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CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1527
Experience:  BCom; LLB; Masters in Law
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I am the only member of a cc..I was in the magistrates court

Customer Question

mike..I am the only member of a cc..I was in the magistrates court without legal representation..my request to represent the cc in court was dismissed with cost..VONNIS BY VERSTEK was granted even though all the documents etc were in the hands of the court..I tried to claim my constitutional rights etc..the magistrate screamed and cussed at me..what are my legal rights?
Submitted: 1 year ago.
Category: South Africa Law
Expert:  CaseLaw replied 1 year ago.

Hi there and thank you for your question,

I will try to assist you with your legal question but please feel free to ask as many follow up questions as you like until you are 100% satisfied.

First off, your constitutional rights are very different to your close corporation's constitutional rights, so you were not entirely right in trying to argue that.

BUT, what I can tell you is that you (as a member of a close corporation) are legally entitled to represent the close corporation in court - without you being an attorney.

Technically the Magistrate was INCORRECT in granting a default judgment against the close corporation.

My advice is that you apply for a rescission of the default judgment. You'll need to depose to an affidavit where you set out your reasons, but basically your argument would be that you were in attendance at court, you wanted to represent your close corporation, and the Magistrate refused. You will also need to set out in your affidavit that your close corporation has a defence to the claim, and you'll need to explain what that defence is! That's very important.

I wouldn't bother asking the Magistrate for reasons as to the default judgment. I think that it was granted simply because the Magistrate felt that the close corporation was not represented in court. Therefore the default judgment.

You can also report the Magistrate's actions to the department of justice. No Magistrate should carry on like that.

If my answer hasn't answered all of your questions, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - dont just rate my answer as "bad".

If my are HAPPY with my answer then please click one of the STAR ratings or the SMILEY FACES to rate my answer!

Good luck and best regards,

CaseLaw

Customer: replied 1 year ago.
mike.
I need case numbers where a member of a cc represented the cc in court.
can you assist.
I also would like an attorney to takeover the case.
the case is in Bethlehem.
Expert:  CaseLaw replied 1 year ago.

I unfortunately don't have any case numbers of where members represented a CC in Court.

What I can draw your attention to is to Rule 52 of the Magistrates Court Rules.

Click here (http://www.acts.co.za/magistrates-courts-lower-courts-act-1944/) and then go to Regulations (on the left) and then down to Rule 52 which deals with the representation of parties in court

Rule 52 (1) (a) A party may institute or defend and may carry to completion any legal proceedings either in person or by a practitioner.

Rule 52 (1) (b) A local authority, company or other incorporated body in doing so may act through an officer thereof nominated by it for that purpose.

Rule 52 (1) (c) A partnership or group of persons associated for a common purpose in doing so may act through a member thereof nominated by it for that purpose.

Rule 52 (1) (d) No person acting under paragraphs (a), (b) or (c) other than a practitioner shall be entitled to recover therefor any costs other than necessary disbursements.

Rule 52 (1) (b) applies to companies and close corporations, and essentially says that as long as the close corporation passes a resolution authorising you to act on behalf of the close corporation, that's good enough!

Customer: replied 1 year ago.
thanks a million.
I did quote Rule*****
I also handed in the resolution to appear on behalf of the cc.
I also protested verbally about my rights lawfully and constitutionally.
the magistrate really screamed and yelled at me..so bad that the applicants covered their heads in awe.
what route should I take now?
the sheriff attached some worthless items for the judgement.
how do I stay all the actions against the company?
Expert:  CaseLaw replied 1 year ago.

My advice is that you apply for a rescission of the default judgment. You'll need to depose to an affidavit where you set out your reasons, but basically your argument would be that you were in attendance at court, you wanted to represent your close corporation, and the Magistrate refused. You will also need to set out in your affidavit that your close corporation has a defence to the claim, and you'll need to explain what that defence is! That's very important.

If the Magistrate refuses that application, then you should appeal it to the High Court.

Expert:  CaseLaw replied 1 year ago.

Hi there again,

I hope that you understood the above advice and that it was useful? Please leave positive feedback for me.

If you have a further question please ask it?

Regards

CaseLaw

Customer: replied 1 year ago.
thank you.
how do I lodge a complaint against the magistrate for the handling of the whole case?
to which authority?
Expert:  CaseLaw replied 1 year ago.

Hi there, I will be happy to assist you further, but please can you rate my above answers first?