Debt Collection in the Democratic Republic of Congo

Debt collection in the Democratic Republic of Congo begins with a legal, financial and evidentiary review of the claim and the debtor. This page concerns the Democratic Republic of Congo, with its capital in Kinshasa, and should not be confused with the Republic of the Congo. At the initial stage, the creditor should verify the origin of the debt, the debtor’s exact legal identity, business sector, actual place of activity, contracts, invoices, delivery or service evidence, correspondence, acknowledgments of debt, pending court cases, existing enforcement measures, possible objections and assets that can realistically be reached in the Democratic Republic of Congo.

For a foreign creditor, debtor analysis in the Democratic Republic of Congo has a practical commercial dimension. It is important to determine whether the debtor operates through Kinshasa or another local business centre, whether the debt is connected with mining, logistics, construction, public procurement, trade or service contracts, whether receivables from third parties exist, and whether the debtor’s assets are private commercial assets or assets connected with a public-law entity.

The amicable stage involves documented negotiations with the debtor to reach payment of the creditor’s claim or another commercially acceptable settlement, such as the return of goods, transfer of the debt to a third party, exchange of services or goods, payment by instalments, partial repayment combined with security, or recognition of the debt in a written document.

Communication with the debtor should be supported by a clear payment demand, copies of the key debt documents and a record of the debtor’s response. Contact by mail, email, phone or business messaging channels can help establish communication with decision makers, confirm the debtor’s position and preserve evidence of negotiations. Notices that are intended to have procedural effect should be prepared in a form suitable for later court or enforcement use.

The duration of the amicable debt collection stage depends on the debtor’s response, the quality of evidence, the commercial relationship between the parties, the existence of assets and the debtor’s willingness to provide security or a payment schedule. If the debtor refuses payment, avoids communication, disputes the debt without proper grounds, transfers assets or shows signs of insolvency, the creditor may proceed to collection through the courts.

The Democratic Republic of Congo is a member of OHADA. The state ratified the OHADA Treaty on 27 June 2012, deposited the instruments of ratification on 13 July 2012 and became bound by the OHADA framework on 12 September 2012. This is important for creditors because OHADA rules apply directly in covered business-law matters and may govern key parts of debt recovery, including simplified recovery procedures, enforcement measures and collective proceedings.

Before initiating judicial collection, the creditor should determine the applicable limitation period. Under national law of the Democratic Republic of Congo, Article 647 of Civil Code Book III provides a general thirty-year limitation period for real and personal actions where no special shorter period applies. For obligations arising from trade between traders or between a trader and a non-trader, the OHADA commercial regime provides a five-year limitation period unless a shorter special period applies.

The effect of expiry of a limitation period is normally considered when it is relied on by the debtor. The running of time may be affected by the due date of the obligation, a fixed-term claim, acknowledgment of the debt, court action, prior enforcement steps and special rules applicable to the specific type of claim. In commercial matters, the parties may adjust the limitation period by agreement within the limits allowed by OHADA commercial law, including the rule that the period may not be reduced to less than one year or extended to more than ten years.

Judicial debt collection in the Democratic Republic of Congo may be carried out through the ordinary judicial procedure or through an order for payment where the claim meets the legal conditions for simplified recovery.

The ordinary judicial procedure begins with an application to summon the defendant. If the application meets the procedural requirements, the court issues a summons. The summons must generally be served at least eight clear days before the hearing, with additional time for distance where applicable. If the defendant has no domicile or residence in the Democratic Republic of Congo, the summons must be served at least three months before the hearing.

On the appointed day, the parties must appear in person or through their representatives. If the defendant fails to appear, the court may hear the case in the defendant’s absence and satisfy the plaintiff’s claim if the claim is substantiated and properly verified. If the court does not have evidence of proper service, it orders a new summons.

If the parties appear, the court conducts adversarial proceedings during which the parties exchange arguments, documents and evidence in support of their positions. If all circumstances are clear after the first hearing, the court may issue a decision at the same hearing. If the case is not ready for decision, the court may order investigation measures.

During the investigation, the court may question witnesses, appoint experts, inspect sites, verify the authenticity of documents, order the personal appearance of the parties and carry out other procedural actions. After the investigation is completed, the court holds the parties’ debate and issues a final decision.

If, after the initial appearance, the defendant no longer appears, refrains from filing statements or does not participate in the investigation, the plaintiff may continue the proceedings after notice to the defendant. After fifteen clear days from the date of notice, the plaintiff may apply for a decision on the claim. Such a decision is treated as a decision rendered in adversarial proceedings.

The order for payment procedure is governed by the OHADA Uniform Act organizing simplified recovery procedures and enforcement measures. It is used for recovery of a debt that is certain, due and payable and arises from a contract, a negotiable instrument or a cheque without sufficient cover. To initiate this procedure, the creditor files or sends an application to the registry of the competent court and attaches the documents proving the debt. If the creditor is not domiciled in the jurisdiction of the court, the application must include an address for service within that jurisdiction.

The application must identify the parties, state the exact amount claimed and its basis, and include the originals or certified copies of the supporting documents. If the court considers the application justified in whole or in part, it issues an order for payment of the relevant amount. If the application is rejected in whole or in part, the rejection is not subject to appeal, but the creditor may bring the claim through ordinary proceedings.

