By Kavita Kooverjee, Attorney
Category: Litigation and Dispute Resolution

We hear many stories of debt collectors harassing and threatening clients for payment, mainly due to people not knowing their rights and the extent to which debt collectors may act to collect a debt.  

This article explains whether you can be sent to jail for unpaid debts. 

Regulation
The general answer is no you cannot be sent to jail for unpaid debt. However, there are circumstances which can lead to jail time. 

With most things, there are different regulations that apply to debt collection. You would need to first establish the type of debt and then establish which laws apply. 

The Debt Collectors Act 114 of 1998, regulates how debt collectors may act when collecting a debt. 

Furthermore as Sections 151 covers Improper conduct by debt collectors:  

  1. A debt collector may be found guilty by the Council of improper conduct if he or she, or a person for whom he or she is vicariously liable:
    (a)
    uses force or threatens to use force against a debtor or any other person with whom the debtor has family ties or a familial or personal relationship; 
    (b) acts towards a debtor or any other person with whom the debtor has family ties or a familial or personal relationship, in an excessive or intimidating manner;
    (c) makes use of fraudulent or misleading representations, including, (i) the simulation of legal procedures; (ii) the use of simulated official or legal documents; (iii) representation as a police officer, sheriff, officer of court or any similar person; or (iv) the making of unjustified threats to enforce rights; 
    (d) is convicted of an offence of which violence, dishonesty, extortion or intimidation is an element;
    (e) spreads or threatens to spread false information concerning the creditworthiness of a debtor;
    (f) contravenes or fails to comply with a provision of the code of conduct contemplated in section 14;
    (g) contravenes or fails to comply with any provision of this Act; or
    (h) behaves or acts in any manner amounting to conduct, other than that mentioned in paragraphs (a), (b), (c), (d), (e), (f) or (g), which is improper in terms of a regulation. 

As stated above, Debt Collectors may not threaten or misrepresent themselves when attempting to collect debt and may not threaten you with jail time for unpaid debts.

With this being said, Debtors also have a duty to ensure that they meet their responsibilities and pay their debts diligently.  

Judgments
A debt collector could apply for a judgement against you, which could have you liquidated or sequestrated; have your credit facilities suspended; get an execution to attach your goods, or an emolument order which can be attached to your salary.  

With the above being said, you can be arrested in the event where you have been ordered to appear in court and you failed to attend for instance a financial query. 

South African Revenue Service and Child Maintenance
Though you cannot go to jail for unpaid debt, you can be sent to jail for not paying your taxes to SARS or failing to pay child maintenance.  

Conclusion 
With all financial issues, it is best to acquaint yourself with the law that regulates your debt, which will protect you and give you some peace of mind when going through difficult circumstances involving debt.   

Contact an attorney at SchoemanLaw for your legal needs by visiting our website at www.schoemanlaw.co.za.