Imagine your surprise when a Sheriff of the Court arrives at your door with a document titled “Writ of Execution”, ready to seize your property, based on a judgment of which you have no knowledge. You might have an idea who the Plaintiff is, but you have never seen a summons and you have not had your day in court. Yet here you are, facing the enforcement of a judgment that seems to have come out of nowhere. Your stomach drops. How is this happening and what can you do?
There are number of reasons why this could be happening. The most common one is that a summons was issued, it was served (delivered) properly in terms of the rules of court at an address you are no longer at, and because no-one defended the action, the Plaintiff applied for default judgment.
The court would have considered the application for default judgment, and after satisfying itself that the Plaintiff’s claim is good, and that there was proper service of the summons in terms of the rules of court, it would have granted judgment in the plaintiff’s favour.
Having a judgment against you wreaks havoc with your credit worthiness, and you may find yourself being denied a home loan or vehicle finance because of a judgment for a relatively small amount.
The only way a judgment can be removed from your credit record is through an application for the rescission of that judgment, although until the rescission is granted, there is nothing stopping the Plaintiff from enforcing the judgment. A letter should be sent to the Plaintiff requesting that execution of the judgment be stayed pending the outcome of the rescission application. If the Plaintiff refuses to accede to this request, it may be necessary to bring an urgent application to force the Plaintiff to stay the proceedings.
A rescission application is brought in terms of Common Law, alternatively Rule 49 of the Rules Regulating Conduct of proceedings in the Magistrate’s Court or, if the judgment was granted in the High Court, in terms of Rule 31(2)(b) read with Rule 42 of the Uniform Rules of Court.
In terms of Common Law a rescission of judgment application should be brought within a reasonable time, but in terms of the rules of court in both the Magistrate’s Court and the High Court, it should be brought within 20 days of having knowledge of the judgment. Even if judgment was granted months or years prior, a party can still bring the rescission of application provided it is within 20 days from the date on which they obtained knowledge of the judgment. The facts supporting the delay in bringing the application must be fully set out in the affidavit supporting the rescission application, and it is the discretion of the court as to whether to condone the late filing of the application.
In order for a rescission application to be successful, the applicant party would, among other things, have to show the court that they were not in wilful default of the judgment, that they have bona fide (legitimate) defence to the claim, alternatively that judgment was erroneously sought or erroneously granted. Only once the application for the rescission of judgment has been granted, will the judgment be considered “cancelled” and will be unenforceable against you.
This does not, however, necessarily mean that the Plaintiff cannot issue summons against you for the same claim after the initial judgment is rescinded (unless, of course, the grounds for the rescission are that the debt was paid in full). The Plaintiff may well choose to start again, but would have to closely consider whether the claim has prescribed.
While having a judgment against you might feel scary, it does not have to be. It is imperative that when you are faced with a judgment, you approach a legal representative to explore your options, one of which would be to bring an application to rescind a judgment that should not have been granted in the first place.
Laura Sibanda
Associate
073 999 0593
laura@NLAteam.com
