Understanding the Recission of Judgments in South Africa
Are you unhappy with a default court ruling in South Africa? If so, you may be able to challenge it through the recission of judgements. This legal process allows you to apply to have a court order set aside or reconsidered under certain circumstances. In this article, we'll take a closer look at the recission of judgements in South Africa, including its legal requirements, procedures, and implications.
What is a Default Judgment?
A default judgment is a court order that is made against a party who fails to take any action in response to a legal claim or action. This means that the party who has brought the claim or action can obtain a judgment in their favour without a hearing or trial, as the other party has not responded or defended themselves
The most common reason why defendants do not enter the required notice of intention to defend, is due to the simple fact that they never received the summons initiating the civil action against them. It is important to remember that personal service of a summons by the sheriff is only required where the matter affects a person’s personal status (e.g. divorces or sequestration).
More often than not, default judgments come as a nasty surprise as typically, you will only find out about them when you are applying for credit. A default judgment can have dire consequences on your credit rating.
Legal Requirements for Default Judgments
To obtain a default judgment in South Africa, certain legal requirements must be met. These include:
Proper service of legal documents: The claimant must have properly served legal documents on the defendant, notifying them of the legal claim or action.
Time limit for responding: The defendant must have been given a reasonable amount of time to respond to the legal claim or action.
Failure to respond: If the defendant fails to respond or defend themselves within the time limit, the claimant may apply for a default judgment.
Legal Process for Default Judgments
The legal process for obtaining a default judgment in South Africa is as follows:
Application for default judgment: The claimant must make an application to the court for a default judgment.
Affidavit: The claimant must submit an affidavit setting out the facts of the case and the defendant's failure to respond.
Hearing: The court will hold a hearing to consider the claimant's application for a default judgment.
Judgment: If the court is satisfied that the legal requirements have been met, it may grant a default judgment in favour of the claimant.
What is a Rescission of a Judgment?
When a judgment or court order is cancelled or set aside this is called a rescission of such judgment or order i.e. the judgment/order has been rescinded.
How Do You Rescind a Default Judgment?
A rescission application has to be served and filed at the relevant court within 20 days after becoming aware of the fact that a judgment has been made against you.
In the absence of getting the plaintiff (in whose favour the default judgment was granted) to agree to the rescission of the judgment, part of the rescission application will require you to set out in an affidavit why you failed to defend the matter and what your bona fide defence is to the original claim. You will have to set out legitimate reasons why you originally failed to defend the matter.
What are the Legal Requirements for Recission of Judgements?
To apply for the recission of a judgement, certain legal requirements must be met. These include:
Showing good cause: The applicant must show good cause for the recission of the judgement. This means that they must provide a valid reason for why the judgement should be set aside or reconsidered.
Application within a reasonable time: The application for recission must be made within a reasonable time. The court will consider the circumstances of the case to determine what constitutes a reasonable time.
Payment of costs: The applicant may have to pay the costs associated with the application for recission.
Showing a bona fide defence: The applicant must show that they have a bona fide defence to the claim or action.
No unreasonable delay: The applicant must not have unreasonably delayed the application for recission.
Legal Process for Recission of Judgments
The legal process for recission of judgements in South Africa is as follows:
Application for recission: The applicant must make an application to the court for the recission of the judgement. This must be done within a reasonable time.
Notice of intention to oppose: The respondent may file a notice of intention to oppose the application for recission.
Opposing papers: If the respondent opposes the application, they must file opposing papers setting out the reasons for their opposition.
Hearing: The court will hear the application and any opposition. The applicant will have an opportunity to present their case and the respondent will have an opportunity to respond.
Judgment: The court will make a judgment on the application for recission.
Magistrates vs High Court Orders/Judgments
In the Magistrate Courts, a judgment can be rescinded either once you have settled the debt and the creditor has consented to the judgment being rescinded or if you have valid grounds for setting aside such judgment.
In the High Courts, a judgment can only be rescinded in certain exceptional circumstances.
What are the Implications of Recission of Judgments?
If the court grants the application for recission, the original judgement will be set aside or reconsidered. This means that the case will be reopened and the parties will have an opportunity to present their case again.
However, if the application for recission is unsuccessful, the original judgement will stand and the applicant will have to abide by its terms. In addition, the applicant may be ordered to pay costs associated with the application for recission.
Barter McKellar’s litigation attorneys have extensive experience with setting aside default judgments in both the Magistrate Courts and the High Courts. 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.