CHECK LIST: DEFAULT JUDGMENTS AND EMOLUMENT …

1 CHECK LIST: DEFAULT JUDGMENTS AND EMOLUMENT attachment ORDERS: underlying CAUSE OF ACTION: CREDIT AGREEMENT In an application in terms of Rule 12, (Magistrate s Court Rules), or S 57 or S 58 (Magistrate s Court Act) the following documents should be attached, and there should be compliance with the following: (This list is not necessarily exhaustive). RULE 12: 1. Application (Form RM5) two fold and signed by plaintiff/applicant. 2. Summons & Return of service. 3. Jurisdiction (a) Geographical (b) Monetary. 4. Rule 6(6): Summons: Written or oral contract. 5. Contract. * 6. Certificate of Registration with NCR.** 7. Computation of claim amount** 8. Summons: allegation of compliance with S129(1) NCA. 9. Copy of S129(1)NCA notice.

2 10. Was notice issued and delivered as before issuing of summons. 11. Proof of delivery: S129(1) notice: Slip for Registered Mail or signature if delivered by hand. 12. Track & Trace Report (If S129(1) was send by Registered Mail) 13. Proof of affordability to pay loan test. 14. Sec 126B NCA notice to debtor to inform him of prescription. (Notice or in summons.) 15. Rule 12 (6) (A) compliance affidavit. 16. Is the interest rate requested correct? 17. Is the date of interest correct? 18. Scale of costs in accordance with contract? 19. Prayer for costs in application corresponding or for less than prayer for costs in summons? 20. Prayer for costs on attorney and client scale in application according to contract? SEC 58: 1. Application (Form RM5) two fold and signed by applicant.

3 2. Jurisdiction. (a) Geographical (b) Monetary. 3. S129(1)NCA notice to be attached. 4. Proof of delivery: S129(1) notice (also see above under summons). 5. Track & Trace Report (If S129(1) was send by Registered Mail). 6. S 58(2): Demand (Letter or Summons). 7. S58(2) (MCA) & Rule 4(1)(b): Demand (letter or summons) to contain an allegation of compliance with S129(1) and 130 of NCA. 8. Sec 126B NCA notice to debtor to inform about possible prescription. 9. Sequence: (S129(1) notice to be issued first, after expiring of dies ito S130, then S58 (2) MCA demand, or summons, alleging compliance with S129 (1) NCA and only thereafter, consent to judgment. Demand and consent to judgment may be even dated.)

4 10. Original Consent to judgment. 11. Debtor s signature. 12. Compliance with Rule 4(3) and Rule 11 (1) (c). (2 signatures, addresses, telephone numbers). 2 13. Does it appear from the documents (see addresses) that the signatures of the 2 witnesses to the consent to judgment were indeed attached in the presence of the debtor? 14. Contract * 15. Certificate of Registration with NCR. ** 16. How was the claim amount computed?** 17. Proof of affordability to pay loan test. (Sec 81-NCA) 18. Sec 126B NCA notice to debtor to inform him of prescription. (Notice or in summons.) 19. Interest date correct? 20. Date of interest to accrue from correct? 21. Rule 12 (6) (A) compliance affidavit. 22. Consent to costs corresponding with prayer for costs in application?

5 SEC 57 1. Application (Form RM5) twofold and signed by applicant/plaintiff. 2. Jurisdiction. (a) Geographical (b) Monetary. 3. S129(1)NCA notice. 4. Proof of delivery: S129(1) notice. 5. Track & Trace Report (If S129(1) was send by Registered Mail) 6. Sec 126B NCA notice to debtor to inform about possible prescription. 7. Demand. 8. Consent by debtor. 9. Letter by plaintiff/applicant of acceptance of offer. 10. Proof of Registered Mail for Letter of acceptance of offer. 11. Contract. * 12. Certificate of Registration with NCR. ** 13. Rule 12 (6) (A) compliance affidavit. 14. Proof of computation of claim amount. ** 15. Interest date correct? 16. Date of interest to accrue from correct? 17. Consent to costs corresponding with prayer for costs in application?

6 *Rule 12 (6), Rule 4(4): CONTRACT: Is the original contract attached? - If copy of contract is attached: affidavit explaining why original is or should not be attached. - Is the copy legible? - If only a copy of the general terms of the contract is attached: affidavit stating why the original contract, or a copy of all the terms is not available. Sec 57 and 58: The affidavit should contain the date and specific terms (principle debt, interest rate, administration costs, etc.) of the contract. (Plaintiff to submit secondary evidence as to terms of contract). Summons: The specific terms of the contract to be alleged **(S40 NCA) CERTIFICATE of registration with National Credit Regulator. - The date/period indicated on the certificate/ the letter/ receipt/ proof of payment of fees: should be applicable/ should cover the date when the contract was entered into.

7 **COMPUTATION OF DEBT AMOUNT 3 -Proof pertaining to the computation of the amount due. (Certificate of balance of statement.) - Certificate of balance is it possible to ascertain that no extra amounts, such as costs, tracing fees, etc. was add to the COB? - Certificate of balance or Statement of payments, end saldo to correspond with claim amount. - Prescription: See date of contract and DEFAULT - Is it possible that a claim for a portion or the whole of the amount due is prescribed? -See that in duplum rule is not contravened. - see that amount requested is not more than amount consented to. S129 (1) NCA- NOTICE: - Does notice comply with provisions of S129 (1) NCA? - Is proof of delivery of notice attached?

8 (Signature for acknowledgement of receipt/ registered post slip/ affidavit- if mailed by ordinary post) - In the event of registered mail: Is track & trace report attached? EMOLUMENT attachment ORDERS CONSENTED TO IN WRITING BY DEBTOR The information submitted by the debtor at the stage when the affordability of the loan was considered, may assist the magistrate when considering the granting of an EMOLUMENT attachment order . - Salary advice Is the information still relevant or stale? (guide-line: not older than a year from date of application) - Is the information on expenditure as entered on the affordability test, reasonable? - Is the amount/instalment offered affordable? - Jurisdiction of employer?

9 C. REYNEKE MAGISTRATE: VANDERBIJLPARK (Updated: 2 October 2015)