An order for K6,000 against a person earning K400 a fortnight is only worth anything if it is broken into pieces the debtor can actually pay. Section 165 lets the District Court do that, and it is used in most orders against individuals.
The power
(1) Where, by a conviction or order, a fine or sum of money or costs is or are ordered to be paid, the Court may do all or any of the following: (a) allow time for the payment; and (b) direct the payment to be made by instalments; and (c) direct that the person liable to pay is at liberty to give security for the payment.
(2) Where payment is directed by instalments, the instalments shall be paid to the Clerk or to such other person as the Court orders and, if default is made in the payment of an instalment, the same proceedings may be taken to recover the amount then remaining due as if an order for payment by instalments had not been made.
The section applies to fines and costs on a conviction as well as to civil orders. The Magistrates’ Manual contrasts it with the common law rule that a lump sum judgment is payable at once: the National Court has departed from that only through its inherent powers, but the District Court has express statutory jurisdiction.
Fixing the instalments
| Matter | Why |
|---|---|
| The debtor’s income and outgoings | Regulation 43 lets the Court examine the debtor on oath about his means at the moment the order is made |
| The creditor’s position | The Manual advises considering whether the debtor’s ability to pay may diminish over time and so prejudice the creditor |
| The size of the debt against the period | An order that will take ten years to satisfy is unlikely to be honoured |
| Security | Section 165(1)(c) allows the debtor to give security in Form 11 under regulation 39, which is then enforceable under Part XIV |
| Clarity | The Manual insists the terms be spelt out very clearly, with amounts and dates, so the debtor cannot frustrate the order |
The order should state each instalment, its due date, and to whom it is paid. Regulation 14 requires the Clerk to enter every instalment order in the Instalment Book, with each payment as it is made, and regulation 15 requires the Clerk to account for sums paid. A debtor should always pay through the Clerk and keep the receipts.
Default in an instalment
Section 165(2) is the creditor’s protection. One missed instalment allows proceedings for the entire remaining balance as if no instalment order existed: a warrant of execution under section 173, a garnishee under section 182, or, for a fine, the warrant of commitment under section 168. The Manual states the rule plainly: on default the entire remaining amount becomes due and may be enforced as a lump sum. A debtor who cannot meet an instalment should apply to the Court before the due date to vary the order; the Court’s power under section 172 to postpone a warrant on conditions gives it room to do so.
Fines by instalments
For a fine, the Court fixes the default term of imprisonment under section 168 at sentence, and instalments under section 165 delay the warrant of commitment. Section 202 reduces the default term in proportion to what has been paid if the warrant eventually issues, and section 203 secures release on payment of the balance. See unpaid fines.
Restitution and compensation
Section 421(2) of the Criminal Code expressly allows restitution of the value of property on a Schedule 2 offence to be paid “in one sum or by such instalments and at such times as the Court thinks fit”, with its own default scale. Compensation under the Criminal Law (Compensation) Act is likewise commonly ordered by instalments, with the debtor’s means being one of the statutory factors. See compensation orders.
Orders against the State
Section 12(2) of the Claims By and Against the State Act provides that a court giving judgment against the State may not include any order as to time or method of payment. The State pays under section 14 of that Act, and section 14(4) lets the Departmental Head responsible for finance pay by instalments in his own discretion. See suing the State.
Instalments by agreement
Parties often agree instalments after the order. An agreement is a contract and does not by itself stop enforcement; the creditor could in theory still execute. The safe course is to have the agreement embodied in an order under section 165, which section 22B(3) also allows where it results from mediation. A creditor who accepts instalments informally and then executes for the whole may face an application under section 172 to postpone the warrant, and costs.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.