It happens quite often that clients attend to an attorney’s office and exclaim that they recently became aware of a Judgment having been granted against them. The implications of a judgment being granted against a person could be monstrous seeing as the judgment is also registered at all of the major credit bureaus, which negatively impacts a person’s credit record and results in registered credit providers refusing to provide loans, credit or insurance, and may even preclude a person from qualifying to lease a property or rent a vehicle in terms of an instalment sale agreement.
There are different processes to be followed by a Plaintiff to initiate proceedings and consequently obtain Judgment in the High or Lower Courts of South Africa. The specific process to be followed varies depending on the type of matter. As an example, the summary hereunder deals with the circumstances surrounding debt collection, where a Plaintiff issues Summons against a Defendant for payment of amounts allegedly due and owing to the Plaintiff in terms of a contract or agreement between the parties.
The process of obtaining Default Judgment
The term “Default Judgment” refers to a Judgment which is granted against a Defendant who was in default of defending the matter. The process, briefly, is as follows:
- Summons is issued against a Defendant and thereafter served on the Defendant by the Sheriff of the Court. The Sheriff’s manner of service is regulated by Rule 4 of the Uniform Rules of Court and Rule 9 of the Magistrates’ Courts Act.
- When serving a Summons on a Defendant who is a natural person, the Sheriff will firstly attempt to serve the Summons personally, however, if the Sheriff is unable to find the Defendant, the Sheriff may serve the Summons on any other individual not under the age of 16 years and resident at the place where the Defendant resides. If, after a diligent search of the Defendant’s residence, the Sheriff is unable to find anyone upon whom to serve the Summons, the Sheriff may serve the Summons by affixing a copy thereof on the principal door of the Defendant’s residence, or by placing a copy of the Summons in the Defendant’s mailbox.
- If the Defendant is a resident within the jurisdictional area of the Court, the Defendant will have 10 court days after service of the Summons within which to serve and file a Notice of Intention to Defend.
- If the Defendant does not serve and file such a Notice, the Plaintiff may, after expiry of the 10 day period, apply to Court for granting of Default Judgment, where after Default Judgment will likely be granted against the Defendant.
- The Plaintiff then has various further remedies at his / her disposal to enforce the Judgment granted against the Defendant.
Rescinding a Default Judgment
The last form of service stated above, loosely referred to as “service by affixing”, is one of the main reasons why clients are sometimes of the opinion that a Judgment was unfairly granted against them and should be rescinded. Occasionally when a Summons was served by means of affixing, the Defendant never receives the Summons and as such the Defendant is never aware that he is required to serve a Notice of Intention to Defend.
Rule 42 of the Uniform Rules of Court and Rule 49 of the Magistrates’ Courts Act makes provision for a Defendant to approach the relevant Court and apply to have a Default Judgment rescinded. However, an order for the rescission of a judgment is not merely for the taking and an Applicant (Defendant) must prove that good cause exists to rescind the Judgment, before the Court will grant a rescission order.
In the case of Grant v Plumbers (PTY) Ltd 1949 (2) SA 470 (O) on page 476 and 477, the Court clearly outlined the requirements that must be met to satisfy the principle of “good cause”:
- The Applicant must give a reasonable explanation as to the reasons for his default in defending the matter. The Applicant must also convince the Court that he was not in wilful default.
- It is very difficult to convince a Court that default was reasonable, and not wilful, if the Summons was served on the Defendant (Applicant) personally. However, if the Summons was served on someone else or served by means of affixing, a reasonable explanation would be to state that the Summons was never received and as such that the Applicant was never aware of the action instituted against him.
- The Applicant must show that he has a bona fide defence to the Plaintiff’s claim.
- The Applicant will have to show to the Court that he has a reasonable prospect of success if he is allowed the opportunity to defend the matter. In this regard, the Applicant need not provide evidence to prove that he will be successful in his defence of the matter and must only make out a prima facie (at face value) defence to the Plaintiff’s claim.
- The Applicant’s application must be bona fide (brought in good will) and not brought with the sole purpose of frustrating the Plaintiff’s claim or delaying the matter.
- This requirement goes hand in hand with the second requirement, as the Court will not rescind a judgment if the Court is not satisfied that the Applicant has a good chance of being successful with his defence if he is given the opportunity to present evidence at trial.
It is further of import to note that an Application for Rescission of Judgment must be brought within 20 days after the Applicant became aware of the Judgment against him. If, however, the application is not brought within the said 20 day period, the Applicant may request the Court to condone his late filing of the Application. When an Applicant seeks condonation from the Court for his late filing of the Application, the Applicant must provide good reasons as to why more than 20 days lapsed before the bringing of the Application.
From the above it is clear that a Court will not merely rescind a judgment based only on the fact that the Defendant was not aware of the Summons. If the Defendant does not have a reasonable defence to the Plaintiff’s claim, it will be aimless for the Court to rescind the judgment, seeing as the Plaintiff will then in any event, and after a lengthy and costly trial, obtain judgment against the Defendant.
Rescission of Judgment where the Defendant does not have a reasonable defence to the Plaintiff’s claim.
As already stated hereinabove, there are many negative consequences that may arise due to a Judgment being granted against a person. In such an event, a Defendant who agrees that he does not have a reasonable defence to the Plaintiff’s claim is still able to have the Judgment against him rescinded and set aside.
The first course of action would be to approach the Plaintiff or the Plaintiff’s attorney and pay the full amount due and owing to the Plaintiff, in terms of the Judgment. A Plaintiff may even agree to enter into a settlement for payment of an amount less than the judgment debt or payment of the judgment debt in monthly instalments.
Once the Defendant has satisfied the judgment debt or complied with the settlement agreement reached with the Plaintiff, the Defendant may apply to Court to have the Judgment rescinded and set aside by agreement between the parties. It is important that the Defendant insists on obtaining written consent from the Plaintiff to have the Judgment rescinded, seeing as the Court Rules stipulate that the Plaintiff’s consent to have the Judgment rescinded must be in writing.
In view of the above it is clear that Judgment could be granted against you without your knowledge or consent. In such an event it is advisable to consult with your attorney immediately after you became aware of the Judgment, so as to ensure that your attorney has enough time to properly investigate the matter and decide on the best course of action to ensure that the Judgment granted against you, is rescinded.
Written by : Ilette Pilon (BA Law; LL. B)