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Thread: Rescinding judgment yourself without the use of an attorney

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    Diamond Member Vanash Naick's Avatar
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    Rescinding judgment yourself without the use of an attorney

    Question: Can I as the judgment debtor go to court and rescind judgment by myself without the use of an attorney and at NO cost to me by the court?

    Yes, you can,’(Sorry President Obama, just had to import your catch-phrase!)
    The following applies to the magistrates court and the regional magistrates court..

    Please refer to all attachments as well as websites referred to herein to get a fuller picture..

    So you have a judgment, can’t afford an attorney or don’t want to make use of an attorney, but do want to have the judgment rescinded, the law does indeed make provision for you!

    In terms of section 36(2) of the Magistrates Court Act 32 of 1944(as amended)[1] if a plaintiff in whose favour a default judgment has been granted has agreed in writing that the judgment be rescinded or varied, a court must rescind or vary such judgment on application by any person affected by it.

    The information provided herein is applicable to the following scenario. Jack the Ripper took out a personal loan with Shark Bank in January 2008. Jack the Ripper paid in January, February and March of 2008. Unfortunately Jack the Ripper lost his job in April 2008 and could no longer meet the monthly instalments. Letters of demand and eventually a summons was sued out. Jack the Ripper didn’t know what to do with the summons so he just ignored it. In February 2009, Jack the Ripper gets a job and then applies for credit, to his surprise, the creditor informs him that there is a judgment against him and credit will not be given to him. To confirm this Jack the Ripper goes to Transunion ITC website[2] to request his free credit report and finds that there is a judgment recorded against him by Shark Bank.

    In 2014 Ripper is finally on his feet financially. He approaches Shark Bank or their attorney and informs them that he will pay them R20 000 in cash on condition that they first provide him with a letter stating that should he pay in full and final settlement, they will gladly commission the affidavit which he will provide to them after payment.[3] Being smart, Jack the Ripper, lawfully includes certain clauses in this affidavit where the judgment creditor waives the right to receive notice and/or service of any documents pertaining to this matter.

    By the end of this process Jack the Ripper will have completed four(4) documents.

    Three(3) of the required forms can be found at the Department of Justice Website.[4]

    1. In practice the creditor is first approached, the creditor is paid in full, the creditor is handed the consent to rescind affidavit which the creditor gladly completes and hands back to Jack the Ripper;

    2. Normally you will have to file a copy of the motion application on the creditor BUT because the creditor has waived such right in the affidavit, you no longer need to do so;

    3. The second step: Form 1A[5]( you complete this form, you are the applicant and Shark Bank is the respondent), on this form it will state “ Be pleased to take note that application will be made to the above honourable court on “ You need to allocate a date, if it were me, I would allocate a date two weeks after the date on which you took the forms to the Clerk of Courts.
    4. So, accompanying form 1A will be the completed and commissioned consent to rescind affidavit, form 2A[6], your founding affidavit(Natural person affidavit) NOR Corporate company affidavit!!
    5. When the judgment is finally rescinded you must complete Form 3[7] ‘Draft Order,’ and get the Clerk of Courts to stamp this document for you..
    There are no costs whatsoever if you do this yourself, I must emphasize that YOU must be the judgment debtor!!! You can't do this for a friend and you can't do so on behalf of anyone else for financial gain.

    Hope that this at the very least points you in the right direction…

    [1] Hereinafter referred to as the MCA


    [3] See attachment entitled ‘consent to rescind judgment affidavit.


    [5] See n 4

    [6] See n 4

    [7] See n 4
    Attached Files Attached Files
    Last edited by Vanash Naick; 06-Jan-14 at 10:33 PM. Reason: typo
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx

    Disclaimer: The above is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered. Any reliance upon the above shall be at the user’s own risk
    TFSA Disclaimer

  2. Thank given for this post:

    AndyD (07-Jan-14), Dave A (07-Jan-14), imvusa (15-Jan-14)

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