By: Sarah Robinson / Candidate Attorney / Mooney Ford Attorneys
What is default judgment?
Default judgment is a binding judgment in favor a party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons. In such cases, it is reasonable to assume that the defendant is not disputing the claim or the amount in question. The default judgment process is governed by Rule 12 of the Magistrates Court Rules and by Rule 31 of the Uniform Rules of Court.
Under which circumstances can default judgment be granted?
There are four instances where default judgment may be requested:
- The defendant has not served and filed a notice of intention to defend.
- The defendant failed to deliver a notice of intention to defend timeously.
- The defendant entered a defective entry of notice of intention to defend.
- The defendant failed to deliver a plea.
Consequences of Default Judgments
Once a court has granted judgment in default in a civil matter, there will be an accompanying court order which will be signed and stamped by either a magistrate, judge or registrar. The court order establishes a judgment debtor and judgment creditor. A judgment debtor must pay the judgment debt to the judgment creditor. The judgment debt is immediately payable.
These judgments can negatively impact a person’s credit score as they are recorded on your credit report. Additionally, if the judgment debtor is unable to pay the judgment amount, this may result in a warrant of execution being issued and assets of the judgment debtor being attached by the sheriff and sold at auction or alternatively, may result in a section 65 financial enquiry, and an emoluments attachment order or garnishee order potentially being granted by the court.
In essence, an emoluments attachment order is a procedure whereby a debt may be collected from a judgment debtor. The order is served on the debtor’s employer (the garnishee), who is instructed to make regular weekly or monthly deductions from the debtor’s salary and to pay these deductions over to the judgment creditor. A garnishee order, on the other hand, allows a judgment creditor to attach a money debt owed to the judgment debtor by a third party. The order is served on the third party and attaches money owed by the third party (who is also known as a garnishee) to the judgment debtor. The third party or garnishee is then obliged to hand over to the judgment creditor directly as much of the attached money debt as is necessary to satisfy the judgment debt and costs.
What to do if default judgment has been granted against me?
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 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.
A party against whom default judgment has been granted, or any person affected by such judgment, may serve and file an application at court within 20 (twenty) days after obtaining knowledge of the judgment, and on notice to all parties to the proceedings, for rescission or variation of the judgment. The court may, upon good cause shown, or if it is satisfied that there is good reason to do so, rescind or vary the judgment on such terms it deems fit.
It is established law that the courts generally require an applicant for rescission of judgment to show good cause by:
- Giving a reasonable explanation for the default;
- Showing that his/her/its application for rescission is made bona fide and not made merely with the intention to delay the plaintiff’s claim; and
- Showing that he/she/it has a bona fide defence to the plaintiff’s claim which prima facie has some prospect of success.
In conclusion, the South African legal system provides a mechanism for those who find themselves on the receiving end of a default judgment. Accordingly, if you find yourself in this position it is essential to act promptly and seek legal advice in order to protect your rights and interests in the legal process.