Applying for the rescission of a judgment can be complicated. Where a default judgment is entered into because a party has failed to defend a claim brought by another party, a successful rescission of judgment application can set aside or make void the judgment based on error or good cause shown.
How does a default judgment happen?
When instituting legal action by means of a summons there are two parties to the proceedings, namely the Plaintiff who institutes the proceedings, and the Defendant against whom recourse is sought. During the normal course of proceedings, both parties eventually get the opportunity to explain their case to the Judge, or Magistrate, who will then decide in whose favour to rule.
Should the Defendant fail to appear in the proceedings against him, the Plaintiff is entitled to ask for default judgment. Default judgment is therefore judgment given in the Defendant’s absence because he failed to defend the proceedings instituted against him.
The biggest reason for default judgment being granted, is that our law does not always require that a summons be served on the Defendant in person. For example, in certain instances the sheriff is allowed to simply place the summons in your mailbox, or tape it to your front door. This can sometimes lead to the Defendant not actually receiving the summons or knowing about the legal proceedings instituted against them.
What’s the bad news?
Where the Defendant fails to defend a summons, the Court assumes that he/she does not dispute the claim of the Plaintiff. The Judge, or Magistrate, will then grant an order in favour of the Plaintiff.
What’s the good news?
The good news is that the default judgment can, under certain circumstances, be varied or set aside. This can be done in one of two ways.
The Plaintiff, in whose favour default judgment is granted, may consent to the rescission or variation of the judgment in writing. An application must then be brought with the written consent attached thereto. This is a fairly simple procedure.
However, should the Plaintiff refuse to consent to variation or rescission of the judgment, the Defendant may bring an application setting out the grounds on which he/she seeks to have the judgment varied or rescinded. The court will then vary or rescind the judgment if they are satisfied that there exists a good reason to do so. Take note however, that there are time limits within which you must bring an application for a rescission of judgment, thus it is important to act promptly.
If default judgment has been granted against you and you wish to have this judgment varied or rescinded, please contact any of our experienced attorneys. Our Litigation and Dispute Resolution team has a broad base of expertise in all aspects of litigation conducted in South African courts, and our Commercial Recoveries attorneys can assist with all your claims and recovery needs.
For assistance with Commercial Recoveries
Henno Bothma henno@abgross.co.za
Wesley Scheepers wesley@abgross.co.za
For Litigation and Dispute Resolution expertise
Basilio de Sousa basil@abgross.co.za
Jeremy Simon jeremy@abgross.co.za
Henno Bothma henno@abgross.co.za
Wesley Scheepers wesley@abgross.co.za
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Disclaimer
The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.