Beware of the default Judgement!

Commercial
Natan Back - May 30, 2022

Introduction

Getting sued and being served with a summons is a very scary thing for someone to go through, but getting a judgement against you has much worse consequences and is far scarier than getting served with a summons. Judgements have severe consequences on one’s life. An important thing to note is that if you are served with a summons, and do not respond to that summons without notice of intention to defend, a default judgement can be taken on you.

What if Default Judgement is Taken Against You?

Having a default judgement can raise an array of issues. Some of the issues include financial as banks may be concerned about giving you a loan as this judgement on your name poses you as a risk. As such, buying cars and even homes now become problematic with a judgement made on your name, and even rental agencies do credit checks on people signing the lease, and if they find that there is a judgement on the individual signing, the lease can be rejected on the grounds that one has a judgement on their name. Even getting jobs and becoming a director of a company poses you as a risk if a judgement is on your name. 

What is a Default judgement?

The term “default Judgement” refers to a judgement which is granted against a defendant who failed to defend an action brought against them, presumably without contesting the amount or claim. The judgement is then attached and registered against your name at the credit bureau when a court finds that you are liable for a debt or if you have failed to act in accordance with the Uniform Rules of Court.

Can I have a Judgement rescinded (Set aside)?

In South Africa, you are allowed to approach a court, on application, to rescind (set aside) the judgement that has been granted against you. 

There are three grounds on which one may apply for rescission of a default judgement:

  • If you have a valid defence to the claim that you did not raise, as a result of having no knowledge of the valid action
  • If the judgement debt has been fulfilled within a reasonable time of having knowledge of the judgement; or
  • If the party who obtained a judgement against you (judgement creditor) consents to the rescission.

Rule 31(2) (b) of the Uniform Rules of Court provides that a party against whom a default judgement has been granted may, within 20 days after he or she has knowledge of that default judgement, apply to a court to set it aside. In EH Hassim Hardware (Pty) Ltd v Fab Tanks CC the SCA stated that an applicant for rescission of judgement needs to show good cause by

(a) Giving a reasonable explanation for the default; 

(b) Showing that their application for rescission was made bona fide (in good faith) and not made merely with the intention to delay the plaintiff’s claim; 

(c) Showing that they have a bona fide defence to the plaintiff’s claim, which on face value has some prospect of success.

Conclusion

A default judgement can be made against you with or without your knowledge. It is important that as a consumer you do not take this lightly because of the implications that come with it. Having a judgement on your name is a double-edged sword which shows the extreme lengths and consequences that judgements have on one’s name. As a consumer, you need to take precautionary measures and follow through with the summons issued to you. Do not ignore it, go to an attorney who can assist you. You do not want your finances controlled by a curator after being declared insolvent.

Natan Back

Natan Back

Candidate Attorney

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