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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.
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