When was the first summons issued?
Did they indeed issue a second one?
The first summons was issued in September 2006
The second summons was issued in October 2010 which I did not receive as it was served at my old domicilium address. I have received a letter from the law firm at my current domicilium address stating that a judgemnt was granted by the court on 18 October 2010.
The first summons should have been withdrawn. These are however procedural matters and you will have to apply for a rescission of judgement. In applying, you will have to convince the court that on the merits the application should be granted. In other words, that you do not owe the money.
My view is that you might have strong case to argue that the claim has prescribed and in my view you should launch such an application. This now adversely affect your credit record.
How will I know whether the first summon was withdrawn as I was advised by the attorney that the initial summons had become stale ?
On what basis has the debt prescribed as prior to the new instructions being given to the new attorney I wa servicing this debt.
The fact is that I do owe these funds BUT the legal procedures ie re-issue of another summons(initial summons stale & prescription) was not done according to the law.
I regard this as a violation of my rights. I have correspondence from the attorney in question stating that the new summons was served at my new domicilium address when in fact it was served at my old address.
In my opinion the attorney prejudiced me by serving the new summons to my old address obviously with intent not to allow me the time to respond.
I really look forward to your concise answer as I do not want to get myself involved with unnecessary legal costs but to get to correct procedures in resolving this issue
even if the debt prescribed.
I look forward to your expert advice.
Can you remember for what amount the summons was issued initially?
The first summons was for R66 645.33.
According to Rule 10 of the Magistrate Court Rules a summons lapse after one year. In terms of the High Court it is different and the summons never lapse and you will have to withdraw the summons.
In your case, the previous summons did indeed lapse according to the rules. The re-issue of this summons, and service thereof should have been done at your new address. The Magistrate Court Act does however make provision that the summons could have been served on the previous address if the reasonably could have believed that you still stay there. They could have then merely attached the summons to the property.
The problem now is that judgement has been granted. In order to apply for a rescission of this judgement it will mean that you will have to show two things:
1. You did not receive the summons and was not aware of the action taken against you, and in this case I think that on this point you will be successful;
2. That on the merits of the case, you do not owe the amount claimed and that you have merits to defend the matter. Here I foresee a problem as you categorically state that you do owe the money. If you admit this, the court will not rescind the judgement.
My view is that you should try and convince the plaintiff and his attorneys to allow you to make arrangements again to pay this amount off. If they refuse however, they will be able to proceed with a warrant of execution against movable and immovable property.
The first summons was the jurisdiction of the magistrates court and not the high court.
The attorney did state by way of email(I have proof) that the second summons was served at my new address. This never happened as there is someone always present to accept the summons on my behalf if I was not present. In addidtion I got the attorney to send me a copy of the second summons which clearly states my domicillium address as the old address. A contradiction obviously with intention NOT to allow me a chance to respond within the required time hence they applied for a judgement.
What are my rights in this regard ?
As mentioned above, if this is the case one can approach the law society as it can be construed as an attempt to obtain judgement on purpose without notifying you of the claim, or the fact that summons was going to be served.
I still don't think that purely based on this fact the judgement is going to be rescinded, but it will certainly question the ethics of the lawyer and he might be punished for this by the Law Society.
They can be contacted at www.lawsoc.co.za in order to lay a complaint.
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