Rescission of Default Judgment, Setting Aside a Judgment and Protecting Your Rights

Ross Hendriks | SchoemanLaw Inc

Category: Civil Litigation

Introduction

The principle of audi alteram partem—that every person should be afforded an opportunity to be heard—is a cornerstone of South African law.

Nevertheless, litigation does not always proceed with the participation of both parties.

Where a defendant fails to enter an appearance to defend, deliver the necessary pleadings, or attend court proceedings, a court may grant judgment in favour of the plaintiff by default.

Such a judgment can have significant legal and financial consequences, including the enforcement of debts, attachment of assets, and adverse credit implications.

Recognising that default judgments may occasionally be granted in circumstances that are unfair or unjust, South African law provides an important remedial mechanism known as rescission of judgment.

Rescission allows a party to apply to have a judgment set aside, thereby restoring the opportunity to present a defence and have the matter determined on its merits.

This article examines the legal framework governing rescission applications, the requirements that must be satisfied, and the principles developed by South African courts.

What Is Rescission Of Judgment?

Rescission of judgment is the legal process through which a court sets aside or nullifies a judgment previously granted.

Once rescinded, the judgment is rendered ineffective, and the parties are generally restored to the position they occupied before the judgment was granted.

The remedy serves an important function within the civil justice system by ensuring that litigants are not unfairly deprived of their right to be heard due to procedural irregularities, excusable defaults, or other circumstances recognised by law.

While rescission is commonly associated with default judgments, it may also be available in other circumstances, including where a judgment was erroneously granted or where procedural defects affected the fairness of the proceedings.

The Legal Framework

The principal statutory mechanisms governing rescission applications are found in:

• Rule 31(2)(b) of the Uniform Rules of Court (applicable in the High Court);
• Rule 42 of the Uniform Rules of Court;
• Rule 49 of the Magistrates' Courts Rules; and
• The common law.

Each mechanism has distinct requirements, although they share the overarching objective of ensuring fairness and preventing injustice.

Circumstances Justifying Rescission

A court may consider granting rescission in various circumstances, including:

Non-Service Of Court Documents

A party who was not properly served with the summons or application may seek rescission on the basis that they were unaware of the proceedings and were therefore deprived of the opportunity to defend the matter.

Excusable Default

Where a defendant failed to respond due to circumstances beyond their control—such as illness, mistake, administrative oversight, or unavoidable absence—the court may consider whether the default was excusable.

Procedural Irregularities

Rescission may be warranted where procedural defects or errors affected the validity of the judgment or the fairness of the proceedings.

Newly Discovered Evidence

Although less common, rescission may be sought where substantial new evidence emerges that could materially affect the outcome of the case.

Erroneously Granted Judgments

A court may rescind a judgment that was erroneously sought or granted in circumstances contemplated by Rule 42(1) of the Uniform Rules.

The Requirements For Rescission – Good Cause

The concept of "good cause" remains central to most rescission applications.

To establish good cause, an applicant must provide a reasonable and acceptable explanation for the default.

Examples include:

• Failure to receive the summons;
• Serious illness;
• Mistaken reliance on incorrect legal advice;
• Administrative or procedural errors; or
• Other circumstances demonstrating that the default was not wilful.

The explanation must be comprehensive, candid, and supported by evidence where possible.

A Bona Fide Defence

An applicant must demonstrate the existence of a genuine defence to the claim.

Importantly, the applicant is not required to prove the defence at the rescission stage.

However, sufficient facts must be disclosed to establish that the defence is bona fide and carries reasonable prospects of success.

A mere denial of liability or a vague assertion that a defence exists will generally be insufficient.

Promptness

Courts expect litigants to act expeditiously once they become aware of the judgment.

Under Rule 31(2)(b), an application for rescission must generally be brought within 20 days after the applicant acquires knowledge of the judgment.

Delays may prejudice the applicant's prospects of success and may require a separate application for condonation.

Rule 42 And Erroneously Granted Judgments

Rule 42(1)(a) of the Uniform Rules permits a court to rescind:

"an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby."

