Understanding default judgment and rescission applications

rescission
22 Nov 2023

Introduction

Do you have a judgment against you and wish to challenge this? Your best option is to contest it through the process of rescission of judgments. This legal avenue allows you to seek the setting aside or reconsideration of a court order under specific circumstances. In this article, we will delve deeper into the concept of rescission of judgments in South Africa, outlining its legal prerequisites, procedures, and ramifications.

Understanding default judgments

A default judgment is a legal decision made against a party who has failed to defend themselves in a lawsuit brought against them.

In a summons-based legal action, two primary parties are involved:

  1. The Plaintiff is the party initiating the legal proceedings.
  2. The Defendant is the party against whom relief is sought, responsible for defending against the action.

When the Defendant neglects to defend themselves, the court is justified in assuming that they do not wish to dispute the claims made against them by the Plaintiff. In such cases, the court will issue a judgment in favor of the Plaintiff, based on the claims made in the Plaintiff’s summons.

Default judgments may be sought or granted in the following situations:

  1. The Defendant failed to serve and file a Notice of Intention to Defend.
  2. The Defendant submitted a Notice of Intention to Defend but failed to serve and file a Plea.
  3. The Defendant submitted a defective Notice of Intention to Defend.

The procedure for obtaining a default judgment

The Plaintiff submits a written request for a default judgment if the Defendant failed to serve and file a Notice of Intention to Defend. This request must be in duplicate. The original summons, sheriff’s return of service, and documents supporting the cause of action must accompany the request. The request should accurately reference the case number. The Plaintiff can only claim the amount specified in the summons, along with associated costs and interest.

If the Defendant has delivered a Notice of Intention to Defend but fails to serve and file a Plea, the Plaintiff may issue a Notice of Bar, requiring the Defendant to submit a Plea within five days. Failure to do so may result in the Defendant being barred from filing a Plea, and a default judgment may be entered.

The Magistrate will then endorse the request for granting a default judgment.

Rescission of judgments

Rescission of a judgment or court order signifies its cancellation or setting aside. In essence, it equates to the judgment or order being revoked. To apply for the rescission of a judgment, certain legal stipulations must be satisfied. These encompass:

  1. Demonstrating good cause whereby the Applicant must substantiate a valid reason for the judgment being set aside or reconsideration.
  2. The request for rescission must be made within a reasonable time frame, with the court considering the case’s circumstances to determine what constitutes a reasonable period.
  3. The Applicant might be obligated to cover the expenses linked to the rescission application.
  4. The Applicant must demonstrate a legitimate defence against the original claim or action.
  5. The Applicant should not have unjustifiably delayed the application for rescission.

Legal process for rescission of judgments

The Applicant must make a formal request to the court for the judgment’s rescission within a reasonable time frame. The Respondent has the option to file a Notice of Intention to Oppose the rescission application. If the Respondent opposes the application, they must submit opposing documents outlining the grounds for their opposition. The court will convene a hearing to review the application and any opposition. During this process, the Applicant presents their case, and the Respondent has the opportunity to respond. The court will issue a judgment on the application for rescission.

If the court grants the application for rescission, the original judgment will be set aside or reconsidered. This reopens the case, allowing both parties to present their arguments once more.

However, if the application for rescission is unsuccessful, the original judgment remains valid, and the Applicant must adhere to its terms. Additionally, the Applicant may be required to cover the costs associated with the rescission application.

Conclusion

In conclusion, a default judgment is a legal outcome that arises when a party fails to defend themselves. In a summons-based legal proceeding, the Plaintiff initiates the action, while the Defendant is expected to defend against the claims made by the Plaintiff. However, individuals can address the judgment against them if they meet the requirements.

For any assistance, contact an attorney at SchoemanLaw.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Robyn Shepherd

Robyn Shepherd obtained her LLB degree from the University of the Western Cape in 2016. She joined SchoemanLaw Inc as a Professional Assistant in February 2022 and was admitted to... Read more about Robyn Shepherd

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