A judgment may be awarded even if you have defended your matter, however, this article aims to explore the possible consequences and actions you may take in respect of a “default judgment” which is essentially a judgment that has been awarded in absence of a defence.
In other words, once the legal process has been initiated against you, you will receive the documents that begin the process, which could either be a summons or notice of motion and founding affidavit.
Once these documents have been received, you will be able to indicate whether you will oppose the application or defend the action. If you do not provide the other party with notice that you will be defending or opposing, the other party will be able to obtain a default judgment.
Ignoring Legal Action Or Process
Ignoring an action or application against you has dire consequences; for example, judgments are generally reported and registered with credit bureaus without a person’s knowledge and, in turn, can affect a person’s credit score. Furthermore, it can negatively affect a person’s chance of getting a job in most sectors, especially in the finance job sector.
A judgment remains on your credit record for up to five years unless it is paid in full or rescinded by the court which granted it.
Furthermore, the courts can assist with the execution of the judgment by granting a Sheriff the right to attach your goods for auction, which in turn will be used to pay the party who sought the judgment.
A judgment can be rescinded or varied if you have reasonable grounds to show why you did not defend the action or application. However, simply ignoring it will not be accepted as a defence by the court.
Unaware Of An Action Against You
A judgment may be awarded by default if you are unaware that legal process has been initiated against you. This could point to an issue in service of the initiating documents. A litigant hoping to be successful with a default judgment would need to show that the documents have been properly served. However, sometimes, service may appear to be fulfilled on the face of it, allowing for a default judgment to be granted but the Defendant may be completely unaware of the litigation. Due to the Defendant being unaware, no notice would be given to the initiating party in respect of defence, and the grounds for a default judgment will be set.
The grounds for a judgment by default are deemed as an admission of the claim by the Defendant. For instance, it is deemed that the defending party admits and does not dispute the claim. In the case of Fatti’s Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd, J Boshoff stated: “The Defendant is in default and it is reasonable to suppose in the majority of cases that he is not disputing the claim nor the amount thereof.”[1]
According to Rule 49(1) of the Magistrate Court Rules, a person has 20 days after obtaining knowledge of the judgment to serve an application to rescind or vary a judgment. They would need to show good reason to do so and provide an affidavit setting out the reason for the party’s absence from defending the matter and their defence.[2]
The court follows a similar process in the High Court.
Therefore once you become aware of a default judgment, contact an attorney, obtain all the information on the matter and obtain advice on the prospect of rescinding the judgment versus complying with the judgment.
A recission application may also be made where a party has ignored the litigation; however, showing grounds for recission would be significantly more difficult.
Conclusion
In conclusion, if you have become aware of a judgment against you and need to have it rescinded or varied, it is advisable to immediately contact an attorney. As you only have twenty days to apply to have the judgement varied or rescinded. And lastly, simply ignoring a judgment will negatively impact your credit score.
Contact an attorney at SchoemanLaw Inc for your Legal needs
[1] Fatti’s Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (t) at 739B-C.
[2] Rule 49(3) Magistrate Rules.
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