Introduction
Default judgments can have serious consequences for defendants who miss court deadlines or fail to respond to claims. But what happens if you were unaware of the case or had a valid reason for not defending yourself? Fortunately, South African law provides a remedy called rescission of default judgment, allowing you to apply to set aside or “rescind” the judgment.
What is Rescission of Default Judgment?
Rescission is a legal process by which a court can cancel or set aside a default judgment previously granted against a defendant who failed to enter a defence or appear in court. The purpose is to give the defendant a chance to have the matter heard on its merits rather than losing by default.
When Can You Apply for Rescission?
You can apply for rescission if:
- You were unaware of the summons or court proceedings.
- You had a valid reason for not responding in time (e.g., illness, mistake, absence).
- You have a bona fide (genuine) defence to the plaintiff’s claim with a reasonable prospect of success and
- You act promptly once you are aware of the judgment.
Applicable Law
The procedure and grounds for rescission are mainly set out in:
- Rule 31(2)(b) of the Uniform Rules of Court (High Court cases)
- Rule 49 of the Magistrate’s Court Rules (Magistrate’s Court cases)
These rules require you to satisfy the court that your failure to defend was excusable and that you have a real defence to the claim.
Key Requirements for Rescission
Good Cause for Default
You must show why you did not defend the case on time. Examples include not receiving the summons, being seriously ill, or other reasonable explanations.
Bona Fide Defence
The court needs to be convinced that your defence is genuine and not frivolous or vexatious. You must outline the facts of your defence clearly.
Promptness
You must apply as soon as you become aware of the judgment to avoid prejudice to the plaintiff.
How to Apply
- File a notice of motion and affidavit explaining your reasons and attaching your defence;
- Serve these documents on the plaintiff;
- Attend court on the set date to argue your application.
What Happens After Rescission?
If the court grants rescission, the default judgment is set aside, and the matter is reopened. You will then be required to file a plea and proceed with the case as usual.
Conclusion
Default judgments can seem like the end of the road, but South African law provides mechanisms to protect defendants who have genuine reasons for missing court deadlines. Rescission of default judgment offers a second chance to defend your rights.
If you have received a default judgment or are unsure about your options, contact SchoemanLaw Inc. We specialise in civil litigation and can guide you through the rescission process with confidence.
For further assistance, consult an attorney at SchoemanLaw.
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