The need to clarify the sheriff’s duties when executing writs of execution that could indicate the debtor’s insolvency
Authors Clement Marumoagae & Kgosi Mokgoetsi
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand, LLB LLM Diploma in Corporate Law (Wits) LLM (NWU) Diploma in Insolvency Law and Practice (UP); Associate, BA Hons (UFS) LLB (Wits) LLM Candidate (Wits). Lecturer, School of Law, University of the Witwatersrand
Source: South African Mercantile Law Journal, Volume 31 Issue 2, 2019, p. 298 – 320
This paper examines the duties of the sheriffs when executing writs of execution that could potentially indicate debtors’ insolvency. It demonstrates that the law is not clear regarding the sheriff’s duty to search for disposable property and the duty of care in relation to the manner in which the nulla bona returns should be prepared. While section 8(b) of the Insolvency Act clearly requires the debtor to indicate disposable property upon being requested to do so, nonetheless, the lengths to which the sheriff should go in order to satisfy him/herself that there is insufficient disposable property to satisfy the judgment debt if no disposable property has been indicated are not clear. This paper advances the argument that there is a need to provide legislative clarity on the duties of sheriffs when executing writs of execution that have the potential of leading to the debtor’s insolvency.