THE LEGAL PROCESS

What is legal process?

It is any process which involves our courts and which is executed in accordance with the Rules and Procedures prescribed by either the Magistrates Court Act or the Superior Courts Act.

How is legal process started?

It can be initiated by either the issue of a summons or the set down of an Application.

What must I do if a summons is served on me?

Contact the creditor’s (Plaintiff) attorneys as soon as possible to see what can be done to avoid judgment from being granted by the court. If you have no defence to the claim but are simply not in a financial position to pay, the attorney may be instructed by your creditor to suspend further legal pending your undertaking to pay off the amount claimed in reasonable monthly instalments that you can afford. This agreement is generally considered an indulgence on the part of your creditor and will not prejudice your creditor’s rights to proceed with the legal process to judgment in the event of your failing to pay the monthly instalments on due date. The attorney may get you to acknowledge your liability by signing a Consent to judgment which will only be used in the event of your failing to pay.

If you disagree or dispute your liability or the amount of the claim, you should notify the court and the Plaintiff’s attorneys that you wish to defend the matter – best you instruct an attorney to help you with this!

What are the consequences for me of legal action?

If you choose not to defend, your creditor (Plaintiff) will ask the court to grant judgment against you for the amount of the claim, the interest on the claim amount plus legal costs as per the relevant court tariff.

If you choose to defend, the matter may end up in a trial which will be extremely expensive for both you and your creditor (Plaintiff)

If you lose the case, you will have to pay both your attorney’s costs as well as the judgment amount which includes the claim, interest and the legal costs of your creditor’s attorneys as per the relevant Court tariff.

What are the consequences for me of a judgment?

• The creditor’s right to claim will be preserved for a period of 30 years (extends the prescription period by 30 years).

• Your creditor may execute the judgment against you at any time during the 30 year period after the date of the judgment by:

• Obtaining a garnishee order against your employer.

• Having the sheriff attach and sell your property.

• Obtaining an order against you to pay the debt in monthly instalments due regard being had to your monthly income and living expenses.

• Sequestrating your estate for the benefit of all your creditors.

• You will be listed with the credit bureaus as a judgment debtor and be disqualified from being granted credit in the future.

How much are the legal Costs?

These costs are prescribed by the tariff of the relevant court and will vary depending on the value of the claim and whether the matter is defended or not.

You will be liable for the attorney’s costs (including the costs of a correspondent attorney), the costs of the sheriff and the costs of an advocate if instructed. Depending on the amount of your debt, these costs can vary between R400 and R1 200 if the matter is not defended. If you elect to defend the matter, your liability for legal costs could exceed R50 000.