Connect with us

Personal Finance

Avoid Being Blacklisted

Some clarification: credit records, blacklisting and rescission of judgement applications (high and magistrate’s courts).

Nicolene Schoeman-Louw

Published

on

020

According to the IOL website, “46,5 percent of credit-active consumers – 8,61 million people – have apparently not been making their payments as they should.” This often results in judgements granted by a court and in many cases debtors neglect to defend the actions instituted against them (i.e. a summons).

This results in the court granting a default judgement in their absence and ultimately, that he or she is then blacklisted. Blacklisting adversely affects the debtor’s ability to have business dealings, but specifically, his or her ability to obtain credit (creditworthiness).

In order to remove his or her name from the so-called blacklist, the judgement in question, must be rescinded by an order of court. The court however, will only grant an order rescinding judgement, if the debtor has complied with prevailing laws and relevant court rules.

On the flip side of the coin, any creditor may list adverse information on a debtor’s credit record for a period of two years. This too, although not a judgment, may preclude a debtor from obtaining credit.

High Court

The general rule that applies in the High Court and Magistrate’s Courts is that an order of court will stand, until being set aside by a competent court. Thus, the court order must be obeyed, as there is a presumption that the judgment is correct.

In De Wet and Others v Western Bank Ltd, the court held:

‘A Court obviously has inherent power to control the procedure and proceedings in its Court. This is done to facilitate the work of the Courts and enable litigants to resolve their differences in as speedy and inexpensive a manner as possible. This, in my view, does not include the right to interfere with the principle of the finality of judgments other than in circumstances specifically provided for in the Rules or at common law.’

For a judgement to be rescinded in the High Court, the following needs to be established:

1. Good cause:

In order for an application for rescission of judgement to succeed, good cause must be proven. This is substantiated by the fact that in recent cases such as Swart v ABSA Bank Ltd the court dismissed this (unopposed) application for the rescission of judgment, as the debtor had failed to show good cause.

Good cause has never been defined and each case is measured individually against the facts contained in that specific case. The individual measurement of good cause further implies that the court can exercise its discretion in determining whether or not it is just and equitable to rescind any judgment previously made by it.

2. The rules of court:

In De Wet and others v Western Bank Ltd it was declared that the court has complete power to control the procedures and proceedings of the court. This is done to facilitate the work of the court and to enable litigants to resolve their differences as quickly as possible. Therefore, a rescission of judgement application must also comply with the rules of court.

Rule 42 sets out the grounds for the variation and rescission of an order. The grounds on which the court may rescind a matter due to of an error are:

  1. Where an order or judgment was wrongly sought or granted in the absence of any affected party;
  2. Where there is an ambiguity, a patent error or omission to the extent of such ambiguity,
  3. An order or judgment granted as a result of a mistake common to the parties.

Moreover, in the case where the rescission of judgement application is unopposed and brought by consent the court will regard the following:

  1. Reasonableness in the behaviour of the applicant,
  2. That the application is made in good faith,
  3. That the applicant has a bona fide substantial legal defence (based on the merits of the case).

3. Common law:

In Swadif (Pty) Ltd v Dyke No  the common law requirements set for rescissions of judgement applications were examined by court. Thus, in terms of common law, the following grounds can be used to set aside a judgement:

  1. Fraud,
  2. On rare occasions an error in law (justus error),
  3. New documents have been discovered,
  4. Judgement was granted be default in the absence of parties,
  5. On grounds of just cause (justus causa).

In addition to the above grounds, there must be a causal connection between the circumstances that gave rise to the rescission of judgement and the original judgement.

For the High Court even to consider a rescission of judgement, common law provisions, compliance with court rules and good cause must be established. This however, does not guarantee that a rescission will be granted, as the outcome is still at the discretion of the court.

Magistrate’s Court

The High Court is superior to the Magistrates Court and therefore has a bearing on the Magistrates Court and its decisions. High Court decisions also bind the Magistrates Courts in that province.

The Magistrates Court is a creature of statute and therefore can only perform what law allows it to in terms of the court rules. In terms of Rule 49 the following statutory requirements are set for rescissions of judgement in the magistrates courts:

  • The application must be done within 20 days of obtaining knowledge of such a judgement.
  • On application for rescission of judgement, an applicant must prove that there is good cause for the court to rescind the judgement. Nevertheless, the court may also rescind any judgement where it has good reason to do so. Thus, the court can use its discretion as to whether or not to rescind judgement.

As with the High Court, the magistrates court has never defined good cause.

For example, in the case of Silber v Ozen Wholesalers (Pty) Ltd good cause included the applicant’s defence, the circumstances surrounding and leading to judgement being taken and his conduct thereafter. In summary, the defendant (applicant) must have a bona fide legal defence, but is not limited thereto.

In addition, it is preferable that the applicant proves that there was no wilful non-compliance/default in terms of the court rules.

