[Question] Arrest according to law and National Credit Act for bad debt after emigrating?

[Steven2]

After being unemployed for a while in South Africa I emigrated to Australia about 6 Years ago, but still had R48,000 of debt in SA (credit cards + personal loan). For more than 2 years I helped my dad pay back about R80,000 for our failed family business and now financially look after my parents every month (Dad unemployed looking after my mum who has epilepsy). I battle on minimum wage installing gutters. I have no assets to sell, but did the wrong thing, I should have tried harder to settle the debt in SA (likely more than R100k now with interest). I've had setbacks in Australia but the last two years I have saved up for a plane ticket to visit my parents, but I am terrified to come back to South Africa. I don’t know if there would be a warrant out for my arrest, for the debt and/or contempt of court if the creditors demanded I appear in court and did not (haven't received a summons/demand but it might have been sent to my old address in SA). Maybe this warrant will pop up on a customs official's computer. Will I be arrested at the airport when I arrive or leave?

[AndyD]

I'm no expert on this type of thing but maybe get one of the thousands of SA vetting/ pre-employment screening company to run a 'crim check' on yourself. This type of screening would give you a report on credit status and criminal background including outstanding warrants etc.

[Steven2]

I appreciate it, I know too little about legal matters and didn't even know such a service exists - will check it out. Thank you.

[Andromeda]

I reckon it will have prescribed by now, or should have.
Also, in SA debt is a civil matter, not a criminal matter, and you can't be arrested for it.

[Steven2]

Thank you, feel like a criminal. Even if I faced extreme financial pressure, I have this debt and I have to deal with it. So I stopped spending (except for helping my parents) and want to get a side hustle to increase my income. I can only think of 3 things to do: bankruptcy, do nothing and let sleeping dogs lie or get new debt to consolidate this old debt. I'm glad you can't be arrested for debt as in other countries like UAE..

[Andromeda]

I reckon it will have prescribed by now, or should have.

It's a bank. I would say get over it.

[Steven2]

Thank you Andromeda, you are the best (and accurate SA debt is not a criminal matter). I also learned that in the past there was a drastic mechanism to arrest people with an ominous Latin name: 'Arrest tanquam suspectus de fuga' (the arrest of someone who is suspected of imminent flight to evade his debts in SA). But from what I can Google 'Arrest Tanquam Suspectus De Fuga' is now declared unconstitutional. If you or anybody else on this forum knows of any other ominous mechanisms that might exist making debt a criminal matter and/or leading to arrest PLEASE let me know?

[Izak Fick]

After being unemployed for a while in South Africa I emigrated to Australia about 6 Years ago, but still had R48,000 of debt in SA (credit cards + personal loan). For more than 2 years I helped my dad pay back about R80,000 for our failed family business and now financially look after my parents every month (Dad unemployed looking after my mum who has epilepsy). I battle on minimum wage installing gutters. I have no assets to sell, but did the wrong thing, I should have tried harder to settle the debt in SA (likely more than R100k now with interest). I've had setbacks in Australia but the last two years I have saved up for a plane ticket to visit my parents, but I am terrified to come back to South Africa. I don’t know if there would be a warrant out for my arrest, for the debt and/or contempt of court if the creditors demanded I appear in court and did not (haven't received a summons/demand but it might have been sent to my old address in SA). Maybe this warrant will pop up on a customs official's computer. Will I be arrested at the airport when I arrive or leave?

You will not be arrested for debt. Period. The process that has to be followed includes bringing you to a civil court and I bet you an Aussie dollar that nothing will happen to you. Just keep a low profile and sleep at night!

[Andromeda]

ou will not be arrested for debt. Period. The process that has to be followed includes bringing you to a civil court and I bet you an Aussie dollar that nothing will happen to you. Just keep a low profile and sleep at night!

Correct. It is also older than 3 years and has prescribed, unless the bank has issued summons.

[ians]

The only time i have ever heard of a person being arrested at the airport for an outstanding debt...he had an accident which resulted in a huge repair bill to the other drivers vehicle...he left the country for a couple of years and decided to come back to visit his parents...as he arrived he was arrested and had to pay the outstanding debt and fees etc before they released him.

This is the reason it is never a good idea to use personal assests as surety for a business...and why banks love giving huge personal loans (way beyond your means),,,because they know they can take your R500k house you the R5 k debt you owe them.

If there is a warrant out for your arrest or contempt of court they will arrest you.

[Steven2]

You will not be arrested for debt. Period. The process that has to be followed includes bringing you to a civil court and I bet you an Aussie dollar that nothing will happen to you. Just keep a low profile and sleep at night!

Thank you Izak! Insomnia because of debt is a kind of torture and I have 50 shades of dark circles under my eyes.

But I agree with you, from what I have learned sofar is for unsecured debt, banks will proceed with legal action to bring you to a civil court and may obtain a garnishee order or take your stuff if you have something, and should you come back to South Africa on a permanent basis they can implement the garnishee order on your salary.

However, if I have received a section 65 notice to appear in court and ignored it, a warrant for my arrest could be out. But this notice cannot be served by affixing, so, I must have accepted it in person from the sheriff. So, if I haven't been served by the sheriff in person because I wasn't even in South Africa and don't even know of such a notice, chances are that there is no warrant out for my arrest. This type of warrant is for contempt of court and not debt. It is not given to the police, but to the sheriff, who has nothing to do with the police. So theoretically the chances of such a warrant popping up on a customs official's computer at the airport is almost zero.

[Steven2]

The only time i have ever heard of a person being arrested at the airport for an outstanding debt...he had an accident which resulted in a huge repair bill to the other drivers vehicle...he left the country for a couple of years and decided to come back to visit his parents...as he arrived he was arrested and had to pay the outstanding debt and fees etc before they released him.

This is the reason it is never a good idea to use personal assests as surety for a business...and why banks love giving huge personal loans (way beyond your means),,,because they know they can take your R500k house you the R5 k debt you owe them.

If there is a warrant out for your arrest or contempt of court they will arrest you.

Thanks ians. Hopefully the person you heard of being arrested at the airport for an outstanding debt, was arrested many years ago when South Africa still had a draconian law (see above post - ominous Latin name: 'Arrest tanquam suspectus de fuga'). But if recent PLEASE let me know?

I sence that the new National Credit Act and civil procedure in South Africa is a bit more kinder to the small fish debtors without means in that they will no longer be faced with imprisonment, from which they can only be rescued by family or friends. Further, creditors will no longer be able to extend credit on the basis that the debt can be exacted through fear of imprisonment. Credit should be extended only to those who can pay, are creditworthy, provide proper security etc. I always thought it was like TV law shows like Law and Order (but that was criminal law luckily).

You are right: its never a good idea to use personal assests as surety for a business. I should have read more business books and join forums like this earlier.