Question posted in the General Law category relating to Gauteng
have a warrant of execution on my levy account which is in arrears. in 2018 i received summons and paid money towards my debt until i lost my job. i started paying what i could afford and sent my wife to the creditor but they refused to communicate with her. i got a new job last year around july/ august and started paying again what we could afford. when covid became worse i started paying less amount as money wasnt coming through as planned. i then discovered that the creditor took judgement without giving me a chance to defend and whilst making payments. i was surprised last week when i received a warrant of execution when there was no email nor call questioning my payments nor warning of intention to take judgement nor attach my furniture
i engaged the estate manage and legal team who demanded 90 000 rands down payment out of 116 000 owed which is far above amount summons were taken for including amount paid which i cannot afford nor raise within such a short time and they refused a smaller deposit which my friends are willing to assist with.
i want the court to allow me to defend judgement and pay what i could afford
please advice and assist
please advice and refer
Answer to the Question
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
Okay, so if you received a summons in 2018, you would have had 10 days to file a notice of intention to defend. If you didn't, then the plaintiff (which would have been the HOA or Body Corporate) would have been entitled to take a default judgment against you. This is notwithstanding the fact that you made payments on your account.
Once they have a default judgment, the court will then grant a warrant of execution which then allows the sheriff to come and attach your assets to sell them in execution.
You now want the court to un-do the process to allow you to defend the original claim. This is VERY hard to get right, because not only do YOU need to apply to court to "rescind" the default judgment, you need to convince the court that you actually have a defence, AND you need to convince the court as to the reasons why you didn't defend the summons in the first place. You are also coming 3 years later ... most rescission applications happen within a few weeks ... not a few years!
You are most certainly on the back foot here ... and your prospects of successfully rescinding the default judgment are (in my opinion) poor at best.
The fact that you were making payments does not mean that they can't take a default judgment against you. Unfortunately.
Your only options here are -
1) Find an amount that you can afford to pay each month which the BC is happy to accept; or
2) Wait for the sheriff to attach your car or your stuff and sell it; or
3) Sell your flat / house and move somewhere else.
You don't really have any other choices. It is a pity that you couldn't pay your levies for an extended period of time which meant that you were in arrears and that they took a DJ against you, but it happened. You now need to deal with it.
I don't know what defence in law that you have against their claim!?
What you could do is to ask for a full statement and a reconciliation of the amounts that you paid and how this was allocated against your levies and the DJ.
What you can also do is to ensure that the attorneys TAX their bill of cost at court and that the BC only adds that taxed amount onto your levies statement, and NOT the full lawyer's fees. You'll see that the court might only allow lawyers fees of maybe R1500 for a DJ, and that is the amount which can be added onto your levies statement, but most BC add the full fees of maybe R20,000 - which is illegal.
So, you need to ask the BC what legal fees were added, and you need to tell them to remove those and only add in the taxed bill of cost, because that is all that you are going to pay, and all that you are liable for in law!
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