Debt Collection

THE DEFINITION OF DEBT COLLECTION

Although it may seem that the term is fairly self-explanatory, the origins of a debt collection action or application, as the case may be, can be very vast and quite varied in practice.

In addition to the traditional debtor/creditor relationship which is empirically riddled with litigation, remedies available may extend to several other ancillary claims, such as interest (which rate is calculated at 9% per annum, unless otherwise specified contractually) which is calculated once the legal process has been initiated, specified damages, both current and future and even in certain instances, restoration.

The correct remedy to be chosen, together with all alternative and/or ancillary options shall be gladly explained to you by our team of specialists and the most prudent and efficient course of action shall thusly be elected in this manner.

 

  1. THE DEBT COLLECTION PROCESS

At AH Stander Attorneys, we strive to take the most effective and efficient course of action in the recovery of debts owed. The reason for this is two-pronged. This approach not only reduces litigation costs for the client but is also expeditious and delivers tangible results.

     2.  THE LETTER OF DEMAND

As was stated by the Supreme Court of Appeal in the matter of Nedbank v The National Credit Regulator, the initiation of legal proceedings commences with the delivery of a letter of demand. A letter of demand is prudently sent when the National Credit Act does not apply (although this may not always be necessary), yet becomes essential should the mentioned Act apply.

What makes AH Stander Attorneys so unique is that the firm, in association with Network Telex, ensures that the letters of demand are hand delivered to the client and, in so doing, eschews the possibility of the letter being misplaced by the South African Postal Services, which would be the case if the letter was sent by registered post, as is the more common practice. Not only is this mode of delivery more reliable, for obvious reasons it is much faster.

3.  SUMMONS

Should the letter of demand not evoke a reaction, the collection process shall turn to the courts for assistance. A Summons, together with a tailored Particulars of Claim shall serve as the ‘Central Nervous System’ of the claim.

In most cases, a collections claim is a liquid amount (meaning it can be proven by a statement of account and is a specified sum of money owed). This makes the cause of action and claim much more succinct and likely to succeed.

Once a Summons has been issued by the relevant court, it shall be served by a registered Sheriff of the High Court on the debtor at the said party’s chosen address.

     4.  DEFAULT JUDGMENT

Should the debtor not enter an appearance to defend the action within 10 days from service of the Summons, an Application for Default Judgment shall be lodged with the court.

     Once this order has been granted, the litigation process is completed.

     5.  SUMMARY JUDGMENT

Should the debtor enter an appearance to defend the action within 10 days from service of the Summons, an Application for Summary Judgment shall immediately be served. The matter will then be argued in open court by one of our experts or the appointed counsel.

Once again, when this order has been granted, which in all likelihood would be the case, the litigation process is completed.

     6.  EXECUTION

Several remedies exist so as to satisfy the judgment debt obtained. Said remedies may include attaching and selling the movable property of the debtor, summoning the debtor to attend court to explain his financial position and to undertake to pay monthly payments and, if applicable, the sale of a debtor’s immovable property.

Each option has its merits and shall be prudently considered by our team of experts so as to ensure the most efficient manner to recover the full outstanding debt, including the interest accrued thereon and legal costs.

FEES

At AH Stander Attorneys, it is essential that fees be negotiated and agreed upon. The agreement shall then be embodied in a Service Level Agreement to be undersigned by the parties.

Our fee structures are guided by the directives of the Law Society of South Africa, case law and the various scales of the relevant courts.

     1.  FIXED FEE STRUCTURE

Certain clients prefer a structure which provides certainty. The fixed fee structure is preferable in these instances. At each milestone achieved (i.e. once summons has been served) a fixed fee will be levied. Hence, the total costs incurred shall be made known to a client before the initiation of legal proceedings.

2.  CONTINGENCY BASED FEES

This fee structure stipulates that a fee, which fee is higher than normal tariffs, will only be levied by the firm if the client’s application or action is successful.

This fee structure is prominent in cases where we are of the opinion that a successful outcome is probable.

     3.  PARTY AND PARTY COSTS

Each action taken on the matter shall be individually billed according to the scales provided by the Rules of the Court. The Party and Party scales are the lowest fee structures available to practitioners.

Once again, it must be stressed that a fee structure which is acceptable to both the firm and the client shall be tailored for each and every instance.

    IN CLOSING

    An old Chinese proverb begins with the phrase:

    “A journey of a thousand miles begins with one step.”

It is in line with our vision and mission to urge you to allow us to take the first step of your journey on your behalf, so that we may show you the way.

For more information contact our office on 012 346 4103

or Rikus Stander 079 840 4717

or SD Nel 082 303 8303