In South African civil litigation, a judgment is a formal decision by a court (either the Magistrates’ Court or the High Court) resolving a dispute between parties. If a judgment is granted against you, it signifies that the court has legally validated the plaintiff’s claim, usually resulting in an order for you to pay a sum of money, perform a specific act, or vacate a property.
The immediate consequences of a Judgment
Once a judgment is granted, several enforcement mechanisms become available to the judgment creditor (the person who won the case):
1. Writ of Execution (Attachment of Property): The creditor can issue a Warrant or Writ of Execution. This authorizes the Sheriff of the Court to visit your home or business premises to attach (seize) your movable property. If the sale of movable property does not satisfy the debt, the creditor may apply to court to execute against your immovable property (your home).
2. Section 65 Proceedings (Magistrates’ Court): You may be called to a financial inquiry to explain your financial position. The court can then order you to pay the debt in monthly installments (an Emoluments Attachment Order, commonly known as a “garnishee order,” may be placed on your salary).
3. Credit Bureau Listing: Judgments are public records. Credit bureaus like TransUnion or Experian will list the judgment against your name, which severely impacts your credit score and your ability to obtain loans, credit cards, or even cellular contracts for up to five years (or until the judgment is rescinded/satisfied).
Two ways to rescind a judgment
“Rescission” is the legal process of “undoing” or setting aside a judgment. Under South African law, there are two primary procedural paths to achieve this:
1. Rescission of a Default Judgment (Rule 31(2)(b) of the High Court / Rule 49 of the Magistrates’ Court) This applies when a judgment was granted in your absence (a “Default Judgment”). This usually happens because you failed to file a Notice of Intention to Defend or a Plea within the prescribed timeframes. To succeed here, you must prove “good cause” for your default.
2. Rescission of a Judgment Erroneously Sought or Granted (Rule 42 of the High Court / Section 36 of the Magistrates’ Court Act) This path is used when there was a procedural error in the granting of the judgment, regardless of whether you were in default. Examples include:
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The summons was never served on your correct address.
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The judgment was granted for an incorrect amount.
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The creditor was not legally entitled to the judgment at the time it was sought.
What Must Be Done Before a Rescission Can Be Brought Successfully?
A rescission application is not a foregone conclusion; the courts are generally reluctant to set aside their own orders unless specific requirements are met. Before launching an application, a defendant must ensure the following:
1. Act Within the Prescribed Timeframes In most instances, a rescission application must be brought within 20 business days after you became aware of the judgment. If you wait too long, you will first have to apply for “condonation”—a legal request for the court to forgive your lateness—which adds a significant hurdle to your case;
2. Provide a Reasonable Explanation for the Default For a default judgment rescission, you must explain why you did not defend the matter originally. You must show that your default was not “willful.” For example, if the summons was served at an old address and you never received it, or if you were hospitalized, the court may find your explanation reasonable;
3. Demonstrate a Bona Fide (Good Faith) Defense This is the most critical requirement. You cannot rescind a judgment simply because you don’t want to pay. You must set out facts which, if proven at trial, would constitute a valid defense to the plaintiff’s claim. You must show that you have a prima facie (at first sight) prospect of winning the case if it were to go to trial;
4. Interaction with the Creditor While not always a legal requirement, it is often practical to contact the judgment creditor’s attorneys. If the debt has been paid in full, the creditor may provide “written consent” to the rescission. In the Magistrates’ Court, if the judgment debt and costs are paid and the creditor consents in writing, the rescission process is significantly simplified under Section 36(2).
by Jaques van den Ende