Certified copies of the application and the order must be served on the debtor within three months. Failure to comply with this deadline makes the order for payment invalid. After service, the debtor must either pay the debt or file an objection within ten days. If the order was not personally served on the debtor, the objection period runs from the first act personally served on the debtor or from the first enforcement measure that makes all the debtor’s assets unavailable.

If the debtor does not file an objection within the applicable period, the creditor may request that the order be made enforceable. The enforceable order has the effect of a decision rendered in adversarial proceedings and is not subject to appeal. If the debtor files an objection, the court attempts to reconcile the parties within fifteen days. If reconciliation is reached, a reconciliation record is drawn up and one copy is issued with enforcement force. If reconciliation fails, the case proceeds to a hearing and the court issues a decision, including where the debtor does not appear. The decision on the objection replaces the earlier order for payment.

A decision of the court of first instance in ordinary proceedings may be appealed to the court of appeal within thirty days from the date of the contested decision. The appeal has suspensive effect unless the decision provides for provisional execution.

The decision of the court of appeal may be challenged before the Court of Cassation within three months from service of the contested decision, unless a shorter special period applies. A cassation appeal does not suspend enforcement of the contested decision, except in cases where the decision changes the status of persons. The decision of the Court of Cassation is final and is not subject to further ordinary appeal.

Where the dispute concerns the application or interpretation of OHADA Uniform Acts, the final review route may involve the Common Court of Justice and Arbitration. Under the OHADA Treaty, this court has jurisdiction over appeals against decisions rendered by national appellate courts in matters governed by OHADA Uniform Acts, except for decisions applying criminal sanctions. The competent route therefore depends on whether the dispute is governed by national procedural law, OHADA business law, or both.

For decisions issued after an objection in the order for payment procedure, the OHADA rules provide a specific appeal period of fifteen days. This shorter period is important in debt recovery cases because a payment order may become enforceable quickly if the debtor does not use the available objection or appeal mechanisms within the applicable deadlines.

Once the creditor has an enforceable title, enforcement proceedings may be initiated against the debtor’s assets. The creditor’s claim may be satisfied through seizure of funds in bank accounts, seizure and sale of movable or immovable property, seizure of securities, attachment of receivables and seizure of the debtor’s property held by third parties. Enforcement should be planned around assets that can actually be located and reached in the Democratic Republic of Congo.

For international cases, recognition and enforcement of foreign judgments is a separate practical issue. A foreign court decision or foreign arbitral award may serve as an enforcement title only after it has been declared enforceable by a final ruling in the state where enforcement is sought. This makes the recognition stage important where the creditor already has a foreign judgment or arbitral award and wants to enforce it against assets located in the Democratic Republic of Congo.

Special attention is required where the debtor is the state, a local authority, a public establishment or another public-law entity. OHADA enforcement rules provide a protected regime for public-law entities and restrict direct enforcement measures against them. Where a public-law entity fails to pay after a formal notice, the creditor may rely on the budgetary route provided by the OHADA enforcement framework, including the inclusion of the debt as a compulsory expenditure after the applicable period.

Another method of debt recovery is to initiate insolvency or collective proceedings against the debtor. In the Democratic Republic of Congo, this area is governed by OHADA rules on collective proceedings for the wiping off of debts. A creditor may seek the opening of collective proceedings where the claim is certain, liquid and due and the debtor is in a state of suspended payments. After collective proceedings are opened, individual lawsuits and enforcement measures for earlier monetary claims are generally suspended or prohibited, and creditors must assert their claims through the collective procedure.

For creditors, this route is especially relevant where the debtor has stopped paying several creditors, has insufficient available assets, is transferring property, or is no longer able to meet due obligations with available funds. Creditors domiciled in the state where the proceedings are opened must file their claims within the applicable filing period after the required publication, while creditors resident outside that state have a sixty-day period. The claim should be supported by contracts, invoices, delivery documents, acknowledgments, correspondence, judgments, security documents and evidence of the amount due.

If the debtor’s assets are insufficient to satisfy creditors, transactions made during the suspect period may be challenged where they prejudice the estate. Such transactions include gratuitous transfers of property, contracts where the debtor’s obligations significantly exceed those of the other party, early payment of debts that were not yet due, security granted for pre-existing debts and transactions made with a party that knew of the debtor’s financial insolvency.

The cancellation of these transactions allows property, rights or other assets to be returned to the debtor’s estate, increasing the pool available for payment of creditors and costs of the collective proceedings. Where the insufficiency of assets is connected with management errors, the court may also order managers to bear all or part of the company’s debts under the conditions provided by OHADA insolvency rules.

Grandliga provides legal support for debt collection in the Democratic Republic of Congo at every stage of the process: debtor analysis, evidence review, amicable negotiations, preparation of payment demands, court proceedings, order for payment, recognition of foreign decisions, enforcement measures and creditor actions in collective proceedings. In cross-border cases involving the Democratic Republic of Congo, the strategy should combine local procedural requirements, OHADA business-law rules, asset tracing and a realistic assessment of enforcement prospects.

# DEBT COLLECTION AGENCY DEMOCRATIC REPUBLIC OF THE CONGO

24.12.2024

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