My father owes the Bank about R60,000. He defaulted and a summons was issued and he entered into a debt arrangment to pay reduced installments. But he then stopped paying for the last couple months because he has no money. I'm sure a judgement and warrant of execution will be issued shortly by the bank.

My father has been unemployed for the last 2 years and He has sold most of his assets, except his car to try and pay of the installments. In terms of assets he has a tv, tools and a bed and some other small items. It was my mother and I who bought majority of all the household assets because we both earned more than him and he spent most of it on alcohol and his business which shutdown 3 years ago.

My father, mother and I live in the same house. We rented for for the last 25 years and had to move recently to my mother's late parents house because my mother lost her job and we could not afford the rent. My mother and father are not legally married and have been seperated for many years now but we stay together because living expenses are high and we feel sorry for him, he will live on the streets if not with us.

My question is what happens when the Sheriff tracks him down to our new address? I pay the rates, water and electricity and my mother sees to groceries and other household expenditure. 95% of movable objects in the house does not belong to my father. The bills are all in my name and the house belongs to my grandfathers estate.

How do we prove that the assets in the house are not his and belong to my mother and I? It's a small town and it's easy for the sheriff to track him down. Keep in mind he has been unemployed for the last 2 years is 57 years old and will never find employment, there's no way he can settle the debt so debt review and sequestration is not an option because it costs too much and he certainly doesn't have much to even pay off 15% of the debt.

Hi there and thank you for your question,

Firstly, after a judgment is granted the court will issue a warrant for movable property, which means that the sheriff will be entitled (one he has tracked your dad down) to attach all of your dad's movable property. The sheriff can then remove the property and will sell it on auction.

If there is not sufficient movable property to settle the debt in full, then the court will issue a warrant for immovable property, which means that the sheriff will be entitled to attach any house/land that your dad owns. Again, selling it in execution.

What will happen in reality is that the sheriff will arrive at the new address and see ALL of these assets (which belong to your mom) and will ASSUME that they belong to your dad. The sheriff will then attach ALL of these assets! It will then be up to your mom and youself to approach the sheriff with proof that you guys own those assets. IF you have the original till slips, or proof of payment, etc that will always help.

Basically there will be a bit of a fight about who owns those assets: your dad, or you guys.

It will come down to the attorneys acting for the bank. Do they want to get involved in this fight or not? I can't answer that question, but I can tell you that you should try to get your proofs of ownership of the assets together. You are also entitled to file an affidavit in which you swear that you bought the assets.

If it's a small town, you might be able to get the shop owners to sign an affidavit confirming that your dad didn't buy those assets, and that he remembers that it was your mom/you.

ANYTHING that you can put together will work.

At the end of the day it will be up to the bank to PROVE that your dad is the owner of the goods. They won't have any real proof, so the court will err on the side of you and your mom. So again, ANYTHING that you guys can put together as proof will be taken by the court!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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