Default inquiry, nature of
90 Default inquiry, nature of
If at a default inquiry a court is satisfied —
in the case of an alleged disobedience of a time for payment order — that the judgment debtor, at the time the judgment debt was to be paid under the order —
had the means to pay the judgment debt but did not pay it; and
did not have a reasonable excuse for not paying the judgment debt;
in the case of an alleged disobedience of an instalment order — that in the case of each of 2 or more of the instalments that were required to be paid under the order, the judgment debtor, at the time the instalment was to be paid under the order —
had the means to pay the instalment but did not pay it; and
did not have a reasonable excuse for not paying the instalment,
then —
if the judgment debtor is a natural person — he or she is guilty of a contempt of court;
if the judgment debtor is a partnership — each partner is guilty of a contempt of court unless he or she satisfies the court —
that the partnership’s disobedience occurred without the partner’s consent or connivance; and
that the partner took all the measures to ensure the partnership obeyed the order that he or she could reasonably be expected to have taken having regard to the partner’s functions and to all the circumstances;
if the judgment debtor is a corporation, the corporation is guilty of a contempt of court, and each officer of the corporation is also guilty of a contempt of court unless he or she satisfies the court —
that the corporation’s disobedience occurred without the officer’s consent or connivance; and
that the officer took all the measures to ensure the corporation obeyed the order that he or she could reasonably be expected to have taken having regard to the officer’s functions and to all the circumstances.
A natural person, partner, corporation or officer guilty of a contempt under subsection (1) may be punished for it by the court at or after the default inquiry.
A court may punish a person guilty of a contempt under subsection (1) in any way it may punish a person for any other contempt of the court, but any period of imprisonment imposed must not be longer than 40 days.
If a court decides to imprison a person guilty of a contempt under subsection (1), the court may order that the order for the person’s imprisonment be suspended for such period and on such terms as the court orders to enable the judgment debtor to comply with —
a new time for payment order made by the court; or
the instalment order, or an amended or new instalment order made by the court.
If —
an order for a person’s imprisonment is suspended under subsection (4); and
the judgment debtor does not comply with the order referred to in subsection (4)(a) or (b), as the case requires,
the court, on the application of the judgment creditor and on proof of the non‑compliance, may issue a warrant for the arrest of the person and for his or her imprisonment in accordance with the suspended order.
A punishment imposed on a person under this section for a contempt of court does not —
extinguish or reduce the judgment debt; or
terminate an instalment order, unless the court orders otherwise.
Any person who under section 30(6) may appear on behalf of a judgment creditor at a means inquiry in the Magistrates Court may appear on behalf of a judgment creditor at a default inquiry in that court.
[Section 90 amended: No. 5 of 2008 s. 11.]
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