Rescission of Judgement

Let's talk about Rescission of Judgement.

Unfortunately, it sometimes happens that someone has sued you and you did not know about it.  So, for example, one day you apply for credit and you are told that you do not qualify; you have been “blacklisted” because you have a judgement against your name.

The above is just one example of how a judgment might be granted against you; of course it is also possible that the judgement was granted against with your knowledge.

Either way, when there is a judgment against you, you are the "Judgement Debtor" and the person that sued you is the "Judgement Creditor".

 

So what do you do now?

 

The general rule is that a Judgement will be valid and enforceable until being set aside by a Court. It is presumed that the judgment is correct

There is a mechanism in Law that allows a civil judgement to be removed from your name; it is called a “Rescission of Judgement”.  You need to make a formal application to the same Court that granted the Judgement against you, and ask that the judgment is removed from your name and that you are given the opportunity to defend the original allegations against you.  You will need a Lawyer to make the application for you.

Once the judgement has been “Rescinded” you can also have your name removed from so-called “blacklists” that Credit Bureau's compile and maintain.

There are strict rules about how and when you are allowed to have a judgement Rescinded.

Your relationship with the Judgement Creditor will also impact any application for Rescission of Judgment as the Judgement Creditor must be informed of the Application to Rescind the Judgment.  If the Judgement Creditor is willing to support your application things should be considerably easier, if not, and the Judgment Creditor is "hostile", the application can be quit difficult.  Either way, the application is generally technical and complicated.

It is usually more complicated getting a Rescission of Judgment in the High Court as opposed to the Magistrates Court; and the High Court and Magistrates Court have slightly different rules regarding Rescission of Judgement Applications.

 

HIGH COURT

Good cause

Although the term "Good cause" has not been specifically defined in South African Law the basic idea is it should be just and equitable to Rescind the Judgment.

Each matter is adjudicated on its particular circumstances ... i.e. on a case-by-case basis.  The Court can exercise its discretion in determining whether or not to rescind a judgment it has previously handed down.

Rules of Court

The Rules of Court state that a Judgement may be rescinded in the following circumstances:
  • Where an order or judgment was wrongly sought or granted in the absence of any affected party.
  • Where there is an ambiguity, a patent error or omission to the extent of such ambiguity.
  • An order or judgment granted as a result of a mistake common to the parties.

Further, if the Rescission of Judgement Application is unopposed and the Judgment Creditor has consented to the Rescission of Judgement, the following is required by the Court:

  • Reasonableness in the behaviour of the the Judgement Debtor.
  • The application must be in good faith.
  • the Judgment Debtor has a bona fide substantial legal defence.

Common Law

In terms of South African Common Law, further grounds for a Rescission of Judgment are as follows:
  • Fraud.
  • An error in law - i.e. the court made a mistake.
  • new documents have been discovered.
  • Judgement was granted be default in the absence of parties,
  • Just cause.

It is important to bear in mind that a Rescission of Judgement in the High Court is completely at the discretion of the Judge so even if the Application for Rescission of Judgement does comply with the above requirements, there is no guarantee it will succeed.

MAGISTRATES COURT

Time

The Rescission of Judgement application must be done within 20 days of becoming aware of the judgement.

Good Cause

Like the High Court, Good Cause is a requirement for a Rescission of Judgement, which has not been clearly defined.

Bona fide legal defence

The Judgement Debtor should have a bona fide (Good Faith) defence.

No Wilful Default

The Judgment Debtor should not have been in Wilful Default of the

In the Magistrates Court the Magistrate also have a discretion as to whether to grant the Rescission of Judgement.

VERY IMPORTANT: ONCE A JUDGMENT IS RESCINDED THE JUDGMENT DEBTOR (NOW CALLED "THE DEFENDANT") STILL NEEDS TO DEFEND THE MATTER; THEY WILL NEED TO ANSWER THE ALLEGATION FOUND IN THE ORIGINAL SUMMONS OR NOTICE OF MOTION.

(This Article is part of our Judgment Series)


DISCLAIMER: THERE ARE MORE CONSIDERATIONS THAN WE CAN COVER IN THIS ARTICLE SO ONLY USE THIS INFORMATION AS A GUIDE.   THIS INFORMATION DOES NOT CONSTITUTE LEGAL ADVICE.  IT IS ALWAYS BEST TO DISCUSS YOUR SITUATION WITH AN ATTORNEY; CONTACT US AT 0861 88 88 35helpdesk@gcm-legal.com AND THROUGH THE CONTACT FORM ON THIS PAGE.

Pin It on Pinterest

Share This