Can you be jailed for debt in South Africa?

"Pay by Friday or we send the sheriff to arrest you." Some version of that sentence is said to South Africans every day, and it works, because it frightens people into paying money they often do not have, sometimes ahead of food and rent.

It is also wrong. You cannot be imprisoned in South Africa for being unable to pay a debt, and you have not been able to be since 1995.

What the Constitutional Court decided

Sections 65A to 65M of the Magistrates' Courts Act used to provide for the imprisonment of judgment debtors in certain circumstances. In Coetzee v Government of the Republic of South Africa, decided on 22 September 1995, the Constitutional Court struck those provisions down as inconsistent with the right to freedom and security of the person.

The court was unanimous that the provisions as they stood were invalid. The judges divided on the narrower question of whether it could ever be constitutional to imprison a debtor who genuinely had the money and simply refused to pay, but the practical outcome was clear: imprisonment as a debt collection mechanism was gone.

The distinction the case turned on

The judgment explains something worth holding on to, because it is the key to every threat you will hear.

The common law had always drawn a sharp line between two kinds of court order:

• an order to pay money, in the old language ad solvendam pecuniam
• an order to do something, or to stop doing something, ad factum praestandum

Failing to comply with an order to pay money was not contempt of court. Disobeying an order to do or refrain from an act was.

That is why civil imprisonment for debt had to exist as a separate statutory remedy in the first place: contempt did not reach it. When the Constitutional Court removed the statutory remedy, there was nothing underneath it.

So when a collector tells you that you will be arrested for contempt because you have not paid, they are describing a legal route that does not exist for an ordinary money judgment.

What can actually happen if you do not pay

Plenty, and none of it involves a cell.

Judgment. The creditor sues and obtains judgment against you. Our guide on section 129 notices covers the step that comes first, and it is the one worth responding to.

A financial enquiry. You are summoned to court and examined about your means, your income and your expenses. The court can then order you to pay in instalments you can actually afford.

An emoluments attachment order, deducting from your salary. Our guide on emoluments attachment orders sets out the limits, and our debt relief options tool works out which route fits your situation.

A warrant of execution, under which the sheriff attaches and sells movable property.

A listing on your credit record, which is what usually does the long-term damage.

Each of those is serious. None is imprisonment.

Where the real risk lies

Three situations are genuinely different, and conflating them with ordinary debt is how people end up either terrified or complacent.

Maintenance. Failing to pay maintenance is not an ordinary debt. It is an offence under the Maintenance Act, prosecuted criminally, and a defaulter can be convicted and sentenced. Our guide on what to do when maintenance is not paid covers enforcement, and this is the one area where "you can go to jail for not paying" is accurate.

Defying an order to do something. If a court orders you to deliver a vehicle, to sign a document, to vacate premises or to produce records, that is an order ad factum praestandum. Disobeying it is contempt of court, and contempt can carry imprisonment. The obligation there is not to pay; it is to act.

Lying under oath about your means. At a financial enquiry you give evidence. Understating your income, hiding assets or producing false documents is perjury or a statutory offence, and it is prosecuted as one. Failing to attend a summons to appear at court is also an offence in itself.

The pattern is consistent. The risk attaches to conduct, not to poverty.

What a collector may and may not do

Debt collection is regulated, and threats of arrest sit squarely outside what is permitted.

A collector may not threaten you with criminal proceedings or arrest for a civil debt, may not pretend to be an attorney or a court official, may not use a document designed to look like a court document when it is not, and may not harass you or discuss your debt with your employer, neighbours or family.

Two documents get used to frighten people and are worth naming:

A "final demand" dressed up as a court document. Often headed in bold with a case number that is not a case number. If it did not come from a court, it is a letter.

A warrant that has not been issued. A sheriff attends with a warrant of execution issued by a court and can produce it. Somebody telling you on the phone that a warrant exists is telling you something you are entitled to verify.

If any of that has happened to you, the complaint routes cost nothing: the Council for Debt Collectors, the National Credit Regulator on 0860 627 627, and the National Financial Ombud. Our guide on stopping debt collectors harassing you sets out how.

Fraud is not debt

There is one more distinction that matters, and it cuts the other way.

Owing money is not a crime. Obtaining money or goods by misrepresentation is. If somebody takes a loan using false payslips, buys goods on credit using another person's identity, or writes a cheque on an account they know is empty, the problem is not the unpaid balance. It is the misrepresentation that obtained the money in the first place, and that is fraud, which is prosecuted and does carry imprisonment.

The line is intention at the time. A person who borrowed honestly and then could not pay has an ordinary debt. A person who never intended to pay, and said things that were untrue to get the money, has committed an offence, and the fact that a civil debt also exists does not protect them from the criminal side.

This is worth knowing in both directions. If you are being threatened over an ordinary debt, fraud is not in the picture and should not be used to frighten you. If a creditor is alleging that your application contained false information, that is a different and more serious conversation, and it is one to have with an attorney rather than with a call centre.

Why the myth survives

Three reasons, and each is worth knowing so you can recognise which one you are looking at.

The first is that the law genuinely was different within living memory. People were imprisoned for debt in South Africa, and older relatives remember it.

The second is that maintenance defaulters really are prosecuted, and the reporting of those cases feeds a general impression that unpaid debt leads to jail.

The third is that the threat works. A collector who says "arrest" gets paid ahead of one who says "we will list you at the bureaus in twenty days", even though the second is true and the first is not.

What to do when you are threatened

Ask for it in writing. Almost every improper threat evaporates when asked to be repeated in an email.

Ask for the case number and the court. Then check it. A judgment exists in a court file or it does not exist.

Do not pay to avoid arrest. If that is the reason you are paying, you are paying on a false premise. Pay because you owe it and can afford the arrangement, not because of a threat that has no legal foundation.

Do go to court when summoned. This is the important exception to not being frightened. Ignoring a summons or a notice to attend a financial enquiry creates exactly the kind of risk that does not exist for the debt itself.

Get the debt assessed. It may have prescribed, it may have been recklessly granted, or the amount may be overstated. Our prescription checker and our guide on reckless credit are the two places to start.

Worked example

This example is illustrative. Nomsa owes R14 000 on a store account. She loses her job. A collector phones repeatedly, tells her there is a warrant for her arrest, and says the sheriff will come to her home on Monday unless she pays R3 000.

There is no warrant for her arrest and there cannot be one for this debt. What may exist, if the creditor has sued and obtained judgment, is a warrant of execution authorising the sheriff to attach movable property. Those are different documents with different consequences, and the collector is relying on Nomsa not knowing that.

What Nomsa should do is ask, in writing, for the case number and the court, and for a copy of the judgment. If there is a judgment, she should go to court for a financial enquiry and ask for an instalment order she can afford on her actual income. If there is no judgment, the threat was invented.

What she should not do is borrow R3 000 from somebody else at higher interest to avoid an arrest that was never going to happen. That, rather than the debt itself, is what the threat is designed to produce.