Rescission of Judgment

01 July 2024 94

What type of judgments can be rescinded?

Section 36 of the Magistrates Court Act 32 of 1994 states the various reasons why a judgment can be rescinded. It states that judgment can be rescinded by any person affected thereby:

“(a) rescind or vary any judgment granted by it in the absence of the person against whom that judgment was granted;

(b) rescind or vary any judgment granted by it which was void ab origine or was obtained by fraud or by mistake common to the parties;

 (c) correct patent errors in any judgment in respect of which no appeal is pending;

 (d) rescind or vary any judgment in respect of which no appeal lies.

(2) If a plaintiff in whose favour a default judgment has been granted has agreed in writing that the judgment be rescinded or varied, a court must rescind or vary such judgment on application by any person affected by it.”

PRACTICAL APPLICATION

Suppose a default judgment has been granted against you, you are permitted to within 20 days of your knowledge of such judgment, to make an application to the relevant court for a recission of judgment. You are required to notify the other parties of your intention to rescind the judgment. The rescission or variation is based on the court's discretion whether good cause has been shown and if there is a compelling reason for it to do so.

The rescission of judgment application made by the party to whom default judgment was granted and aims to defend proceedings, must submit a supporting affidavit that states the reasons as to why they defaulted and provide reasons to defend their claim.

If an application for the recission of judgment is made by a party who was in default but does not wish to defend the proceeding. Such party must satisfy the court that their default was not intentional and wilful and that the judgment was satisfied within a reasonable time frame after they had knowledge of it.

 

 

 

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