Debt Judgment procedure

[AndrewD]

What is the procedure for a company to get a debt judgment against a person?

I received a phone call from a person claiming alleged debt of 8 to 10 years ago. Firstly I did deal with this company but I am sure I do not have outstanding debt and do not recall this alleged outstanding debt. I told him that after 3 years the prescription law apply. He said that I have a debt judgment against me from 5 years back. I told him that it is the first I hear about this, I was never informed. My postal address and telephone nr. is the same for more than 10 years. He reached me by this same phone nr. which is on their files. So, if they have my phone nr, why did they not inform my before now?

Also, I do not keep any legal documents regarding debt and such for more than 5 years, how do I prove anything?

So, is such a one sided judgment valid?

[Dave A]

Also, I do not keep any legal documents regarding debt and such for more than 5 years, how do I prove anything?

You got this the wrong way round - they need to prove their case.

Ask for a copy of the judgement. Might be an idea to get your free credit report on yourself too.

[AndrewD]

Thanks, I will do that.

If there is a judgement, is there not a legal procedure to first notify me of the intent to do so? They did have my contact details.

[Dave A]

Sometimes it's your recorded domcilium citandi et executandi with them that causes notification problems.

But even if they have judgement, if it's from five years ago and they've done nothing since to execute, it could also get interesting.

Anyway, let's not get ahead of ourselves - step by step. They claim the debt has not prescribed by virtue of judgement obtained. Time for them to provide evidence, otherwise there is no next step.

[Chatmaster]

Thanks, I will do that.

If there is a judgement, is there not a legal procedure to first notify me of the intent to do so? They did have my contact details.

Get the case number and the name of the court and try and see if can get the default judgement rescinded so you can actually get your chance to state your case.

This is simply my opinion but...
The way default judgments are being taken are in many ways "criminal". The complete process can happen without you knowing it. The only part that should be (but aren't) fair is when the sheriff of the court come and staple a piece of paper against your door (domcilium citandi et executandi) and then you have been notified. The court doesn't care if you have seen it, the court doesn't care if it was ever really served and the court doesn't really care if it was actually the correct address. So if the sheriff says you have been served and you are not in court, a default judgement is taken against you. This indirectly means that whether or not you actually do owe money is insignificant to the court because you didn't appear in court. This happens to 1000's of South Africans daily.

[sterne.law@gmail.com]

In terms of once a judgement is taken - a person has 30 years to act upon it - no prescription there.
Domicillum is used for service of documents and a person must inform the relevant parties when domicillum changes.

I agree with Dave ask them to furbish the proof of judgment. There are plenty of companies that collect outstanding money on commision basis and use these type of tactics.

If they can do so you can then explore your options. you can have the judgement rescinded but if you do owe the money you will still need to pay it provided teh collection procedures were started before teh debt prescribed. if the debt had prescribed it does not mean that it falls away. prescription is a defence taht you can raise at a S65 hearing.

[AndrewD]

Thanks for the replies.

Domicillum is used for service of documents and a person must inform the relevant parties when domicillum changes.

At the time of the alleged judgement my address was still the same as before when I did deal with the company. Until recently the property was stil in ownership and occupied by a family member. Also, if a person believe his business with a company is complete, for how long should he inform them about any address changes after completion.

[sterne.law@gmail.com]

I think you are going to find there is no judgement or without doubt a flaw in the service process.

But again one returns to - is the money owed? In that case your business with the company was not and is not complete.

[ABCAB]

What do you do with a company that has a judgment against you even after the full debt was paid. They just feel that other institutions should be aware that you could be a risk to them. Nedbank pushed me into a corner a few years back when I was 1,5 months in arrears on my house. I put it up for sale and sold in three days. The bank got there 700K four months after that, yet I have a judgment against me. Now I even have cases where I have had jobs offers declined because I am listed.

[Dave A]

It's been many, many years since I had to deal with this. Back then, the trick was to ask for a letter confirming the debt judgement as settled and date of settlement.

From there, if judgement was taken in a magistrates court, you might be able to get the judgement rescinded. If the judgement was taken in high court - well, you'd have that letter and a story to tell in mitigation. Sometimes it helped; sometimes not. Generally it meant five years without access to finance.

I don't know how much that scenario might have changed in recent years.

[Jill]

HI this is very interesting. I had a judgement taken against me when my company closed about 7 years ago. Now the judgement time seems to be over the company have got some attorneys to claim the money from me. I received an sms stating that I owed a huge amount of money but I thought that if judgement was taken then the company could not start all over again and take another judgement. Before they took judgement I offered to pay a small amount evey month to cover the debt -tehy refused this and took judgement. The debt would have been paid not if they had accepted. What should I do now?

[Dave A]

Am I the only one going "ouch"? On the face of it I don't see much wriggle room here.

Was it a summary judgement taken in a magistrate's court and is there any chance there was a flaw in procedure?
(He says grasping at straws).

[AndyD]

If they have a judgment and it's legally solid then you should probably expect the sheriff of the court soon to attach property to the value of the judgment. It might be worth getting legal advice but it's most likely trying to close the gate after the horse has bolted and possibly incurring costs for no benefit.

[wynn]

I find it strange that the sheriff processes the notice of judgement to an address where you may have been 10 years ago but knows exactly where to execute that judgement when he needs to?

[Jill]

Thanks

I have sorted it out and have arranged to pay off the outstanding debt without any interest. Win win all round