Enforcing orders against Government departments

1. The arbitration award is required to be made an Order of Court in terms of Section 32 (1) of the Arbitration Act, Act 42 of 1965, as amended.
2. Once the award is made an order of court, the attachment process may commence having due regard to the State Liability Act No 20 of 1957 (“the Act”).
3. Section 3 of the Act contains the provisions which one must follow to satisfy final court orders obtained against a government department.
4. The Act defines a final court order as follows:

“An order –

Given or confirmed by a court of final instance; or

Given by any court where the time for noting an appeal against the judgment or order to a higher court has expired and no appeal has been lodged: provided that where a court thereafter grants condonation for the late lodging of an appeal, or order given or confirmed by the court hearing the appeal”

5. Section 3 (1) of the Act states that no execution, attachment of like process for the satisfaction of a court order sounding in money may be issued against the State or any property of the State, unless the provision of the Act has been followed.
6. Section 3 (3) of the Act requires an Order against a department to be paid within 30 days of the date of the Order becoming final, or within the time period agreed upon by the judgment creditor and the accounting officer of the department concerned.
7. Section 3 (4) – states that:

If a final order against a department for the payment of money is not satisfied within 30 days of the order becoming final as provided for in subsection 3 a)(i) or the time period agreed upon as provided for in subsection (3) (a) (ii), the judgment creditor may serve the court order in terms of the applicable Rules of Court on the executive authority and accounting officer of the department concerned, the State Attorney or the Attorney of record appearing on behalf of the department concerned and the relevant treasury.

8. In terms of this section, the judgement creditor, must upon the expiration of the 30 days from date of the order serve the Order on the executive authority, the accounting officer of the Department, the State Attorney or the Attorneys of record appearing on behalf of the Department and the relevant treasury.
9. Section 3 (5) of the Act requires the treasury to ensure that within 14 days of the service of the Order, that the Order is satisfied or that an acceptable arrangement has been made with the judgment creditor for the payment.
10. In the event that, the treasury fails to ensure that the Order is satisfied or that an acceptable arrangement has been made with the judgment creditor within 14 days of the service of the court order, section 3 (6) provides as follows:

“The registrar or clerk of the court concerned, as the case may be, must, upon the written request of the judgment creditor or his legal representative, issue a writ of execution or warrant of execution in terms of the applicable Rules of Court against the movable property owned by the State and used by the department concerned.”

11. The registrar or clerk of the Court will only issue the warrant of execution if he or she is satisfied that the judgment creditor has complied with the requirements as stated above.
12. Therefore, a judgment creditor may only approach the Court to issue a warrant of execution upon the expiration of the 14-day period from the date of service of Order on the executive authority, the accounting officer of the Department, the State Attorney or the Attorneys of record appearing on behalf of the Department and the relevant treasury.
13. Section 3 (7)- reads as follows:

“(3) (7) (a) subject to paragraph (b), the sheriff of the court concerned must, pursuant to the writ of execution of the warrant of execution, as the case may be, attach, but not remove, movable property owned by the State and used by the department concerned.

(b) The Sheriff and the accounting officer of the department concerned, or an official of his or her department designated in writing by him or her, may, in writing, agree on the movable property owned by the State and used by the department that may not be attached, removed and sold in execution of the judgment debt because it will severely disrupt service delivery, threaten life or put the security of the public at risk.

(c) If no agreement referred to in paragraph (b) is reached, the sheriff may attach any movable property owned by the State and used by the department concerned, the proceeds of the sale which, in his or her opinion will be sufficient to satisfy the judgment debt against the department concerned. “

14. In terms of this subsection section, the sheriff must be instructed to attach but not remove the movable property owned by the State and used by the Department.
15. Furthermore, the sheriff and the accounting officer may, in writing, agree on movable property owned by the State or used by the Department that may not be attached, removed, and sold in executions as the execution would severely disrupt service delivery, threaten life, or put the security of the public at risk.
16. Section 3 (10) of the Act states that a party having a direct and material interest in the attached movable property may, before the movable property is sold in execution of the judgment debt, apply to the court, which granted the order, for a stay of the sale in execution of the grounds that the attached movable property, would either: severely disrupt service delivery, threaten life or put the security of the public as risk; or is not in the interest of justice.
17. Section 3 (8) states that in the absence of an application contemplated in subsection (10), the sheriff may, after the expiration of 30 days from the date of attachment, remove and sell the attached movable property in execution of the judgment debt.
18. Simply put the following process is to be followed to satisfy an Order sounding in money against a Government Department:
    • The judgment creditor must allow the Department 30 days after the date of order to pay the amount as stated in the Order;
    • If the amount remains unpaid upon the expiration of the 30 days, the judgment creditor is required to serve the Order on the executive authority, the accounting officer of the Department concerned, the State Attorney or the Attorney of record representing the Department and the relevant treasury;
    • The relevant treasury must ensure that the Order is paid within 14 days from the date of service of the Order.
    • If the Order remains unpaid upon the expiration of the 14 days from service of the Court, the Judgment creditor may approach the registrar of the court to issue a warrant of execution.
      • The sheriff will then be instructed to attach movable goods but not remove the goods. The accounting officer and the sheriff may, in writing, agree that certain movable property may not be attached or removed as executions as it will severely disrupt service delivery, threaten life, or put the security of the public at risk.
      • A party having a direct and material interest in the attached movable property may, before the movable property is sold in execution of the judgment debt, apply to the court, to a stay of the sale in execution of the grounds that the attached movable property, would either: severely disrupt service delivery, threaten life, or put the security of the public as risk; or is not in the interest of justice.
    • In the absence of an application by a third party, the sheriff may, after the expiration of 30 days from the date of attachment, remove and sell