Rescission of judgement

[Citizen X]

Hi guys,

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you take the affidavit to the attorney, you pay the attorney, he then appears in chambers and has the judgement rescinded;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 Now, the magistrate is not going to give you a certified letter stating that the judgment was rescinded, the court will give you nothing!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!!!

[chantalgv]

hi there

I have a default judgement against me. The account has been settled and the creditor sent me a letter confirming that it was paid in full, but refuses to provide me with a letter of consent to rescission. They are are not opposed to the rescission, but insist that I bring them a letter of consent which they will sign and stamp.

The magistrate's court where the judgement was initially granted is happy to assist me with the rescission (and all necessary paperwork) provided that I furnish them with a letter of consent. According to them the letter has to state that consent is being given in terms of Rule 49 (I am clueless).

What should this letter of consent look like? I have done numerous web searches, but cannot find anywhere that explains the format and wording.

Any assistance would be greatly appreciated!

[Citizen X]

Hi Chantal,

This is destiny talking to me , Loneranger, you need to be au fait with rule 49 for a special date on 25 October 2012 with a ‘staid academic!’
Rule 49 is reference to the recently amended magistrates court rules which pertain to the Magistrates Court Act 32 of 1944.

1. It’s apparent that the judgement creditor doesn’t want to simply give you the consent to rescission affidavit, that’s why, in my layman’s opinion, if I were in your position, I would have put it to the creditor: ‘I will pay you in full and final settlement only if you agree to confirm to your signed letterhead, that should I pay, you will consent to rescission.’
2. From what I deduce that want you to use what is called an application proceeding, form 1, annexure a mag court rules, in short a form supported by an affidavit stating that you want judgement rescinded on grounds that you’ve paid BUT the judgement creditor is not consenting, so you will have to give them notice in the prescribed manner, date, time, purpose, venue of hearing….Might I suggest that you get an attorney, if you can’t afford one, go to the legal aid board or a university law clinic, they very fair, i.e. means test etc;
3. For better understanding though, this is what rule 49 states:-

“49. Rescission and variation of judgments
(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
sub-rule (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 plaintiffs 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 sub-rule (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.”
..I will provide you with an example in due course(the link at the end) BUT, this document is not meant for you to go and actually use in court(I'm not preparing a court document for you to actually use! I'm merely giving you an example(as said, in due course, the loneranger is fighting a symbolic war on several fronts right now..no time to even breathe!!! It's strictly and only meant to illustrate an example for academic understanding, no more and no less!!! So Chantal, my terms and conditions are very simple, you not to use this document yourself in court and I'm not preparing any court document for you, I'm merely giving you an academic example from the perspective of protracted debate and academia!http://www.theforumsa.co.za/forums/a...7&d=1329316177

[Selepeks]

Vanash-Naick. Very Helpfull information and I am in this situation. Is section 49 ; 8 applicable to my case?

I learned that I have judgement on my name for the school fees of my sister in-law (Ms JJ). In 2005 I applied for school enrolment for Ms JJ. At that time I and my father in law (Mr JJ) completed a contract which required me to acknowledge payment the school fees. The principal call me and Mr JJ to clarify school fees responsibility. After a long discussion with the principal, he produced a new contract form where we signed (Me as witness) and the principal signed that he admission of the Ms JJ. Since then the school contacted Mr JJ to make any arrangement for school fees payment.

I was shocked to receive a summons addressed me as Mrs and I request my wife and Mr JJ to make a follow up with the lawyers. They did and made the necessary agreement. 6 months later I learned that I have judgement on my name. I requested the lawyer and the school to provide with the contract signed, they gave me the form that the principal rejected, without the principal signed. Whereas the contract signed with two parties is not available? Is the contract valid even if the second party did not signed?

When I approach the lawyer she said “You have been provided with the duly signed contract (the rejected contract) where you admit liability to pay school fees", however the contract reflect the signed of Mr JJ and mine without the principal signature. How valid the contract without the second party?
When I question the validity of the contract and the agreement later made by Mr JJ with the lawyer, she said, "The acknowledgment of debt and contract are two different things. Action was taken against all parties that undertook to pay the fees being you and Mr JJ. Mr JJ on receipt of our papers came to our offices and acknowledged the debt. You are jointly and severally liable until this debt is paid in full". However when I make my investigation the court action was again Mrs KS not Mr KS and the courts action was again Mrs KS and judgement on the blacklisting is Mr KS.

DO I HAVE A CASE?

[Citizen X]

Vanash-Naick. Very Helpfull information and I am in this situation. Is section 49 ; 8 applicable to my case?

I learned that I have judgement on my name for the school fees of my sister in-law (Ms JJ). In 2005 I applied for school enrolment for Ms JJ. At that time I and my father in law (Mr JJ) completed a contract which required me to acknowledge payment the school fees. The principal call me and Mr JJ to clarify school fees responsibility. After a long discussion with the principal, he produced a new contract form where we signed (Me as witness) and the principal signed that he admission of the Ms JJ. Since then the school contacted Mr JJ to make any arrangement for school fees payment.