Therefore, the court rules must be complied with in the Magistrate’s Court in order to rescind judgement and as with the High Court, the judgement remains at the discretion of the court.

Conclusion

In the case of defaults, make sure you can afford the credit you have been given from the outset or make arrangements with creditors before falling into arrears so that a listing is avoided.

It is very important to note that under no circumstances will an attorney be able to predict or guarantee the outcome of an application for rescission of judgement, as it is solely the court’s discretion to grant or deny these.

Therefore, in order to avoid being blacklisted, it is advisable to approach an attorney for assistance when action is instituted against you. An attorney can also save you money by informing you whether the judgement cannot be rescinded due to non-compliance with the relevant legal provisions.

Nicolene Schoeman – Louw is an admitted attorney of the High Court of South Africa, as well as being a Conveyancer, Notary Public and Mediator. She is the Managing Director of Schoemanlaw Inc Attorneys, Conveyancers and Notaries Public (Schoemanlaw Inc Attorneys) in Cape Town. Visit www.schoemanlaw.co.za for more information or email enquiries@schoemanlaw.co.za

Advertisement
Comments

Personal Finance

The 3 Decisions That Will Change Your Financial Life

There’s nothing worse than a rich person who’s chronically angry or unhappy. There’s really no excuse for it, yet I see it every day. It results from an extremely unbalanced life, one with too much expectation and not enough appreciation for what’s there.

Tony Robbins

Published

on

tony-robbins

Without gratitude and appreciation for what you already have, you’ll never know true fulfilment. But how do you cultivate balance in life? What’s the point of achievement if your life has no balance?

For nearly four decades, I’ve had the privilege of coaching people from every walk of life, including some of the most powerful men and women on the planet. I’ve worked with presidents of the United States as well as owners of small businesses.

Across the board, I’ve found that virtually every moment people make three key decisions that dictate the quality of their lives. If you make these decisions unconsciously, you’ll end up like the majority of people who tend to be out of shape physically, exhausted emotionally and often financially stressed. But if you make these decisions consciously, you can literally change the course of your life today.

Decision 1: Carefully choose what to focus on

At every moment, millions of things compete for your attention. You can focus on things that are happening right here and now or on what you want to create in the future. Or you can focus on the past.

Where focus goes, energy flows. What you focus on and your pattern for doing so shapes your entire life.

Related: 10 YouTube Channels Every Entrepreneur Should Follow

Which area do you tend to focus on more: What you have or what’s missing from your life?

I’m sure you think about both sides of this coin. But if you examine your habitual thoughts, what do you tend to spend most of your time dwelling on?

Rather than focusing on what you don’t have and begrudging those who are better off than you financially, perhaps you should acknowledge that you have much to be grateful for and some of it has nothing to do with money. You can be grateful for your health, family, friends, opportunities and mind.

Developing a habit of appreciating what you have can create a new level of emotional wellbeing and wealth. But the real question is, do you take time to feel deeply grateful for your mind, body, heart and soul? That’s where the joy, happiness and fulfilment can be found.

Consider a second pattern of focus that affects the quality of your life: Do you tend to focus more on what you can control or what you can’t?

If you focus on what you can’t control, you’ll have more stress in life. You can influence many aspects of your life but you usually can’t control them.

When you adopt this pattern of focus, your brain has to make another decision: 

Decision 2: Figure out, What does this all mean?

Ultimately, how you feel about your life has nothing to do with the events in it or with your financial condition or what has (or hasn’t) happened to you. The quality of your life is controlled by the meaning you give these things.

Most of the time you may be unaware of the effect of your unconscious mind in assigning meaning to life’s events.

When something happens that disrupts your life (a car accident, a health issue, a job loss), do you tend to think that this is the end or the beginning?

If someone confronts you, is that person insulting you, coaching you or truly caring for you?

Does a devastating problem mean that God is punishing you or challenging you? Or is it possible that this problem is a gift from God?

Your life takes on whatever meaning you give it. With each meaning comes a unique feeling or emotion and the quality of your life involves where you live emotionally.

I always ask during my seminars, “How many of you know someone who is on antidepressants and still depressed?” Typically 85% to 90% of those assembled raise their hands.

How is this possible? The drugs should make people feel better. It’s true that antidepressants do come with labels warning that suicidal thoughts are a possible side-effect.

But no matter how much a person drugs himself, if he constantly focuses on what he can’t control in life and what’s missing, he won’t find it hard to despair. If he adds to that a meaning like ‘life is not worth living,’ that’s an emotional cocktail that no antidepressant can consistently overcome.

Yet if that same person can arrive at a new meaning, a reason to live or a belief that all this was meant to be, then he will be stronger than anything that ever happened to him.

When people shift their habitual focus and meanings, there’s no limit to what life can become. A change of focus and a shift in meaning can literally alter someone’s biochemistry in minutes.

So take control and always remember: Meaning equals emotion and emotion equals life. Choose consciously and wisely. Find an empowering meaning in any event, and wealth in its deepest sense will be yours today.

