# Regulatory Compliance Category > General Regulatory Compliance Forum >  Rescission of judgement

## Citizen X

*Hi guys,
*
*1.* affidavit for the consent to rescission of judgement.doc*The 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you take the affidavit to the attorney, you pay the attorney, he then appears in chambers and has the judgement rescinded;*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     * *Now, the magistrate is not going to give you a certified letter stating that the judgment was rescinded, the court will give you nothing!*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*



*4**9**. (1) A party to proceedings in which a default judgment has been given, or any person affected by such judgment, may within*
*2**0 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!!!*

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## 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!

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## 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 :Nono: (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

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## 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?

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## 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..

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## 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.

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## 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?

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## 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

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## 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?

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## 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

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## MissYona

Thank you so much for your response. We will follow it up

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## NuriEly

Hi There

I hope someone can assist me with mu query.

My husband made a motor vehicle accident in 2008, he drove in to a rented car. He then went with the lady to police station and gave all his particulars.
We then tried contacting the insurance people to pay the damages, they then gave us a name of someone who we need to contact. I then tried calling the person everyday but I always just seem to get through to his PA.We tried several times to get through to the people who we were told to contact to no avail. 2 years down the line someone rocks up at my husbands door step and hands him a courts summons. Which i don't understand, they never contacted him via telephone or post. Anyway he then appeared in court for this case. He had such a wonderful credit report as he doesn't really like to buy things on credit, we then went to renew our phone contracts and he is told he has a judgment on his name they cannot help us. I then contact the lawyers who we are paying and ask what exactly are we paying for why are they giving us double due as to what the accident value was. the lady sends me the court letter, the quote and to my surprise the Fax i sent in 2009. So please tell me if they  received my fax where I ask them who and when we must pay, why did they have to take the case to court and put a judgement on his name? why did they have to make a very good payer into a bad one? I hope someone can help as he cannot renovate our home or buy a new car - if something must be done I have to do it. We did not run away or refuse to pay, we actually wanted them to contact us instead they were so lazy and not doing their jobs and we now have to pay the price.

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## Citizen X

> Hi There
> 
> I hope someone can assist me with mu query.
> 
> My husband made a motor vehicle accident in 2008, he drove in to a rented car. He then went with the lady to police station and gave all his particulars.
> We then tried contacting the insurance people to pay the damages, they then gave us a name of someone who we need to contact. I then tried calling the person everyday but I always just seem to get through to his PA.We tried several times to get through to the people who we were told to contact to no avail. 2 years down the line someone rocks up at my husbands door step and hands him a courts summons. Which i don't understand, they never contacted him via telephone or post. Anyway he then appeared in court for this case. He had such a wonderful credit report as he doesn't really like to buy things on credit, we then went to renew our phone contracts and he is told he has a judgment on his name they cannot help us. I then contact the lawyers who we are paying and ask what exactly are we paying for why are they giving us double due as to what the accident value was. the lady sends me the court letter, the quote and to my surprise the Fax i sent in 2009. So please tell me if they received my fax where I ask them who and when we must pay, why did they have to take the case to court and put a judgement on his name? why did they have to make a very good payer into a bad one? I hope someone can help as he cannot renovate our home or buy a new car - if something must be done I have to do it. We did not run away or refuse to pay, we actually wanted them to contact us instead they were so lazy and not doing their jobs and we now have to pay the price.


Hi NuriEly,
A lot of emotive issues there. I can understand!
 The better approach is to deal with the fact of judgment. Once a creditor has already obtained judgment arguing the questions of fact at this stage won’t change that detrimental situation. Bear in mind that a judgment debt is collectable for 30 years. In practice one of two things can be done(one of which is already not an option for its deadline has come and gone); 1: Appeal the judgment: Not an option as you only have a few days to appeal and even when you appeal it must be on legally valid grounds. 2: Review: This remedy is reserved for cases where there were procedural irregularities such as bias, gross irregularity in civil court procedure etc.
So your predicament is not an easy one to advise satisfactorily on as you already have a judgment. Should you feel so bereaved to a point where you feel the attorneys who obtained the judgment acted unethical or dishonorably, you may report them to the law society with which they are registered, failing which you can apply for rescission of judgment which requires full payment, a consent to rescission affidavit and an attorney to do the actual rescinding.