South African courts have consistently held that an applicant relying on Rule 42(1)(a) must establish two essential requirements:

• The judgment was granted in the applicant's absence; and
• The judgment was erroneously sought or granted.

Importantly, not every absence qualifies for rescission under Rule 42.

The courts have emphasised that the rule exists to protect litigants whose participation was prevented, rather than those who deliberately elected not to participate in the proceedings.

Furthermore, an error for purposes of Rule 42 generally refers to a fact or circumstance that existed at the time the judgment was granted and which, had it been known to the court, would have precluded the granting of the order.

The Common-Law Test For Rescission

Where rescission is sought under the common law, South African courts apply a well-established two-part test.

The applicant must show:

• A reasonable and satisfactory explanation for the default or absence; and
• A bona fide defence with reasonable prospects of success.

These requirements are cumulative.

Failure to satisfy either requirement will generally result in the application being dismissed.

The courts have repeatedly emphasised that rescission is not intended to provide litigants with a second opportunity merely because they are dissatisfied with a judgment.

Rather, it exists to prevent injustice where a genuine defence was not considered due to circumstances that justify judicial intervention.

Constitutional Court Guidance On Rescission

The Constitutional Court recently reaffirmed the narrow scope of rescission applications when considering an application brought by former President Jacob Zuma seeking to rescind a Constitutional Court order.

The Court emphasised several important principles:

• Rescission is distinct from an appeal and is not designed to reconsider the merits of a case generally;
• Rule 42 requires both absence and error to be established;
• A deliberate decision not to participate in proceedings does not constitute the type of absence contemplated by Rule 42;
• The common-law requirements of a reasonable explanation and a bona fide defence remain firmly established; and
• Courts must guard against abuse of the rescission process.

The Court reiterated that rescission remains available only to litigants who advance bona fide applications founded upon recognised legal grounds.

Procedure For Bringing A Rescission Application

The procedural requirements will vary depending on the court and the rule relied upon, but generally involve the following steps:

Step 1: Prepare The Application

The applicant must prepare:

• A notice of motion; and
• A founding affidavit setting out:
  • The circumstances surrounding the default;
  • The reasons why the judgment should be rescinded;
  • The applicant's defence to the claim; and
  • Any supporting documentation.

Step 2: Serve The Application

The application must be served on the judgment creditor or opposing party, who will be entitled to oppose the relief sought.

Step 3: Exchange Of Further Affidavits

Where opposed, the respondent may file an answering affidavit, and the applicant may file a replying affidavit.

Step 4: Court Hearing

The matter will be enrolled for hearing, during which the parties will present legal argument regarding the merits of the application.

Step 5: Judgment

The court will determine whether the requirements for rescission have been satisfied and whether it is fair and just to set aside the judgment.

Consequences Of A Successful Rescission Application

If rescission is granted:

• The default judgment is set aside;
• Any enforcement processes flowing from the judgment may be suspended or reversed;
• The defendant is afforded an opportunity to defend the matter;
• The litigation proceeds in the ordinary course; and
• The defendant will generally be required to deliver the necessary pleadings, including a plea where applicable.

The granting of rescission does not determine the merits of the dispute.

It merely restores the parties' opportunity to have those merits adjudicated.

Conclusion

Default judgments play an important role in ensuring the efficient administration of justice.

However, the law also recognises that fairness requires a mechanism to protect parties who were deprived of the opportunity to defend themselves through excusable default, procedural irregularity, or other recognised grounds.

Rescission of judgment serves as that safeguard.

Whether pursued under Rule 31, Rule 42, Rule 49, or the common law, a successful rescission application requires prompt action, a satisfactory explanation for the default, and a bona fide defence with reasonable prospects of success.

While the courts remain vigilant against attempts to misuse the rescission process, they continue to uphold the principle that disputes should, where possible, be resolved on their merits rather than through procedural default.

If a default judgment has been granted against you, obtaining legal advice without delay is essential.

The prospects of success in a rescission application often depend on swift action and the careful preparation of the necessary court papers.

Ross Hendriks | SchoemanLaw Inc

Specialist Employment and Labour Law

https://schoemanlaw.co.za/our-services/employment-law/