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Thread: Legal advice

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    Full Member andrecv's Avatar
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    Legal advice

    To all the legal eagles out there: a very good friend asks, is it possible to have a judgement rescinded if the court order was obtained in a different jurisdiction to where the original debt was incurred ? secondly he has signed (obviously in ignorance) acknowledgement of debt and as far as i can read on the documentation it states that he actually signed approving any jurisdiction. Now is it even legal to put such a question in any contract document (...consent for emolument order to be issued in district ???...)
    Much appreciated !

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    Platinum Member sterne.law@gmail.com's Avatar
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    The first issue is when and if a rescission application can be brought. In this regard the jurisdiction is not the issue, it is whether you knew about the proceedings. If not, then a rescission application can be moved.

    In terms of jurisdiction, there must be a link. The party who starts an action can choose his playing field, in this regard there are various links.
    So, if a debt is incurred in JHB, but the defendant lives in Durban, the bank may choose either.
    So the issue is if the court in which judgement was obtained had jurisdiction through a linking factor.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Full Member andrecv's Avatar
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    He did relocate to North West due to unemployment in October 2006 and apparently since his return to Pretoria in December 2009 his new employer was contacted regarding a garnishee order...and there is no link regarding jurisdiction except the acceptance of debt....would you advise legal counsel...? Thanks

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    Platinum Member sterne.law@gmail.com's Avatar
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    Let's return to the first question, did he know about the legal proceedings?
    And/or from when did he know about the judgment?
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Bronze Member Brett Nortje's Avatar
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    Quote Originally Posted by andrecv View Post
    To all the legal eagles out there: a very good friend asks, is it possible to have a judgement rescinded if the court order was obtained in a different jurisdiction to where the original debt was incurred ? secondly he has signed (obviously in ignorance) acknowledgement of debt and as far as i can read on the documentation it states that he actually signed approving any jurisdiction. Now is it even legal to put such a question in any contract document (...consent for emolument order to be issued in district ???...)
    Much appreciated !
    Sounds like you are trying to 'bend' the law, no? you could slow it down by pleading ignorance or something, and, the courts will have to send it through to the other jurisdiction if it is not a national case. a national case would come from Pretoria where the capital is, covering the whole country. otherwise, the dates might stay the same.

    Now, if he leaves before the deadline but too soon for the court to send it through to the other state, then he will buy himself some time, i think?
    !! Going to my destruction !!

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    Diamond Member HR Solutions's Avatar
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    Now, if he leaves before the deadline but too soon for the court to send it through to the other state, then he will buy himself some time, i think?
    How do you as a non legal person answer a question with this answer and end off with "I think" ??
    Do you not perhaps THINK that andre is looking for a proper legal answer which he most probably will get from Anthony who is a lawyer ?
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    Diamond Member adrianh's Avatar
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    Quote Originally Posted by HR Solutions View Post
    How do you as a non legal person answer a question with this answer and end off with "I think" ??
    Do you not perhaps THINK that andre is looking for a proper legal answer which he most probably will get from Anthony who is a lawyer ?
    You see, I even get to quote the bible.

    Proverbs 17:28

    Even a fool, when he holdeth his peace, is counted wise: and he that shutteth his lips is esteemed a man of understanding.
    How easily someone is offended is directly proportional to how stupid they are.
    ~GS Elevator

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    Full Member andrecv's Avatar
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    Sterne he did not know about it until a garnishee order on his salary on 15 September 2010...thanks for the patience...

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    Platinum Member sterne.law@gmail.com's Avatar
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    Unfortunately by not bringing the rescission application within the time limit he has missed the boat.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Platinum Member sterne.law@gmail.com's Avatar
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    The horse having bolted aside, the original question is important.
    First, no contract can oust jurisdiction rules. In other words, I can't give jurisdiction via a contract.
    Often a financier will sue out from their head office, on the basis that that is where the contract was concluded. (Head office approved and that's when the contract came into being.)
    The contract may have been worded: consent to any proceedings being brought in a High Court having jurisdiction.
    The other issue is the garnishes order. They may have obtained judgment where ever and are now exercising it through the garnishes order.
    Garnishee orders can travel, in fact when an employee leaves the company is obligated to inform the creditor.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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