner.
You should thus immediately make contact with a qualified legal practitioner to assist you in formulating and submitting your Claim.
If you do not have a legal practitioner you can contact:
Law Society of Namibia
First Floor, Namlex Chambers, 333 Independence Avenue
P. 0. Box 714
Telephone numbers: +264-61-230263/088
who will furnish you with a list of qualified legal practitioners who are trained in filing third party claims.
The Law Society is not entitled to recommend any one specific legal practitioner, but will supply you with a list of qualified legal practitioners who do Motor Vehicle Accident Claims. The list will include experienced and less experienced legal practitioners and it is recommended that you make your own enquiries before deciding on a specific practitioner.
lt is also recommended that you clear up with the practitioner of your choice the amount of fees he will charge you before you give him the mandate to represent you. Also ensure that the practitioner agrees to refer any settlement figure to you for final approval before he accepts same on your behalf.
Since the manner in which the accident occurred is important for the filing of the claim you must immediately try and obtain the following information (If due to your injuries you are unable to gather this information, try and get a member of your family or friends to do so):
(i) The name, address and telephone number of the driver of the motor vehicle which caused the accident or caused your injuries.
(ii) The registration number of the vehicle which caused the accident and the vehicle in which you were traveling.
(iii) The names of all witnesses who saw the accident.(iv) Photos of the cars involved and of the scene of the accident.
(v) The date and time of the accident.
(vi) The police station (and name of the policeman) to whom the accident was reported.
The money accumulated in the Motor Vehicle Accident Fund originates from a levy raised on the sale of each liter of petrol and diesel in Namibia. In maintaining this system the State has thus specifically created a payment structure to ensure that innocent victims of accidents are able to get a fair compensation for the damages they have suffered as a consequence of a motor vehicle accident and that all medical expenses are paid for in full to ensure that the best medical and hospital treatment is given to accident victims.
The pamphlet has been issued by the Law Society of Namibia for the benefit of motor vehicle accident victims.
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