The warrant of execution is the District Court’s bailiff. It is the most used enforcement tool because it needs no further hearing, and the Act regulates every step from seizure to sale.
Issue
Where an order of a Court requires the payment of a sum of money or costs, the sum is recoverable, without the direction of the Court making the order, by execution against the goods and chattels of the person liable, and a warrant of execution may be issued for the purpose of levying that sum.
The Magistrates’ Manual notes that the Act does not expressly say the creditor must apply, but that this is implicit, and that no notice to the debtor is required before the warrant issues. The forms are 52 (on an order for money) and 53 (for costs on a dismissal), and Schedule 3 prescribes a fee for the warrant and for executing it. Section 172 lets the Court postpone the warrant on conditions, and section 165(2) delays it while instalments are being paid.
How it is executed
A warrant of execution shall be executed by or under the direction of a police officer or another officer named in the warrant, by a seizure and sale of the goods and chattels of the person against whom it is issued. Except with the debtor’s written consent, seized goods shall be sold by public auction, with at least five days between the levy and the sale and due public notice, except perishables, which may be sold after 24 hours. The goods shall be sold within the period fixed by the warrant or, if none, within 14 days after the levy, unless the sum and the charges of execution are sooner paid. Where household goods are seized, they shall not be removed from the house until the day of sale without written consent, but enough to satisfy the execution shall be impounded by affixing a conspicuous mark.
| Day | Step |
|---|---|
| 0 | Levy: the officer enters, seizes and, for household goods, marks the items impounded |
| 0 to 5+ | Public notice of the sale; the debtor may pay the sum plus costs to stop the sale (s 174(12)) |
| 5 or later | Sale by public auction |
| By day 14 | Sale must be completed unless the warrant fixes another period |
| After sale | Officer deducts the costs of execution, pays the sum to the Clerk, returns any surplus to the debtor (s 174(11)); account sent to the Clerk (s 174(10)) |
Section 174(13) and (14) let the officer leave the premises after the levy and return at reasonable times without being taken to have abandoned the seizure. Removing marked goods or defacing the mark is an offence under section 174(7).
What cannot be seized
The wearing apparel and bedding of the defendant and his family, and the tools and implements of the defendant’s trade, the whole not exceeding in value the sum of K200.00 shall not be taken under a warrant of execution.
The figure is old and the protection correspondingly thin. Property of the State cannot be seized at all under section 13 of the Claims By and Against the State Act, and goods belonging to someone other than the debtor are dealt with under sections 178 and 179. See exempt goods and adverse claims.
Money, cheques and securities
Where a warrant directs a sum to be levied against goods and chattels, any money or bank notes belonging to the debtor may be seized, taken and applied towards satisfaction but need not be sold; and any cheques, bills of exchange, promissory notes, bonds or securities for money may be seized and held as security, and when payable the creditor may demand payment and sue on them in the debtor’s name.
Where the money goes
Section 176 requires the warrant to order the officer to pay the amount levied to the Clerk of the Court that made the order. The Clerk pays the creditor, recording the payment in the Suitors’ Cash Book under regulation 12. Under section 174(11) the officer may deduct the costs and charges actually incurred, within the scale in Schedule 3 Part II, and section 174(8) makes it an offence for an officer to retain or exact greater charges or make an improper charge, with a power under section 174(9) to order repayment.
Stopping the sale
Section 174(12) provides that if the debtor pays or tenders the sum in the warrant, or produces the Clerk’s receipt for it, and pays the costs of execution to date, the officer shall not execute the warrant. A debtor who disputes the order can apply under section 25 or section 159 to set it aside and ask for the warrant to be stayed, or lodge an appeal and apply to the National Court for a stay. Under section 227 an appeal not entered for hearing within 40 days does not prevent enforcement. See appeals.
Fines against corporations
A fine imposed on a corporation is enforced under section 167(2) by warrant of execution against the company’s goods.
Limits of the remedy
A warrant of execution reaches only goods and chattels. It cannot be levied on land, on a State Lease, or on money owed to the debtor by someone else; the last is reached by attachment under section 182. Where the debtor has nothing to seize, the creditor’s options are the oral examination under section 181 to find assets, a garnishee, or, if the debtor has means and will not pay, the commitment procedure under section 192. See enforcement generally.
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.