Court judgments for debt effect the lives of a lot of South Africans. What is the current state of play. In this article we will confine ourselves to the Magistrates Court.
What judgments may be rescinded? The Magistrates Court Act 32 of 1944 notes [36(1)] The court may, upon application by any person affected thereby rescind or vary any judgment granted by it in the absence of the person against whom that judgment was granted; This does not mean that you knew about the matter but just decided not to pitch up – ask Jacob Zuma! The court may rescind or vary any judgment granted by it which was void ab origine or was obtained by fraud or by mistake common to the parties. There is so much skullduggery going on in the justice system that this may well apply to you.
The Courts of Law Amendment Act 7 of 2017 with effect from 1 August 2018 notes that Section 36 of the Magistrates’ Courts Act, 1944, is hereby amended— (a) by the substitution for subsection (2) of the following subsection: ‘‘(2) If a plaintiff in whose favour a default judgment has been granted has [agreed] consented in writing that the judgment be rescinded or varied, a court [must] may rescind or vary such judgment on application by any person affected by it.’’; and (b) by the addition of the following subsections: ‘‘(3) (a) Where a judgment debt, the interest thereon at the rate granted in the judgment and the costs have been paid in full, whether the consent of the judgment creditor for the rescission of the judgment has been obtained or not, a court may, on application by the judgment debtor.
So today you do not need the consent of the judgment creditor which used to be the case. It is interesting to note that it says the amounts must be “paid in full”. Ryts is of the opinion that if you made an offer of settlement at say 70% of the total amount due and the creditor accepted that offer then the courts would still grant the rescission because you have an amicable agreement between the two parties.
The question now arises as to do you in fact need the rescission in the first place. The reason most people would want a rescission is to clear their credit record, however the National Credit Act was also amended. A new section 71A was inserted into the National Credit Act which provides as follows: (1) The credit provider must submit to all registered credit bureaux within seven days after settlement by a consumer of any obligation under any credit agreement, information regarding such settlement where an obligation under such credit agreement was the subject of ……. (d) a judgement debt. So if you have paid off your debt, either in full or by agreement then that judgment record gets removed anyway. So at the end of the day what are the implications of rescinding your judgment for debt. If you emply an attorney to attend to the rescission it costs you financially, if you do it yourself it costs you time and the benefit? Well, other than emotional satisfaction (which can be very important) nothing really.
