Where a default judgment was granted erroneously and a valid defence can be provided, an application for Rescission of Judgment may be made. Thabiso Tshukudu explains what a Rescission of Judgment is and when it can be applied for.
Transcript
[00:08][Eon] Legal Talk with Hahn and Hahn Attorneys, here on eRadio every Wednesday at ten o'clock in the morning. And this week, we're chatting to Thabiso Tshukudu from Hahn & Hahn Attorneys, and we're going to talk about the rescission of judgment. That's something we are going to learn about this week. Thabiso, once again, welcome back, and nice to chat to you.
[00:36][Thabiso] Well, thank you very much. It's a pleasure for me to be here.
[00:40][Eon] Now, Thabiso, let us start with the basics. What is rescission of judgment?
[00:45][Thabiso] Well, Eon, rescission of judgment is the process where a court is asked to set aside a judgment that has already been granted. This often happens where judgment was taken by default, for example, where someone did not enter an appearance to defend or did not attend court. So, rescission of judgment is a mechanism to correct injustice in appropriate cases.
[01:13][Eon] Alright, and when can someone apply for rescission?
[01:18][Thabiso] Well, in a South African legal context, the person can apply for rescission in several situations. Common examples include where judgment was erroneously granted, where the person can show good cause for not defending a matter, or where there was some procedural irregularity, such as not receiving proper notice of the court documents. The court will look at whether there is a proper legal basis to undo judgment.
[01:48][Eon] And, let's say, if someone did not appear or did not defend the case, do they have to explain why?
[01:56][Thabiso] Yes, absolutely. A court will usually expect a full and reasonable explanation for the default. The person must basically explain why they did not respond to the summons, why they did not file the necessary papers, and why they didn't attend to court if that was the case. If the court believes the default was wilful, in other words, it was deliberate, that can seriously undermine the application to the court.
[02:29][Eon] And is it enough for that person simply to say, "I want another chance"?
[02:35][Thabiso] Absolutely not, that is not enough. The applicant must usually show a bona fide defence that is a real defence with prospect of success. The court is not simply reopening matters just to be generous to the applicant. It wants to know whether there is a genuine dispute that should be heard because it was not heard. So, the person must place enough facts before the court to show that the defence is real and not just a delaying tactic.
[03:08][Eon] And, Thabiso, what is your practical advice for someone who discovers that a judgment has been taken against them?
[03:17][Thabiso] The first and most important point, Eon, is act quickly. Delay can be very damaging in a rescission application. The person should obtain all the court papers, find out exactly how the judgment was granted, and identify the legal basis for seeking rescission. The application must usually explain when the person became aware of the judgment, why the default happened, and what defence exists to the claim. The papers must be very clear, detailed, and credible, and, to reiterate, you need to act quickly. The moment you become aware of a default judgment listed in your name, you act quickly to make an application to the court for rescission.
[04:02][Eon] And just finally, Thabiso, before we end off today, why is rescission of judgment such an important part of the legal system?
[04:14][Thabiso] Well, Eon, it balances two important principles. On the one hand, court judgments must be respected, and there must be finality in litigation. On the other hand, the law must also prevent injustice where a judgment should not have been granted, or where a person has a genuine defence but was not heard. Rescission is therefore an important safeguard, but it is not automatic, and it requires proper grounds.
[04:45][Eon] And that's rescission of judgment here on Legal Talk today, with thanks to Thabiso Tshukudu from Hahn & Hahn Attorneys. Thabiso, thanks so much for joining us.
[04:57][Thabiso] Thank you, it was a pleasure.