Areas of Practice
Rescission of Judgement
As is evident from the discussion below of the grounds on which you can apply for the removal / variation of a judgment, the requirements for each of these grounds, the time limits applicable thereto and the discretion granted to judicial officers, it is important that you obtain the services of our knowledgeable and experienced attorneys to assist you with the removal of judgments.
A judgment against your name can have a devastating impact on your credit record, impacting your ability to obtain finance, enter into a lease agreement and affecting many other aspects of your life. A paid-up letter from a creditor will not be sufficient to remove a judgment and you will need to make an application to the court that granted the judgement for the removal thereof. A judgment will remain on your credit record for 5 years and it will remain enforceable for 30 years should it not be rescinded.
When considering an application for rescission of judgment, one must distinguish between judgements that were granted in the High Court and those granted in the Magistrates Court.
Magistrates Court Judgments
Judgments granted in the Magistrates Court can be rescinded or varied in terms of Rule 49 of the Magistrates Court Rules in the following circumstances:
- Where a judgment was granted against you by default, you may, within 20 days after obtaining knowledge of the judgment, apply for the rescission of the judgment where you are able to show good cause or if there is a good reason to do so, where:
- 1 You dispute the claim and wish to enter your defence; or
- 2 You do not wish to dispute the claim, you were not in willful default and you satisfied the claim within a reasonable period after becoming aware of the judgment; or
- Where a judgement was granted against you by default and the Plaintiff has consented in writing to the rescission/variation of the judgment, you may apply for the rescission/variation at any time in terms of Rule 49(5).
- You may apply for rescission of all judgments and at any time if you have since paid the amount claimed, costs and interest in terms of Rule 49(5A).
- You may apply for rescission of all judgments within 1 year if the judgment was obtained as a result of fraud or mistake in terms of Rule 49(8).
High Court judgments
Judgments granted in a High Court can be rescinded or varied in the following circumstances:
- In terms of Section 23A of the Superior Court Act 10 of 2013 where:
- 1 The Plaintiff in whose favour a default judgment has been granted has consented to the rescission in writing; or
- 2 in the case of all judgments and whether or not the Plaintiff in whose favour the judgment was granted has consented in writing, where you have paid the amount claimed, the legal costs and interest.
- In terms of Rule 31(2)(b) of the Uniform Rules of Court you may apply for rescission of a default judgment within 20 days after acquiring knowledge of the judgment and upon good cause.
- Where a judgment was granted as a result of an error or common mistake you may apply for rescission / variation in terms of Rule 42 of the Uniform Rules of court at any time after the granting of judgment
- Under the common law on sufficient cause if you have an acceptable explanation for the default and you have a reasonable and bona fide defence to the matter. In this situation one needs to distinguish further between a judgment granted by default and a final and definitive judgment, the latter requiring fraud and or Justus error.
