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A Fin24 user is stuck with a garnishee order for an account he says he never had. He writes:
Can anyone help me to sort out a garnishee order that was issued against my name.
I did not have the account that it was issued for. The attorney, who issued the order, is not helping me to solve the matter.
READ: Haunted by garnishee fraud
Janine Myburgh of Myburgh & Associates, responds:
Rescission of judgment
During tight financial times a lot of consumers fall behind in paying their creditors. This often results in your creditors taking judgment against you.
The judgment includes the outstanding capital due, interest and legal fees. 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South African law provides for a default judgment to be rescinded. No provision is made in our 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 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If a plaintiff, in whose favour a default judgment has been granted, agreed in writing that the judgment be rescinded or varied, a court must rescind or vary such judgment on application by any party affected by it.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default judgment, where the plaintiff has agreed in writing to the aforesaid rescission, the default judgment can be rescinded or varied.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 the person giving the consent;
- Confirm the authority of the person giving the consents and such person’s official position at the plaintiff (if it is not the plaintiff itself who gives consent);
- Confirm the existence of a debt, the existence of the default judgment and the case number;
- Confirm 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 then he or she will grant the rescission of judgment order.
Once the application is granted the default judgment rescinded and deleted from the case cover (court file). A court order can be issued only after the court has rescinded the default judgment.
No consent obtained
READ: Major garnishee fraud uncovered
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. The court may use its discretion to rescind the judgment or not where it has good reason to do so.
Garnishee orders
A garnishee order may be rescinded provided the person bringing the application shows a valid reason for doing so.
Rule 49 also applies in this instance.
WATCH: Garnishee orders in a nutshell
- Fin24
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