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## Dave A

> failing which you can apply for rescission of judgment which requires full payment, a consent to rescission affidavit and an attorney to do the actual rescinding


A note on this, as quite often folk don't know a lawyer to turn to - Quite often the lawyers who took the judgement will also rescind the judgement for a pretty nominal fee - once the debt is paid up, of course. You just need to ask. Going that route saves a lot of running around chasing affidavits too, and will more often than not work out cheaper than getting your own lawyer involved.

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## Justloadit

What intrigues me is how a judgement came to pass with out them knowing about it. 

Was there no effort to find them?
Is this purposely done to extract more out of the victim?

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## Dave A

> What intrigues me is how a judgement came to pass with out them knowing about it.


I have to say I pondered over this little snippet for some time:




> Anyway he then appeared in court for this case.


But I couldn't think of anything constructive to say out of it that would move the matter forward at this point.

Clearly there was awareness. Perhaps not enough understanding of what could have been done at the time and the consequences thereof.

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## MZEly

> 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?


Hi Dave, 

I went to court saw the Sheriff of the court and he told me all that it was not necessary to appear in front of a  judge. He then just gave me a some documents to sign, an affidavit of damages, quote ect. He then told me all I need to do is call the attorneys and make arrangement for payment. My problem is that they had my details, my phone number, address ect and I even tried contacting them for 2 years but yet they still did not bother contacting me, they just took the easy way out and put a judgement on my name, i did not intentionally drive into the car and besides their was nothing wrong with car I drove into. I did not run away or tell them I do not want to pay them, I have proof that they received my fax in 2009 and that did not contact me after i sent them the fax. I asked the lady what am I paying for and why so much she sends me the fax i sent them in 2009? How can they get away with things like this, If anyone looks at my payment profile they will see i do not run away from debt I pay for things i need. So why must i get punished so harshly if i was trying to get hold of them?

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## Dave A

Vanash did a post a while ago on what to do if you receive a summons and intend to defend.

Perhaps a post on what to do when you receive a summons and want to settle (without risking running foul of court processes) wouldn't go amiss.

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## sterne.law@gmail.com

Settling is not good for the legal bills.

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## Dave A

> Settling is not good for the legal bills.


Obviously first prize is a *negotiated* settlement agreement where each party is responsible for their own legal costs  :Wink: 

My concern arising from the case above is MZEly appears to have been seeking a settlement, but did not know what to do at that point to press vigorously for a settlement and ensure a judgement was not taken against him.

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## Citizen X

> Obviously first prize is a *negotiated* settlement agreement where each party is responsible for their own legal costs 
> 
> My concern arising from the case above is MZEly appears to have been seeking a settlement, but did not know what to do at that point to press vigorously for a settlement and ensure a judgement was not taken against him.


The irony is that a settlement which is an offer to pay can be made directly to plaintiff’s attorney right up to the point before judgment is actually granted i.e. they served summons, judicial process is already underway. Even here, it would have been in everyone’s best interest to accommodate any request to make payment. From what I can deduce there are many defendants who reached a settlement with the plaintiff while the matter was already in the courts hands. The plaintiff should see it as you basically want to pay. It’s possible that the attorneys in question felt that a judgment debt with legal costs will work better for them as they aware that the defendant can pay. So why pay less and when you can pay so much more with the legal costs.

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## MZEly

> The irony is that a settlement which is an offer to pay can be made directly to plaintiffs attorney right up to the point before judgment is actually granted i.e. they served summons, judicial process is already underway. Even here, it would have been in everyones best interest to accommodate any request to make payment. From what I can deduce there are many defendants who reached a settlement with the plaintiff while the matter was already in the courts hands. The plaintiff should see it as you basically want to pay. Its possible that the attorneys in question felt that a judgment debt with legal costs will work better for them as they aware that the defendant can pay. So why pay less and when you can pay so much more with the legal costs.


I agree, I tried contacting them for 2 years and they just failed to return my calls. When i asked the lady at the attorneys office what am i paying for she send me the fax i sent them in 2009 which proves to that they received all my calls, faxes ect... so why could they just not pick up  the phone or send me a letter. I still have the same phone number I had 4 years ago. Honestly I feel that this was just an unfair judgment i was not running away or trying not to pay them, i was doing the what i was suppose to trying to contact them to pay. What do they do send me to court.