Once you create a meaning in your mind, it creates an emotion, and that emotion leads to a state for making your third decision:

Related: 13 Habits Of Self-Made Millionaires You Could Adopt Today

Decision 3: What will you do?

The actions you take are powerfully shaped by the emotional state you’re in. If you’re angry, you’re going to behave quite differently than if you’re feeling playful or outrageous.

If you want to shape your actions, the fastest way is to change what you focus on and shift the meaning to be something more empowering.

Two people who are angry will behave differently. Some pull back. Others push through.

Some individuals express anger quietly. Others do so loudly or violently. Yet others suppress it only to look for a passive-aggressive opportunity to regain the upper hand or even exact revenge.

Where do these patterns come from? People tend to model their behaviour on those they respect, enjoy and love.

The people who frustrated or angered you? You often reject their approaches.

Yet far too often you may find yourself falling back into patterns you witnessed over and over again in your youth and were displeased by. It’s very useful for you to become aware of your patterns when you are frustrated, angry or sad, or feel lonely. You can’t change your patterns if you’re not aware of them.

Now that you’re aware of the power of these three decisions, start looking for role models who are experiencing what you want out of life. I promise you that those who have passionate relationships have a totally different focus and arrive at totally different meanings for the challenges in relationships than people who are constantly bickering or fighting.

It’s not rocket science. If you become aware of the differences in how people approach these three decisions, you’ll have a pathway to help you create a permanent positive change in any area of life.

Continue Reading

Personal Finance

7 Steps To Achieve Financial Freedom

Achieving financial freedom doesn’t necessarily mean becoming filthy rich – not that that hurts.

Brian Tracy

Published

on

brian-tracy

In this video, Entrepreneur Network partner Brian Tracy explains the seven steps you need to take to achieve financial freedom. Now, financial freedom doesn’t mean becoming filthy rich – lottery winners go bankrupt all the time. Instead, financial freedom is about becoming disciplined and using your money in a way that ensures you can live the sort of life you want both now and in the future.

Related: 5 Qualities Of Successful Entrepreneurs

That’s why the first step isn’t about getting a lot of money. Instead, it’s about teaching yourself to think positively about money. That way, you’ll be in the right mindset to move forward.

Click play to learn more.

This article was originally posted here on Entrepreneur.com.

Continue Reading

Personal Finance

4 Ways To Become A Millionaire Even When You Start With Little

It costs nothing to take advantage of the limitless opportunities online.

Timothy Sykes

Published

on

102-4-ways-to-become-a-millionaire-even-when-you-start-with-little

The hardest part of becoming successful is getting started to begin with. But despite the challenges ahead of you, there’s a way to become a millionaire when starting with little. I’m going to show you four reasons why you can become a millionaire with just a small investment.

1First focus on learning, not big gain

Education is your greatest weapon. Focus on learning in the beginning. Don’t make the mistake of focusing on making huge gains in the beginning. Learn everything you can because this is how you build the foundations for long-term gains.

They say that if a millionaire goes bankrupt they’ll nearly always be able to get it back. And that’s because they might have lost their money, but they have the knowledge of how to get back to where they need to be.

Related: 21 Choices Millionaires Make That You Aren’t Making But Should Be

2You can learn loads about any topic online

online-learning

I’m grateful for the internet. It’s the single biggest library in the world. You’re reading this article right now and you’re acquiring knowledge you wouldn’t have been able to acquire 40 years ago. Use the internet to its fullest extent, whether that’s through reading books, browsing articles or watching video tutorials.

Set some time aside every day to learn something online. It could be a video series or a favorite blog. When you get into the habit of learning regularly you’ll find that you advance much faster.

3Focus on the niche you love

These days you can learn about anything and target the niche you’re passionate about. This is what I was able to do with penny stocks. I found a gap in the market and provided knowledge to people who wouldn’t have otherwise being able to access this sort of information.

You can do that with absolutely any niche. When you find a niche you’re passionate about and you use the reach of the Internet you start to make huge gains.

4Prove your expertise by creating free content

Your reputation as an authority is the new business card. There’s a reason I created a penny stock guide and made it free for all. You may have already seen ads for it on social media. The way to succeed with little is to create a reputation through your content.

It’s the gateway to success because through free content you start to build relationships with others who value your work. And from there everyone gets richer.

Related: How To Become A Millionaire, Explained In 1 Minute

You can do lots with a little

The days when you needed a huge investment to become successful are long gone. These days you can do so much with just a little. Find what you love, advance your knowledge in that area, and create a product that fulfills a need. Finally, work on building up relationships through portraying yourself as an authority on your subject.

Combine everything together and you can accomplish anything.

This article was originally posted here on Entrepreneur.com.

Continue Reading

Trending

FREE E-BOOK: How to Build an Entrepreneurial Mindset

Sign up now for Entrepreneur's Daily Newsletters to Download​​