Rescission of judgments

By Roy Bregman
Bregman Mitchley Attorneys

When can you have a judgment set aside?

RESCISSIONS

If a defendant in a court action does not respond to a summons within the specified time limit, the plaintiff will generally be entitled to obtain judgment in its favour by default.

You would only be entitled to apply for the rescission of a Judgment that was granted against you if the other side consents thereto in writing or, that failing, if you can show that at the time that the judgment was entered, you were not in wilful default and that you had a valid and bona fide defence to the action instituted against you.

You get consent

If you get such consent it is a relatively simple matter to have the judgment set aside. In most courts you have to bring a substantive application to obtain the rescission. In that case, you will have to use an attorney who will cahrge you about R1500 plus VAT for his services. In other courts, all you have to do is get a rescission form from the clerk of the court, take it to the creditor to sign and then take it back to the court. They will then rescind the judgment on your behalf at no cost to you.

You can succesfully apply to court for a rescission of the judgment only if you can show that at the time that the Judgment was entered, you were not in wilful default and that you had a valid and bona fide defence to the action instituted against you.

Wilful Default

Before a person can be said to be in wilful default, he must have known that an action was being brought against him, but deliberately refrained from entering an Appearance to Defend, although he was free to do so, because he really could not care less about the consequences of not dealing with the matter.

Accordingly, if the summons did not come to your attention and the first you learnt about the Judgment was when the Sheriff arrived at your house to make an attachment, you could not be said to have been in wilful default. At present, the rules of our Courts do not require personal service, so that a summons is deemed to have been served, even if it is served on someone else on your behalf or is merely affixed to the front gate of your house. In these circumstances, it is possible and often likely that the summons will not be brought to your attention.

Another example would be where you dealt with the summons timeously by handing it to your attorney, but he inadvertently and not negligently misplaced the file in his office and it was through no fault of your own that Judgment was entered against you.

Bona fide defence

Once you have satisfied the Court that you were not in wilful default in allowing the Judgment to be entered against you, you must demonstrate that a substantial defence exists. It would be sufficient to show that you have a prima facie defence that is likely to succeed at trial.