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## Dave A

MZEly, I certainly empathise with your frustration (I think we all do). The problem right now is it seems the opportunity to rectify their failure to respond to your "non-court efforts" might already have been missed. And for your part, you have failed to respond correctly to their "court process driven efforts".

Yes, unwittingly on your part, I'm sure - but the nature of law means you remain responsible and accountable for this lapse on your part regardless.

Unless someone comes up with a better idea, the best I can hope for now is to at least equip you (and anyone else who might read this discussion) as to how to prevent ending up in this situation in future.

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## Ashsan

Hi Everyone

I hope someone can give me some advice.

My client entered into a rental agreement with an attorney who subsequently obtained default judgment against him for late payment penalties i.e. paying the rent on the 3 Jan and not 1 Jan. As I understand it, he missed one month rental, and then the Attorney (Plaintiff) suddenly put in a claim for all the month's late payment penalties even though he did not enforce this provision before. To cut a long story short, we want to settle the debt (judgment debt was R17 400) but the attorney is demanding R40k to settle this. Furthermore, the rental agent is willing to do an affidavit to state that no outstanding rental was owing, as this was subsequently settled by my client. The only thing he can claim is late payment penalties. Furthermore. this attorney is refusing to engage with us and will not give us a break down as to how he got to the R40k. My client wants to settle all outstanding monies actually owing, but not if it is not owing.

Please help!

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## Citizen X

Hi Ashsan,

The Attorney is obliged to provide you with a statement which shows how he arrived at that figure.

Try this:
Email him/her and state the following:


Dear Sir/Madam,



I would like to enquire as to which law society you are registered with so that I may file a complaint against you for not granting my request for a detailed statement as to how you arrived at the amount of R40 000 when judgment debt was for R17 000.

Your statement should reflect legal costs and all other costs associated with this amount such as interest etc.

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## Ashsan

Great thanks, have just given him until C.O.B tomorrow to give us a statement, otherwise I will report him to the Law Society. He is clearly taking a chance, and then says HE wants to do the rescission, even though I have my own attorney to do the rescission for probably a tenth of his fees.

Thanks again

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## Citizen X

> Great thanks, have just given him until C.O.B tomorrow to give us a statement, otherwise I will report him to the Law Society. He is clearly taking a chance, and then says HE wants to do the rescission, even though I have my own attorney to do the rescission for probably a tenth of his fees.
> 
> Thanks again


I am aware that there are some unethical practitioners out there!
Hey, you can actually do the rescission yourself:

Have a look at this link:

http://www.theforumsa.co.za/forums/s...rney?highlight=

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## Ashsan

Hi

Quick update and maybe some feedback please :Smile: 

SO i got quick response from this attorney. He says he is in hospital but gives me a verbal non-nonsensical break down of the costs, i.e. because my client was "aggressive" he had to send a senior partner out to the premises (absolute rubbish first I have heard of this).

We have since ascertained that the amount we owe is R10200 excluding costs (no rental outstanding, just late payment penalties so the summons is wrong!!) We have proof that we paid all rental. HE says he wants R30k. And he will not budge. I then said we cannot accept and he says we can get a cost consultant to do it and he will fight this aggressively, and assures me the costs will be in excess of this. I offered R20k in full and final settlement. But he wont accept. I am thinking I need to get a good lawyer onto this. but with limited funds, their fees could be more. Any advice? I am entitled to a breakdown of his legal fees surely? I thought we would only be liable for reasonable costs incurred.

Thanks so much

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## Citizen X

> Hi
> 
> Quick update and maybe some feedback please
> 
> SO i got quick response from this attorney. He says he is in hospital but gives me a verbal non-nonsensical break down of the costs, i.e. because my client was "aggressive" he had to send a senior partner out to the premises (absolute rubbish first I have heard of this).
> 
> We have since ascertained that the amount we owe is R10200 excluding costs (no rental outstanding, just late payment penalties so the summons is wrong!!) We have proof that we paid all rental. HE says he wants R30k. And he will not budge. I then said we cannot accept and he says we can get a cost consultant to do it and he will fight this aggressively, and assures me the costs will be in excess of this. I offered R20k in full and final settlement. But he wont accept. I am thinking I need to get a good lawyer onto this. but with limited funds, their fees could be more. Any advice? I am entitled to a breakdown of his legal fees surely? I thought we would only be liable for reasonable costs incurred.
> 
> Thanks so much


Instruct an attorney to take the matter on review on the basis that you were never served with a summons..

