What is a Default Judgment?

Default judgment is a judgment entered against a party who has failed to defend a claim that has been brought by another party in a court of law.

When can you get a Default Judgment?

There are four instances where default judgment may be granted, namely where the defendant (i.e. the person being sued):

• has not served and filed a notice of intention to defend;

• filed a notice of intention to defend, but this was not done timeously;

• filed a notice of intention to defend, but failed to file a plea; or

• filed a notice of intention to defend, but the notice was defective.

Legal Process for Default Judgments

The legal process for obtaining a default judgment in South Africa is as follows:

1. Application for default judgment: The claimant must make an application to the court for a default judgment.

2. Affidavit: The claimant must submit an affidavit setting out the facts of the case and the defendant's failure to respond.

3. Hearing: The court will hold a hearing to consider the claimant's application for a default judgment.

4. Judgment: If the court is satisfied that the legal requirements have been met, it may grant a default judgment in favour of the claimant.

Implications of Default Judgments

If a default judgment is granted against a party, it can have serious implications. These include:

1. Legal obligation to comply: The party against whom the default judgment has been made will be legally obligated to comply with its terms.

2. Difficulty in appealing: It can be difficult to appeal a default judgment as the party against whom it has been made has not presented a defence.

3. Cost implications: The party against whom the default judgment has been made may be ordered to pay the claimant's costs associated with the legal action.

Can you set aside a Default Judgment?

Yes, under certain circumstances. South African law allows you to approach a court on application to set aside (i.e. rescind) a default judgment that has been obtained against you.

When can you set aside a Default Judgment?

A default judgment may be set aside where:

• the person against whom the judgment was awarded (i.e. judgment debtor) has a valid defence that was not raised - you have to apply to have the judgment set aside within 20 (twenty) days after obtaining knowledge of the judgment;

• If the judgment debt has been settled within a reasonable time; or

• If the person in whose favour the judgment was awarded (i.e. judgment creditor) consents to the rescission.

Default judgments can have serious implications for parties involved in legal proceedings in South Africa. If you're facing legal action, it's important to understand the legal requirements, procedures and implications of default judgments. By following the steps outlined in this article, you can better protect your rights and interests in legal proceedings. Barter McKellar’s litigation attorneys are able to assist with obtaining default judgments and having them set aside.

If you need assistance with a litigation matter or dispute, contact our offices today to schedule a consultation with one of our specialist litigation attorneys.