RESCISSION OF DEFAULT JUDGEMENT

You borrowed money from a friend or family member and they have since obtained Default Judgement against you for non-payment of an amount owing to them, which led to you being blacklisted. What can you do now?

If you didn’t defend a summons issued against you for payment of money to a Plaintiff (Creditor), the Plaintiff will ask the court to grant a judgement against you (Defendant/Debtor), which remains valid for 30 years. In the event that you feel dissatisfied with the judgement or you as the Debtor has since repaid the outstanding debt and interest in full, you are permitted/allowed to apply for Rescission of Judgement, rescinding the judgement that was handed by court.

Rescission of Judgement in the High Courts:

Rule 31(2)(b) of the High Court Rules determines that an Applicant (Debtor) may within 20 days after he has knowledge of default judgement taken against him, apply to court upon notice to the Respondent (Creditor) to set aside default judgement and the court may upon “good cause” shown set aside the default judgement. The Applicant has to prove 3 elements to the Court to comply with the words “good cause”.

The first element is the Applicant must give a reasonable explanation for his default. The Applicant must show that his default was not wilful, and wilful default exist where; firstly the Applicant has knowledge that the action is being brought against him; secondly the Applicant deliberately refrains from entering an appearance to defend; and thirdly the Applicant has a certain mental attitude to the consequences of default.

The second element is the Applicant must show the existence of a bona fide defence. Once the Applicant satisfied the court that he was not in wilful default, he has to demonstrate that a substantial defence exists, in other words he has a prima facie case against the Respondent (Creditor).

The third element is the Applicant’s application must be brought bona fide. In other words it must be clear that he intends to use his defence and that the reason for the Application for Rescission of Judgement is to enable him to have his day in court.

In the case where Judgement was granted for non-payment of a debt and the debt has been paid in full by the Debtor, consent by the Creditor to the Rescission is not enough, and the Debtor has to comply with the requirements as discussed above.

Rescission of Default Judgement in Magistrate’s Courts:

Rule 49(1) of the Magistrates’ Court Rules determines that if a Defendant (Debtor) is seeking to rescind a default judgement he has 20 court days from date on which the default judgement came to his knowledge to serve and file the application for his rescission. Notice of the application must be given to all the parties to the proceedings. The Applicant is required to show “good cause” why the judgement should be rescinded or, alternatively, the court must be satisfied that there is good reason to do so.

The first requirement, namely “good cause” shown is the same requirement as discussed above at High Courts. Rule 49(1) makes provision for an alternative, namely courts may rescind the judgement if it is satisfied that there is “good reason” to do so. This alternative appears to set a lower standard than that of “good cause”, but it does not lower the requirements for the Applicant.

In the case where Judgement was granted for non-payment of a debt and the debt has been paid in full, the Debtor can apply to have the judgement rescinded if the Creditor consents to the rescission.

It is important to note that courts has a wide discretion in deciding whether or not the Applicant has shown “good cause”, but where the Applicant was in wilful default Application for Rescission of Default Judgement will normally fail.

Compiled By: Grantham Williams

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)