How rescission of judgment is granted
AN application for rescission of judgment is an application made by a party against whom judgment was entered by the court in his or her absence or due to that person’s failure to file an appearance to defend.
It is an application that seeks a reversal of the judgment that was entered in the default of the person seeking its rescission.
It is made to rescind the decision of the court on the basis that the party making the application defaulted court proceedings or failed to attend court, or where a party failed to enter appearance to defend, resulting in a judgment being entered in default.
Generally speaking, if the court is satisfied in an application for rescission of judgment, that there is good and sufficient cause to do so, it may set aside the judgment concerned and grant leave to the defendant to defend the action or suit.
An application for rescission of judgment must be made and supported by affidavit of the applicant.
The application must be accompanied by the grounds which show good and sufficient cause why it should be granted.
The decision of Chetty v Law Society of Transvaal 1985 (2) SA 756 (A), lays down the essential elements of an application for rescission of judgment.
In order for the court to set aside a default judgment, the applicant must show good and sufficient cause. In Stockil v Griffiths 1992 (1) ZLR 172 (S) the Supreme Court considered the factors to be considered when examining “good and sufficient cause”
Although there are no precise rules regulating what matters, the court may take into account in deciding whether the applicant has shown the existence of good and sufficient cause:
(a) the applicant’s explanation of his default
(b)the bona fides of the application to rescind the judgment and
(c) the bond fides of the applicant’s defence on the merits of the case,and the court will normally consider these factors in conjunction with each other and cumulatively.
A “good and sufficient
cause” requirement gives the court a wide discretion and there is no exhaustive definition of what constitutes sufficient cause to justify the grant of indulgence. It is not limited to the above-mentioned factors that are normally considered. Even where there has been wilful default there may still sometimes be good and sufficient cause for granting rescission. The motive behind the default may give rise to good and sufficient cause, for instance. Rescission of judgment is an indulgence and the applicant must show what entitles him or her to that indulgence.
The applicant must give an explanation why he or she did not attend court or failed to file their papers to indicate that they intended to defend or oppose action or application instituted against them by the other party who obtained default judgment. For example, one may give a reason that he or she did not file any papers because he or she was not served with the court papers, or that the person who received the papers did not bring them to their attention in time for them to file their papers in defence of the claim.
Sometimes someone may fail to properly diarise the date of attending court and judgment is granted in their default. A person may not come to court because they are sick or attending a funeral. Someone can experience a vehicle breakdown on the way to court. By giving an explanation why they did not attend court or file opposing papers, an applicant will be trying to show the court that they were not in wilful default.
After they have explained his or her default, the applicant needs to explain his or her defence and show that it is a bona fide defence on the merits which if the judgment is rescinded, the defence has prospects to succeed.
Courts do not place emphasis on one factor: all factors must be regarded in conjunction. An unsatisfactory explanation for default may be compensated for by a very strong defence on the merits; and a completely satisfactory and reasonable explanation for the default may cause the court not to scrutinise the strength of the defence on the merits.
Depending on whether the application is in the magistrate’s court or High Court, the applicant has to file the application for rescission within a particular number of days from the date of default judgment or date he or she becomes aware of the default judgment.
A delay to file the application for rescission may require another court application to be filed for the delay in making the application to be condoned by the court.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda and Associates. He writes in his personal capacity. He can be contacted on +263772432646.