I thought so.
In addition to the prescription issue, the mag court seldom has jurisdiction.
To have jurisdiction over a contract issue, the entire contract and breach must be in that courts area. The court where you reside would also have jurisdiction.
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.
GM Anthony,
Thatnk you for your response. I am a not a member of the legal fraternity, so if you would kindly explain your post it would be appreciated.
The JHB mag court was not actually authorised to rule on the matter (or most unlikely). It is another common 'trick' used to prevent people defending a case.
Jurisdiction (authority to hear a case), like prescription must be raised as a defence.
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.
Forwarded message
From: CCCCCCC<ccccc@gla.co.za>
Date: Mon, Jun 10, 2013 at 2:20 PM
Subject: Re: First National Bank Card - Your ref: Ref
To: X
Hello Mr X.
Thank you for your email, contents of which have been noted.
I will forward this to our client and close the account on our side.
Kind regards,
C
Original Message
From: naidooyogin@gmanil.com
Sent: Monday, June 10, 2013 2:02 PM
To: cccccc@gla.co.za
Cc: X
Subject: First National Bank Card - Your ref: Ref
“Without prejudice, and all rights reserved.”
1. I refer to the above matter and further to my attached extinctive prescription claim;
2. I hereby serve my extinctive “PRESCRIPTION CLAIM” on you with regards to a First National Bank account ,
3. In keeping with legislative requirements, industry generally accepted norms and good corporate governance, kindly process my extinctive prescription claim and confirm to writing on your signed letterhead that this debt is indeed prescribed and that your computer systems and credit bureaus have/will be updated accordingly with regards to this prescription claim.
4. I submit that the standard manner in which a prescription claim is processed is as follows: The creditor establishes when the last payment was made. The debt then becomes due and payable a month later. Should a period of 3 years elapse from the date of the last payment the debtor becomes eligible for prescription. The creditor ascertains if the debtor is listed on XDS, Experian and Transunion ITC. The creditor establishes whether any events to interrupt prescription has transpired such as actual payments or acknowledgement of debt. Should these exceptions not apply, the creditor then confirms in writing on their signed letterhead that the debt is indeed prescribed, that they have/will update all credit bureaus and furthermore that they abandon their claim on this matter;
5. The last payment made on this account was on around 01 January 2007, This debt became eligible for extinctive prescription on January 2010 which I now formally claim.
Kindly revert and please advise accordingly
Kind regards,
X
“Without prejudice and all rights reserved.”
To return to the original issue of if they could proceed.
Even though you raised the issue, it does not preclude them form starting a legal process. Once a summons is received then prescription is raised as a defence.
Of course, if a matter goes to court, and prescription is succesfully raised, and there was a prior communication, the court may award punitive costs as they will not be happy with the matter having come to court.
You are not clear if you received summons for this matter.
You need to apply for a recission of the judgement, either because you did not get any notice of proceedinsg or you got notice, sent the email and thought it was resolved (and received no furtehr communications.)
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.
Citizen X (16-Dec-13)
Forwarded message
From: C<C@gla.co.za>
Date: Mon, Jun 10, 2013 at 2:20 PM
Subject: Re: First National Bank Card - Your ref: Ref
To: X
Hello Mr X.
Thank you for your email, contents of which have been noted.
I will forward this to our client and close the account on our side.
Kind regards,
C
Original Message
From: X
Sent: Monday, June 10, 2013 2:02 PM
To: c@gla.co.za
Cc: X
Subject: First National Bank Card - Your ref: Ref
“Without prejudice, and all rights reserved.”
1. I refer to the above matter and further to my attached extinctive prescription claim;
2. I hereby serve my extinctive “PRESCRIPTION CLAIM” on you with regards to a First National Bank account ,
3. In keeping with legislative requirements, industry generally accepted norms and good corporate governance, kindly process my extinctive prescription claim and confirm to writing on your signed letterhead that this debt is indeed prescribed and that your computer systems and credit bureaus have/will be updated accordingly with regards to this prescription claim.
4. I submit that the standard manner in which a prescription claim is processed is as follows: The creditor establishes when the last payment was made. The debt then becomes due and payable a month later. Should a period of 3 years elapse from the date of the last payment the debtor becomes eligible for prescription. The creditor ascertains if the debtor is listed on XDS, Experian and Transunion ITC. The creditor establishes whether any events to interrupt prescription has transpired such as actual payments or acknowledgement of debt. Should these exceptions not apply, the creditor then confirms in writing on their signed letterhead that the debt is indeed prescribed, that they have/will update all credit bureaus and furthermore that they abandon their claim on this matter;
5. The last payment made on this account was on around 01 January 2007, This debt became eligible for extinctive prescription on January 2010 which I now formally claim.
Kindly revert and please advise accordingly
Kind regards,
X
“Without prejudice and all rights reserved.”
As explained previously, I have moved to the Western Cape from GP, in Feb this year.
1) in early June this year, I had received a CALL (and I think that she emailed me Demand via Email) from Ms C who stated that I owed FNB Card and her company was acting on behalf of FNB.
2) I had requested her email address, and responded by claiming prescription on the debt.
3) I did receive confirmation to that effect: - "Thank you for your email, contents of which have been noted.
I will forward this to our client and close the account on our side"
4) Ms C (acting on behalf of the company had my Cell Number AND Email address (to which she had responded)
No summons was delivered to me in the Western Cape/emailed to me etc... - I assume that the original domicilim address was used (for all intents and purposes, was in Roodepoort). IIRC, FNB Card has a clause to the effect that I consent to any Magistrates Court being used
I have not received the summons personally, here in the Western Cape, or any notice of informing me otherwise of my prescription claim - Can I apply for a rescission here in the Western Cape ?Originally Posted by sterne.law@gmail.com
LegalWise assists you with drafting a letter in which prescription is claimed. So, if you have a LegalWise policy, it will prove to be very beneficial to you with matters regarding prescription
“How can LegalWise assist you?
LegalWise can assist you with the following:
· write a letter to your creditor stating that prescription has lapsed, been delayed or interrupted; and
· calculate your prescription period for you.”[1]
[1] LegalWise: http://www.legalwise.co.za/index.php?cID=170. Accessed 20 January 2014
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