What is a Recission Application?
A Rescission Application is a formal legal request to the court to have a judgement or order set aside. It signifies the cancellation or revocation of a judgment or court order. There are two instances where one would be required to file such an application in court. In this article we will unpack these instances.
Imagine an instance where you are in a contractual relationship with an organisation or an individual, a dispute arises and the aforementioned successfully obtains a judgement against you for breach of such contract or debt owed and you are unable to defend the matter. The reasons for the inability to defend being due to you no not being aware of the legal proceedings against you because of a number of various reasons which may include not receiving a letter and or summons that were:
- Served by way of affixing
- Served through a third party
- Prior to the service the creditor did not ascertain whether you still reside at the address known to them.
The second instance is where one (being the Judgement Debtor) has honoured their contractual obligation but for reasons that may be similar to those mentioned above or any other reason, Judgement is granted against them. In this instance, one may approach the Judgement Creditor to consent to having the judgement set aside. Even when the Judgement Creditor consents, the court still has the discretion to decide if such judgement should be set aside. In South Africa, a judgement can be attached to a party’s name (the Judgement debtor) for a period of 30 years which can be a hinderance.
The answer to these two scenarios is filing a recission application in court. The applicable rules in the respective courts are:
- Rule 49 of the Magistrate’s Court Act.
- Rule 31(2) (b) & (6) of the Uniform Rules of Court.
Applying to Court for a rescission of a judgment and applicable time bar.
- In terms of the said rules the party whom a default judgement has been granted against, or any person affected by such judgement may within 20 days of becoming aware of the judgement serve and file an application at Court for rescission of the judgement.
- Where an application for rescission of a default judgment is made by a defendant against whom the judgment was granted, who wishes to defend the proceedings, the application must be supported by an affidavit setting out the reasons for the defendant’s absence or default and the grounds of the defendant’s defence to the claim. If opposed, the normal formalities of a Court application shall follow.
- In an instance where a plaintiff in whose favour a default judgment was granted has consented in writing that the judgment be rescinded, either the plaintiff or the defendant against whom the judgment was granted, or any other person affected by such judgment, may, by notice to all parties to the proceedings, apply to the court for the rescission of the default judgment, which application shall be accompanied by written proof of the plaintiff’s consent to the rescission.
The requirements to be met for a successful application to rescind judgement are as follows:
- There must be a reasonable explanation for the failure to defend on time and/or appear before Court.
- There must be good cause/ bona fide defence.
- There was no wilful default.
NB: Each matter will be determined on its own merits.
The content of this article is intended to provide a general guide to the subject matter. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Contact your attorney for legal advice.
By Noluthando Maphatswana (Candidate Legal Practitioner) assisted by Sada Sy Jesse Raulinga (Director Litigation and Commercial)
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