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Rescission of judgment explained

Aug 12 2014 16:48
Fin24

Cape Town - During tight financial times a lot of consumers fall behind in paying their creditors.

This often results in creditors taking judgment against the debtor. The judgments include the outstanding capital due, interest and legal fees.

Janine Myburgh of Myburgh Attorneys explains what rescission of judgment (having the judgment revoked or cancelled) involves:

Judgments are listed on the debtor’s credit profile – also known as being blacklisted.
 
In the event that a debtor has repaid the outstanding debt, legal fees and interest the debtor will only then be permitted to apply for the rescission of judgment.
    
South African law provides for a default judgment (the judgment) to be rescinded.
 
No provision is made in SA law to rescind a lawfully granted judgment where the judgment debt has been satisfied or discharged simply because the judgment is prejudicial to the applicant’s business activities - that is a negative credit rating.

Section 36(2) of the Magistrate’s Court Act 32 of 1944 states as follows:
 
If a plaintiff in whose favour a default judgment has been granted agreed in writing that the judgment be rescinded or varied, a court must rescind or vary such judgment on application by any party affected by it.

Consent to rescission of judgment - debt paid in full

An application for default judgment, where the plaintiff has agreed in writing to the rescission, the default judgment can be rescinded or varied.

The plaintiff (creditor) has to give written consent and it is important that the consent is a proper consent.

The consent affidavit should include the following:

- Identify the creditor;

- Identify the debtor;

- Identify of the person giving the consent;

- Confirmation of the authority of the person giving the consents and that person’s official position at the plaintiff (if it is not the plaintiff itself who gives consent);
 
- Confirmation of the existence of a debt, the existence of the default judgment and the case number;

- Confirmation of the consent.

The applicant (debtor) needs to serve the application on the plaintiff and a copy of the application must be filed with the Clerk of the Court.

The application will be set down for a specific date in court.
 
The application is heard in court before a presiding officer and in the event that the presiding officer is of the opinion that all the legal requirements have been met he or she will grant the rescission of judgment order.
 
Once the application is granted and the default judgment rescinded and deleted from the court file. A court order can be issued only after the court has rescinded the default judgment.

No consent obtained

The Magistrate’s Court is a creature of statute and can only perform in accordance with the court rules.

Rule 49 of the Magistrate’s Court Act gives the statutory requirements for the application of a rescission of judgment:

The application needs to be done within 20 days of obtaining knowledge of the judgment.
 
On application for rescission of judgment, an applicant must prove that there is good cause for the court to rescind the judgment.

The court may also rescind any judgment where it has good reason to do so.

- Fin24

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