Most people only become aware that a default judgment has been granted against them when the sheriff arrives with a warrant of execution or when their credit applications are unexpectedly declined. A default judgment is usually issued when a defendant fails to enter an appearance to defend or does not attend trial, and in the Magistrates’ Court, this is regulated by Rule 12. The consequences are severe: adverse credit listings, attachment of assets, and, in some cases, execution against property. A default judgment remains valid for thirty years, which means taking corrective action is essential.
Rule 49 provides a mechanism for applying to have such a judgment rescinded. Any party to the proceedings, or anyone affected by the judgment, may bring an application within twenty days of becoming aware of it. The court has a discretion to rescind the judgment if good cause is shown, and once rescission is granted, the matter proceeds as if no judgment had ever been entered. The defendant is then required to file a plea within the time periods set out in the rules. The effect of the rescission is that the action proceeds as if the judgment were not given, and the defendant must file a plea (within a time stipulated by the court rules).
Immediate Challenges Faced by an Applicant
An applicant for rescission usually faces two immediate challenges. The first relates to the time limit: the applicant must explain how and when the judgment came to their attention, and why the application is being brought only at that stage. Because a party is deemed to have knowledge of the judgment ten days after it is granted, any application brought outside the twenty-day window must be accompanied by a proper explanation and, if necessary, an application for condonation.
The second challenge is explaining the default itself. The applicant must satisfy the court that the default was not wilful and that, had they been aware of the proceedings, they would have taken steps to defend them. This explanation must be set out fully in the founding affidavit.
Requirement of a Bona Fide Defence
The court will also look at whether the applicant has a bona fide defence with some prospects of success. At this stage, the court does not determine the merits in detail, but it must be clear that there is a genuine, triable issue between the parties. This requirement flows from the principle of audi alteram partem, which is central to the idea that every party is entitled to be heard before judgment is given.
Rescission Under the Common Law
Apart from Rule 49, the common law also permits rescission where a judgment was obtained fraudulently, as a result of a mistake in law, or due to a procedural irregularity. Such applications must be brought within a reasonable time and must similarly be supported by a full explanation.
Court Considerations and Next Steps After Rescission
Once the application has been filed together with all supporting documents, the court will consider the credibility of the applicant’s explanation, the reasons for any delay, the extent of the prejudice to the judgment creditor, and the strength of the defence raised. If rescission is granted, the applicant should ensure that their status is updated with the credit bureaus and must prepare to defend the matter properly on the merits. If the defendant again fails to defend, the plaintiff may apply for another default judgment.
In summary, clearing one’s name after a default judgment is achievable, but it requires prompt action, a candid explanation, and a genuine defence to the claim. A well-prepared application not only restores the applicant’s ability to defend the matter but also upholds the fundamental right to be heard, ensuring that the dispute is resolved on its merits rather than by default.
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