Talk to an attorney
Applying for a consent rescission of a judgment can be complicated. Consider talking to an attorney to go over your options. One way to talk to an attorney is to visit a free legal clinic. Clinics provide general legal information and give brief legal advice. For more information, please see our webpage on Institutions for Legal Assistance.
Matters to bear in mind when bringing an application for rescission of judgment.
South African law provides for a default judgment (“the judgment”) to be rescinded. There is no provision 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 (i.e. a negative credit rating).
For purposes of a consent rescission the law (section 36(2) of the Magistrate’s Court Act 32 of 1944) provides as follow:
“If a plaintiff in whose favour a default judgment has been granted agreed in writing that the judgment be rescinded or varied, a court must rescind or vary such judgment on application by any party affected by it.”
On application a default judgment where the plaintiff has agreed in writing can be rescinded or varied. “On application” means that the applicant needs to serve on the plaintiff a copy of the application and file with the clerk of the court the application.
The fact that your name might be listed with a credit bureau does not necessarily mean a judgment was recorded at court. It is therefore important to establish whether the Johannesburg Magistrate’s Court has a record of the judgment. The plaintiff/judgment creditor (the party who applied for judgment) or the attorney for the plaintiff/judgment creditor should have a copy of the judgment. The court will have the original judgment recorded on the outside of a case cover (“the court file”). To access the court file one should have the correct case number. In the event that one is unable to obtain the court file from the court personnel (the court file might be lost or destroyed) then the plaintiff/judgment creditor or his/her/its attorney should be approached to obtain to obtain proof of the existence of the judgment. An affidavit by the plaintiff/judgment creditor or his/her/its attorney together with the necessary relevant documents to prove the existence of the judgment should then be filed with the clerk of the court. Without proper proof of the existence of a judgment the court will not consider your application for rescission of judgment.
It is generally expected that the parties should keep their copies of the judgment too. The parties should also keep records of all other transactions related to the judgment.
Proper Consent by a Creditor for Rescission of a Default Judgment
If the judgment debtor has paid the judgment and all accumulated fees, costs and interest, the creditor should generally be inclined to give consent to rescission of judgment. For that purpose the judgment debtor should approach the plaintiff/judgment creditor or his/her/its attorney to obtain the written consent to rescission of judgment. There is however no requirement in law that obliges a plaintiff/judgment creditor to give a consent to rescission of judgment.
Ensure that the written consent from the creditor or his/her/its attorney is a proper one. A proper consent would be contained in an affidavit, which would:
(i) identify the creditor;
(ii) identify the debtor;
(iii) identify the person giving the consent;
(iv) 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);
(v) confirm the existence of a debt, the existence of the default judgment and the case number;
(vi) confirm the consent;
Generally (and to prevent unnecessary delays and other difficulties) you should ensure that the plaintiff/judgment creditor or his/her/its attorney is properly identified and sufficient allegations should be made to show that the person giving the consent is properly authorised and mandated to do so. This is usually done by obtaining an affidavit from the plaintiff or a duly authorised person in the employ of the plaintiff (e.g. where the plaintiff is a bank, a company or close corporation) or the duly mandated attorney of the plaintiff. This tells the court that the plaintiff is satisfied that the case is finished and the court may rescind the judgment.
The consent affidavit may also deal with matters ancillary to the application; namely a waiver of service if the plaintiff is amenable to waive service of the application.
If the original plaintiff/judgment creditor has sold or ceded the judgment to a third party, that third party steps into the shoes of the original plaintiff/judgment creditor for collection purposes. It is that third party that should give the consent. The affidavit must indicate clearly why the third party and not the original plaintiff/judgment creditor is giving the consent.
Application for consent rescission of the default judgment
Once you have obtained a proper written consent to rescind the default judgment you have to serve and file an application for rescission. The forms for filing an application is in the Forms section below and for more information about the application procedure see our webpage on the Practice Guidelines, which should be read together with rule 55 of the Magistrate’s Court Act.
Where the plaintiff/judgment creditor did not waive service the judgment debtor must serve in terms of rule 9 a copy on the plaintiff/judgment creditor and must file the application in the court as well as the Affidavit of Service (Form4) . As part of the application the judgment debtor must attach his/her own affidavit [Form 2A and Form 2B ] as well as the consent affidavit and provide proof that the plaintiff/judgment creditor has consented. Because the application is served and file defendant/judgment debtor, the plaintiff/judgment creditor must be given an opportunity to respond. If the application is granted the court will rescind the default judgment by deleting the judgment from the face of the case cover or by recording the fact of the rescission on the face of the case cover. The procedures for applications are governed by rule 55 . The forms for filing a motion are in the Forms section below, but for more information about motion procedures, see our webpage on Motions.
Once the application is granted and the default judgment rescinded and deleted from the case cover, the case cover (court file) is then fetched by the Clerk of the Court from the Magistrate presiding in the motion court. After perusing the case cover and the record of the proceedings the Clerk of the Court may sign the Court Order. The judgment debtor has to complete and print the Court Order [see Form 3 ] and then handed to the Clerk of the Court for issue. A Court Order can be issued only after the Court has rescinded the default judgment.
Lost Files and Off-Site Court Files
All court files issued in 2007 and earlier are currently kept off site; i.e. those court files are not inside the Court House Building. In the instance where your matter is a case number that contains a “2007” or older case number (e.g 12345/2007; 12345/2006; 12345/2005 etc) you should contact the senior clerk of the court Ms Pumla Mapukata at Room 1041 (telephone number 011- 491-5118) for assistance. Without a court file your application will not be considered as the court would be unable to rescind the default judgment.
Costs and Charges
In the event you elect to conduct your own affairs (i.e. without any legal assistance by your own lawyer or one provided by the Institutions for Legal Assistance) insofar as it relate to the consent rescission of the default judgment then the completing and utilisation of any of the forms on this website as well as the subsequent handing of such completed forms to an official of the Department of Justice at the Magistrate’s Court House in Johannesburg (i.e. the clerk of the court) does not attract any costs or charges. The whole process (if not using a lawyer) from completion to finally getting the court order is FREE OF CHARGE. Any clerk of the court or court official charging a fee or charge for such services would be acting illegally and should immediately be reported to the Head of the Civil Court Administration (Mr Ramolefe Room 1045 telephone 011 491 5317); the South African Police Services and the Chief Magistrate (Mr Mashile telephone number 011 491 5000).
Forms for the Applicant
Court Order (To be signed by a Clerk of the Court)