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## sterne.law@gmail.com

Maybe spend a grand or two and get an opinion.
Firstly on a rescission application or similar to nullify judgement.
Secondly, the actual merits. From the amount of penalties it seems the calculation was over a prolonged period. Although most leases have a waiver clause, not charging tenant may constitute a waiver.
There is a good chance the  contract may fall short on the CPA aspect of contract terms.
I suspect, when the 1 month was in arrears, the attorney decided to claim the penalties to make the court trip worthwhile. 
The money spent on the consult will at least determine if its worth negotiating further, or settle, or tell him to take a hike.

I suspect that the court papers and procedures were probably not 100 percent truthful, a fact that the law society and the court may not be happy with. 
You should get the court file so that you have all the info at hand.

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## Citizen X

*Rescission of a judgment by application proceedings in terms of rule 49(8) and how prescription can help
*
When rescission of judgment is mentioned, many assume that such rescission can only take place when they have paid the judgment creditor in full, obtained a ‘consent to rescind affidavit,’ from the judgment creditor and instruct an attorney to rescind the judgment.

1.   Rule 49(8) of the Magistrates Court Rules provides

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.

2.   _Void ab origine_ simply means not valid from the beginning
3.   Though there are many different scenarios that may play out in terms of this section, I’m going to use an example of extinctive prescription

4.   In May 2015, Mr Jones is contacted by an attorney who demands payment on a judgment debt. Mr Jones had no knowledge of this Judgement debt until this point.

5.   *The facts:* In January 2007, Mr Jones did take out a loan with ABC finance, regrettably he lost his job. On 18 February 2012, DEF Inc sues out summons, a return of service is provided by the sheriff, but Mr Jones never received such summons. An application for default judgment is initiated, and default judgment is granted in April 2012.

6.   The question of _void ab origine_  and how it applies: Had Mr Jones received a summons  on 18 February 2012, he would have entered an appearance, filed a plea on merits as well as a special plea of prescription(This would have destroyed the entire action), as the debt essentially prescribed in January 2010)

7.   How does one go about rescinding a judgment under such circumstances?

Motion proceedings on notice to all parties. In your application, you must be able to show clearly that the fact of judgment came to your knowledge within one year of knowledge of this voidness( In this illustration Mr Jones found out that there was a judgment against him in May 2015). You must be able to show that as at the time of judgment, you would have had a valid defense. Mr Jones will be able to show that he had a valid defence.

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## JacquesPN

I just found out that I have Judgement against me, I never received a summons and thus did not know about the case and did not go. Apparently it was granted on the 11/11/2011 for monies that I owed. I have tried to contact the lawyers who submitted the case to try found out more details but they no longer exist, I then tried contacting the bank but they told me I have to work through the lawyers, even after I pointed out that the law firm was no longer in operation.

What are my options to have this matter resolved? Can rule 49 help as I was not informed about the case and would have gone had I known?

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## Citizen X

> I just found out that I have Judgement against me, I never received a summons and thus did not know about the case and did not go. Apparently it was granted on the 11/11/2011 for monies that I owed. I have tried to contact the lawyers who submitted the case to try found out more details but they no longer exist, I then tried contacting the bank but they told me I have to work through the lawyers, even after I pointed out that the law firm was no longer in operation.
> 
> What are my options to have this matter resolved? Can rule 49 help as I was not informed about the case and would have gone had I known?


It can if you had a valid defence as at the time that judgment was granted

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## JacquesPN

> It can if you had a valid defence as at the time that judgment was granted


I am not certain of the validity of my defense as I am not certain if I actually owed this money. At that time I was indebted to ABSA for a loan and over draft, I settled the amount given believing this was for both amounts.

So it could be that I was incorrect and if fact only settled the one amount, or this could be a fault on their side. ABSA says that they do not have the documents and I need to contact the lawyers, but I am unable to trace them down.

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