1. affidavit for the consent to rescission of judgement.docThe Magistrates Courts Rules has under went some revamping over the past few years;
2. In the past, when one wanted a rescission of Judgment, you simply had to pay the creditor in full and final settlement and then obtain a consent letter from the creditor for rescission of judgment;
3. This has changed, you now still have to pay the creditor in full and final settlement but you have to obtain a special “precedent”(form), do not confuse the word “precedent” with “judicial precedent.” Judicial precedent is caselaw whereas “precedent” is simply a blueprint or form or template that the court wants in a prescribed manner;
4. The precedent you have to obtain is an affidavit (attached) in which the creditor or his lawful representative consents to rescission of judgment;
5. Legal hurdles in practice:In most cases when you go to an attorney for rescission of judgement they’ll want you to bring along the consent affidavit, (they normally don’t do this for you, there may be exceptions) So in practice you firstly pay the creditor in full and final settlement;
6. You then prepare the affidavit(get the accounts name or credit manager’s name, normally they will be happy to provide you with this as you paid them, tell them it’s for the affidavit, amend this attached affidavit, i.e. correct court, correct case number, correct creditor’s name, correct dates, print it;
7. Now here’s the catch, the affidavit needs to be commissioned by a commissioner that does not work for the creditor or is not associated with the creditor, so in practice you will have to take a commissioner of oaths with you;
8. So you’ve paid, you got the affidavit, you take the affidavit to the attorney, you pay the attorney, he then appears in chambers and has the judgement rescinded;
9. Now, the magistrate is not going to give you a certified letter stating that the judgment was rescinded, the court will give you nothing!
10. So, how do you then get the listing removed from itc etc: Your attorney should give you a letter to the following effect on his official letterhead:
RE: MR SHARK:CASE NO: 56524/2011(JHB MAGISTRATE’S COURT
We confirm that a rescission of judgment was granted herein on 25 January 2012 in chambers and this judgement is now accordingly cancelled against your name and is no longer collectable by the plaintiff. You may take a copy of this letter to ITC, Experian and XDS or any other credit bureau that has blacklisted you and they will then delete the reference to the judgment against your name.
We confirm that you have already paid our costs and thank you for your instructions.
Section 49 of the magistrates court rules as amended provides as follows
“49. (1) A party to proceedings in which a default judgment has been given, or any person affected by such judgment, may within
20 days after obtaining knowledge of the judgment serve and file an application to court, on notice to all parties to the proceedings, for a rescission or variation of the judgment and the court may, upon good cause shown, or if it is satisfied that there is good reason to do so, rescind or vary the default judgment on such terms as it deems fit: Provided that the 20 days' period shall not be applicable to a request for rescission or variation of judgment brought in terms of subrule (5).
(2) It will be presumed that the applicant had knowledge of the default judgment 10 days after the date on which it was granted, unless the applicant proves otherwise.
(3) Where an application for rescission of a default judgment is made by a defendant against whom the judgment was granted, who wishes to defend the proceedings, the application must be supported by an affidavit setting out the reasons for the defendant's absence or default and the grounds of the defendant's defence to the claim.
(4) Where an application for rescission of a default judgment is made by a defendant against whom the judgment was granted, who does not wish to defend the proceedings, the applicant must satisfy the court that he or she was not in wilful default and that the judgment was satisfied, or arrangements were made to satisfy the judgment, within a reasonable time after it came to his or her knowledge.
(5) (a) Where a plaintiff in whose favour a default judgment was granted has agreed in writing that the judgment be rescinded or varied, either the plaintiff or the defendant against whom the judgment was granted, or any other person affected by such judgment, may, by notice to all parties to the proceedings, apply to the court for the rescission or variation of the default judgment, which application shall be accompanied by written proof of the plaintiff's consent to the rescission or variation.
(b) An application referred to in paragraph (a) may be made at any time after the plaintiff has agreed in writing to the rescission or variation of the judgment.
(6) Where an application for rescission or variation of a default judgment is made by any person other than an applicant referred to in subrule (3), (4) or (5), the application must be supported by an affidavit setting out the reasons why the applicant seeks rescission or variation of the judgment.
(7) All applications for rescission or variation of judgment other than a default judgment must be brought on notice to all parties, supported by an affidavit setting out the grounds on which the applicant seeks the rescission or variation, and the court may rescind or vary such judgment if it is satisfied that there is good reason to do so.
(8) Where the rescission or variation of a judgment is sought on the ground that it is void ab origine or was obtained by fraud or mistake, the application must be served and filed within one year after the applicant first had knowledge of such voidness, fraud or mistake.
(9) A magistrate who of his or her own accord corrects errors in a judgment in terms of section 36(1)(c) of the Act shall, in writing, advise the parties of the correction.”
Disclaimer: Please don’t take my advice, it will probably be to your detriment!!!