I was shocked to receive a summons addressed me as Mrs and I request my wife and Mr JJ to make a follow up with the lawyers. They did and made the necessary agreement. 6 months later I learned that I have judgement on my name. I requested the lawyer and the school to provide with the contract signed, they gave me the form that the principal rejected, without the principal signed. Whereas the contract signed with two parties is not available? Is the contract valid even if the second party did not signed?

When I approach the lawyer she said “You have been provided with the duly signed contract (the rejected contract) where you admit liability to pay school fees", however the contract reflect the signed of Mr JJ and mine without the principal signature. How valid the contract without the second party?
When I question the validity of the contract and the agreement later made by Mr JJ with the lawyer, she said, "The acknowledgment of debt and contract are two different things. Action was taken against all parties that undertook to pay the fees being you and Mr JJ. Mr JJ on receipt of our papers came to our offices and acknowledged the debt. You are jointly and severally liable until this debt is paid in full". However when I make my investigation the court action was again Mrs KS not Mr KS and the courts action was again Mrs KS and judgement on the blacklisting is Mr KS.

DO I HAVE A CASE?

Firstly, you don’t mention whether you were served with a summons and whether you entered an appearance to defend. This was your key opportunity to clear your name. Now that judgment is present, it makes things a bit more complicated but not impossible to unravel. It will require court process though!
I think here the crisp issue is the difference between the buyer and user of a product or service. For instance a parent takes out a cellular contract for their 14 year old child, though the child is the user of this service, the parent is the buyer and therefore liable.
Initially, you were the buyer, as you approached the school and procured the service of tuition on behalf of your sister in-law. You clearly done this in good faith. Later it was clarified that the father of Ms JJ is responsible for the payment of school fees. Summons should have been sued out against him. In the schools defence, you and the father accepted responsibility and that’s why summons was sued out against both of you. This does not mean that you are responsible, had you entered an appeared, you could have filed a plea on merits and clarified i.e. denied liability and stated your defense that you were not in fact responsible but your father in law was.
This matter will inevitably require court process. Instruct your lawyer to have the judgment rescinded on the basis that was granted in error i.e. the wrong person, your lawyer will send notice to the school and they can oppose it, whether they do or not is irrelevant. You do have merits. Your father in law should however do the responsible thing and assist in getting your name cleared.
The typographical error in judgment is of no real consequence.
This matter can be resolved! It will require your father in law taking full responsibility and carrying the costs of clearing your name..

[MZEly]

Hi There, I had an accident just over 4 years ago road into a rented car. I went with the driver to police station gave my details and did what an honest guy would do. I then received a lawyers letter stating i need to contact them, which i did back in 2009. I emailed, faxed, called and was always told the person i need to speak to not available and end up speaking to a receptionist or PA. it went on for two years, all my contact details remained the same and i tried for two years to speak to someone regarding payment of the damages. Eventually a year later i get a summons to appear in court. I went to court and was told what i need to pay. I then applied for a cell phone contract to my existing contract and was declined and told i have a judgement against my name, I have a perfect payment profile as i do not like making debt, i bought a house and lucky for me the judgement only reflected after my house went through. However its seems I cannot purchase anything on credit because of this judgement, I then contacted the lawyers again and asked them to send me a copy of the contract, they then send me the copy and also a telefax which i sent in 2009 which proves i was trying to make payment arrangements with them, I then replied to them and ask them why was I summons to court if I was being an honest person trying to settle my debt, and my contact details are on the telefax and hasn't changed. I have to date not received any response to my mail and we wanted to buy another house but i'm afraid I wont be helped due to the judgement even thou i have an excellent payment profile.

[Dave A]

Eventually a year later i get a summons to appear in court. I went to court and was told what i need to pay.

You're pretty light on detail as to what happened in court. Did you raise the issue of the plaintiff's failure to respond to your approaches to them?

[Elridge69]

Good morning

Can I as a layman do the application myself to save on costs ?If so ,please provide procedures and forms .

Thank you

Elridge

[MissYona]

Good day. A while ago my husband took out a loan from a certain bank. Unfortunately due to some financial problems he missed a couple of payments but he later managed to solve things and pay off the loan. Upon finishing the payment he requested a credit report and found out he had a judgement taken out against him by some lawyers on instruction of the said bank. When he contacted the bank they denied having instructed the lawyers. They(the bank) then followed it up and it has now emerged that the lawyers acted without the instruction of the bank and on top of that they drafted a fake document and forged my husband's signature on the document that says he allows them to attach a judgement to his name.

The bank is busy corresponding with the lawyers to have the judgement removed. My question is, what legal action-if any- should we take? How should we handle this situation?

[Citizen X]

They(the bank) then followed it up and it has now emerged that the lawyers acted without the instruction of the bank and on top of that they drafted a fake document and forged my husband's signature on the document that says he allows them to attach a judgement to his name.

The bank is busy corresponding with the lawyers to have the judgement removed. My question is, what legal action-if any- should we take? How should we handle this situation?

A very good afternoon to you MissYona ,


Your post demonstrates that there is indeed a crisis in the legal profession and that this crisis is of an ethical nature.

1. You should report the relevant attorney to the Law Society that they belong to(The attorney has a legal obligation to provide you with this information);
2. You could file criminal charges of fraud against the relevant attorney