Published 6 June 2018
The recovery of debt and property remains an important consideration when it comes to the viability and corporate planning of a business. A harmonised approach to debt and property recovery provides an opportunity to assess the effectiveness of the processes or instruments used for the recovery of debt and property under a harmonised regime and is propitious to a lively discussion on the interplay between local law and the laws emanating from a treaty between States who have decided to harmonise their laws. The OHADA Uniform Act on Simplified Procedures and Measures of Execution (the "Act") was adopted by the Council of Ministers in 1998. The Act contains two important instruments or processes for the recovery of debt and personal property, namely (1) the Injunction to Pay and (2) the Simplified Procedures to Secure the Delivery or Restitution of Specific Personal Property. Both instruments are injunctive in nature and are designed (i) to ensure recovery of debt and personal property with minimal court intervention and (ii) to be more accessible, particularly to unsophisticated court users. The intention of the Act is to standardise and simplify the processes for the recovery of debt and personal property throughout the OHADA Member States. The processes have significant similarities in respect of the procedures that a petitioner or applicant must follow to commence proceedings, but their objectives, scope and application are different from each other.
This paper reviews and critiques the injunctive processes under the Act. The paper seeks first to review the salient features of the instruments or processes from the position of both a creditor/petitioner/applicant as well as the debtor/respondent/defendant before carrying out a critical examination of the effectiveness or efficiency of both processes.