Many clients walk into a doctor’s consultation room under the impression that their little visit would be covered by their medical aid fund, however they are shocked when they are informed of a default judgment against their name when applying to purchase a vehicle and their application is denied. The excitement of having a brand new vehicle flies out the window and they are left with so many questions and anger.

Upon receipt of the Summons delivered to their residence or work place, by the Sheriff of the Court, the defendant has ten (10) working days to respond to the claim made in the Summons by the Plaintiff. Most people leave the Summons on the table and forget about it as a result of our busy lives.

We receive a telephone call from an angry client requesting immediate assistance with removing the judgment from their name, because they were unaware that they were indebted to their local doctor as their Medical Aid Fund failed to inform them that they would still be liable for the payment of a percentage of the doctor’s consultation fee. Most clients at that stage do not know who to approach nor do they know what it means when they have a judgment against their name.

In term of Section 12 of the Magistrates’ Court Rules a default judgment is denied as follow:

When the defendant fails to deliver a notice of intention to defend in the time stated in the Summons or before the lodgement of the request provided for in this paragraph, and has not consented to judgment, the Plaintiff may lodge with the Registrar or Clerk of the Court a request in writing together with the original Summons and return of service for judgment of:

1. Any sum not exceeding the sum claimed in the Summons or for other relief so claimed;
2. The costs of the action’ and
3. Interest at the rate specified in the Summons to the date of payment or, if no rate is specified, at the rate prescribed under Section 1 (2) of the prescribed Rate of Interest Act 55 of 1975.

The question then arises; what do you have to do in order to have a clear credit record?

It would be advisable to contact your Attorney and arrange for a consultation in order to establish what the way forward would be.

In terms of Section 49 of the Magistrates’ Court Rules, your Attorney would have to lodge an application for the rescission of the Default Judgment.

Section 49 of the Magistrates’ Court Rule:

1. A party to proceedings in which a default judgment has been given, or any person affected by such judgment, may within 20 days after obtaining knowledge of the judgment serve andfile an application to Court, on notice to all parties to the proceedings for a rescission or variation of the judgment and the court may, upon, good cause shown, or if it is satisfied that there is good reason to do so, rescind or vary the default judgment on such terms as it deems fit; provided that the 20 days’ period shall not be applicable to request for rescission or variation of judgment brought in terms of sub-rule 5 or 5A.

    

2. It is presumed that an applicant had knowledge of the default judgment 10 days after the date on which it was granted, unless the applicant proves otherwise.

    

   On receipt of Summons for a debt owing it is important to contact the Attorney who issued Summons, to make arrangements and to avoid further action being instituted.

3. The court will only grant an order to rescind the judgment once the defendant has satisfied the court that he wishes to defend the proceedings and his application has to be supported by affidavit setting out the reasons for the defendant’s absence or his default and the ground’s of the defendants defence or default, and the ground’s of the defendant’s defence to the claim.

    

4. Where an application for the rescission of default judgment is made by a defendant against whom the judgment was granted who does not wish to defend the proceedings, the applicant must satisfy the court that he or she was not in wilful default and that the judgment was satisfied, or arrangements were made to satisfy the judgment, within a reasonable time after it came to his or her knowledge.

The application:

1. Must be made on a form corresponding substantially with Form 5C of Annexure 1;
2. Must be accompanied by an affidavit with annexures providing reasonable proof that the judgment debt, the interest and costs have been paid; and
3. Must be served on the judgment creditors not less than 10 days prior to the hearing of the application.

Appointing an attorney to assist you with the process of the rescission of a default judgment can offer you assurance and help the process move along rapidly.  

Reference List

1. Section 12 of the Magistrates’ Court Rules
2. Section 1(2) of the Rate of Interest Act 55 of 1975
3. Section 49 of the Magistrates’ Court Rule