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Where the judgment has been taken against you and another party, and you would like to have the judgment rescinded for all parties, then it is necessary for the other parties to complete a confirmatory affidavit. The judgment is then rescinded against the other party in the same rescission application that you submit to court.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.