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In order to remove his or her name from the so-called blacklist, the judgement in question, must be rescinded by an order of court.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For a judgement to be rescinded in the High Court, the following needs to be established: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

If You Think These 5 Things, You’ll Never Get Rich By The Time You’re 30

Five common mistakes entrepreneurs make when starting a business and how to correct them.

Published

on

rich-thinking-positively
Prev1 of 6

Last week, I had lunch with a millennial who wanted some advice about a business he’s starting. After the usual small talk, we got down to discussing his business plan. Within a short time, it was clear that his business idea was great, his plan for executing was fairly solid and he had gathered together a strong team to help him make it happen.

So far, so good. But, to be frank, this guy has no chance of being successful with his current mentality. What it takes to be rich (or successful in any measure) has a lot more to do with your mindset than your ideas and plans.

From the time we started in business at the ripe ages of six and seven, our Grandpa Joe taught my brother Matthew and me many lessons about the details of running a profitable business. Over the years, we learned about how to create a business plan; how to market our products and services; and how to take care of customers, vendors and employees. All this knowledge has been invaluable to us in creating and running successful businesses. But, what our grandfather taught us about attitude and mindset trumps all other lessons.

Without calling out the specific individual I spoke with recently, below are five “hypothetical” attitudes that will get you nowhere in your journey to success – and the attitudes that should replace them.

Prev1 of 6

Continue Reading

Personal Finance

5 Habits That Lead To Millionaire Business Success

You need the right habits if you’re going to succeed.

Timothy Sykes

Published

on

millionaire-business-success

What do all millionaire businesspeople have in common? Well, a lot of things.

I found from a recent study that 80 percent of all millionaires still go to work every single day. They’re working people just like me. But, they have to keep themselves in work or it all grinds to a halt. So what are the habits you need to make your business a success?

1. Patience

Nothing is ever going to come easy. You can look at the likes of Steve Jobs and Bill Gates, as well as the other usual suspects, to realize that success didn’t come with their first venture. Many of them failed time and time again. It took patience for them to become successful.

I read an article recently about 36-year-old teacher Andrew Hallam who became a self-made millionaire on a teaching salary. But, in his spare time he invested smart and lived frugally.

It proves you don’t have to inherit lots of money or become an instant success to make a millionaire business.

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

2. Dedication

You have to be dedicated to your craft if you’re going to become successful. Going back to Bill Gates again, he started his business in the back of his garage. Now that’s dedication.

It’s what I tell all my students. If they’re not dedicated to this, then they should leave. You need to be able to push through the barren periods if you’re going to reach the oasis of success.

3. Ambition and big dreams

Have you ever heard the quote, “Shoot for the moon. Even if you miss you’ll land among the stars”?

I take that to heart because even if you aim to become a billionaire and miss you still might be a millionaire many times over. Take the Wright Brothers as an example. Not content with creating a successful glider in 1902 they went on to create the world’s first airplane in 1903, making four brief flights in Kitty Hawk. It demonstrates the importance of dreaming big because you never know what you might achieve.

Related: 12 Millionaire Habits To Start Making Serious Money Soon And Build Wealth In A Hurry

4. Learn from mistakes

Every good businessperson will mess something up. It’s inevitable. What’s important is how you learn from your mistakes over time. Do you adapt after making your mistakes?

Millionaire businesspeople always set some time aside to reflect. Then they create a plan of action for ensuring that it doesn’t happen again. Most failed businesspeople put it down to “bad luck.”

5. Focus on niches

This important! Try to take over a whole industry at once and you’ll inevitably get swallowed up by the competition. Start small and control your own niche before moving into another niche. When you master your small area, you can push on and expand.

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

You’ll be amazed at how much easier it is to expand after you master your own niche/audience first.

Do you have what it takes? That’s the question I always ask novice businesspeople. You need a plan and you need the right habits if you’re going to succeed.

This article was originally posted here on Entrepreneur.com.

Continue Reading

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

Trending

FREE E-BOOK: How to Build an Entrepreneurial Mindset

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