Civil Debt in the Magistrate Court





LegalRights

An initiative by South African Law Centre

Ocotber 2013

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It contains snippets of legal information that are designed to help consumers understand legal processes, rules and regulations regarding the protection of their rights.
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IMPORTANT TO REMEMBER!!!
You can also rescind a magistrate court judgment on the basis that the judgment was erroneaously sought by the credit provider against you or that the court granted the judgment in error. You would have to set out grounds to establish either of the aforementioned by way of an affidavit in which you fully set out the grounds. It is advisable to consult a lawyer to evaluate your unique circumsatnces.
What happens if the court file containing details of my judgment is missing?
Where the court file is missing, the clerk of the court may then request you to open a duplicate court file in order for your rescission application to be heard. To open a duplicate court file, you may need to lodge an affidavit in support of opening a duplicate court file with the clerk of the court. Speak to the clerk of the court concerned and establish what the requirements are to open a duplicate court file in the particular court.
How to rescind judgments in the Magistrate Court
What is a Magistrate Court judgment?
When you are in default with your payment obligations to a credit provider, the credit provider may have a summons issued. If you do not respond to the summons, the credit provider is likely to request the court to issue a judgment against you. The judgment, being an order of court, can then be used to force you to make payment to the credit provider.
Can a Magistrate Court judgment be rescinded?

Yes! BUT, only if a rescission application is made to the very same court that granted the judgment. The credit provider who took the judgment against you must also consent to the rescission of the judgment. Therefore you should first pay up the debt then obtain the consent from the credit provider before applying to court to have the judgment rescinded.
Where do I submit my rescission application?

Once you have settled the judgment debt and obtained the required court documentation detailed herein, you must submit your application to the court that initially granted the judgment against you. You can find this information in your credit report, under “judgment” information.

If you are uncertain about the name of the court, or perhaps the name of the court or the case number differs in the credit records you have obtained, you can confirm the name of the court and/or case number from the judgment creditor or their attorneys. You can also ask the clerks of the courts concerned to confirm the case number and other details.
How do I put a rescission application together?
A rescission application consists of the following essential documentation:
  • Notice of Motion and service page if required
  • Applicant’s founding affidavit and confirmatory affidavit if required
  • A consent notice or consent affidavit
  • Draft court order
1. Notice of Motion:
This is the ‘covering letter’ of the application. The notice of motion principally notes the date the application will be heard in court (provided by the clerk of the court), as well as what the application is about. It is signed either by you or your attorneys.
2. Founding affidavit:
The applicant/defendant signs the founding affidavit. It contains provisions that confirm the applicant/defendant has settled the judgment debt and that the respondent/plaintiff consents to the rescission of the judgment.
3. What if my judgment was taken against me and another person?
Where the judgment has been taken against you and another party, and you would like to have the judgment rescinded for all parties, then it is necessary for the other parties to complete a confirmatory affidavit. The judgment is then rescinded against the other party in the same rescission application that you submit to court.
4. Consent Notice:
This notice is often referred to as a “Section 36(2) notice” and is signed by the respondent/plaintiff, or their attorneys of record. Some courts insist that the consent notice be drafted in affidavit format and will not accept a mere letter from the respondent/plaintiff.
Where the consent is signed by the credit provider’s attorney of record, you must ensure that the attorney of record states clearly in the consent that he or she is still the credit provider’s attorney of record and that he or she has the mandate and authority to sign the consent on behalf of the credit provider.

5. Draft Court Order:
The final document required is a draft court order, which you must prepare. It is referred to as a draft, because it is only issued once the magistrate who rescinds the judgment or when the draft court order is signed by the clerk of the court concerned. Take this with you when you go to court.
FAQ’s
How do I find out the case number under which the judgment was granted?
This is also contained in your credit report. You can also obtain this information from the judgment creditor or their attorneys.
Who is the Applicant/Defendant?
The person who intends to apply to court to have the judgment rescinded is the applicant/defendant and is typically the person against whom the judgment was granted.
Who is the Respondent/Plaintiff?
The credit provider who took the judgment against you is the respondent/plaintiff in your rescission application. The credit provider may sign the consent to rescind the judgment as the respondent/plaintiff. Alternatively, the credit provider’s attorneys of record may sign the consent as representatives of the respondent/plaintiff.
How does the service and filing of my rescission application work?
Once you have all the required documentation, you must check whether the respondent/plaintiff’s consent notice contains a waiver of service. Where it is not waived, you must “serve the application” on the respondent/plaintiff, in other words, provide them with a copy of your entire application. Ensure that the respondent/plaintiff signs that they have received the service. Submitting your application to the clerk of the court is known as “filing your application” at court.
The clerk of the court will provide you with a date when the application will be heard. You will have to appear in court on that day. You must ensure that you are dressed appropriately to appear in court as a magistrate may refuse to hear your application if you are not dressed appropriately. Appropriate dress code is usually a ‘jacket and tie’ for men and women should be dressed conservatively and neatly.
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