Rescission of High Court Judgments
The cancellation or setting aside of any judgment or court order is known legally as the rescission of such an order. Unlike in the Magistrate Courts where a judgment can be rescinded once you have settled the debt and the creditor has consented to the judgment being rescinded, a High Court judgment can only be rescinded in certain exceptional circumstances.
The rescission of a High Court judgment is not an automatic right even where the consumer has settled the entire Home Loan or the arrears.
The fact that a creditor may consent to the removal of a high court judgment against you, is not grounds enough to have a high court judgment rescinded.
Many attorneys and even some creditors fail to point this out and often clients incur wasted legal costs. Please click on the information tabs below to assess whether you might have a case to rescind your high court judgment. Or complete the contact form below and we will provide you with a free, no obligation quote.
- What it means to have a judgement listed on your credit record
- Rescission of a High Court Judgement
- Good Cause
In short, it means you did not pay a debt at one point in time and the creditor you owed secured the debt by getting a court to grant a judgement against you. The judgement secures the debt as the creditor can now attach any property you own in order to satisfy the judgement debt.
Even though you may settle the debt concerned, the judgement listing shall remain on your credit record for a mandatory period of 5 years. Mandatory as the National Credit Act provides that a judgement listing must be reflected on your credit record for 5 years. Even the judgement creditor cannot request the credit bureau to remove the listing from your credit record.
Prior to the expiry of the 5 year period, a judgement listing can only be removed from your credit record if a rescission application is made to the very same court that granted the judgement in the first instance.
Unlike in the Magistrate Courts where a judgement can be rescinded once you have settled the debt and the creditor has consented to the judgement being rescinded, a High Court judgement can only be rescinded in the following instances:
- The judgement was “sought or granted in error” or,
- You were not in “willful default” and “good cause” exists, i.e. you have a bona fide defence.
The fact that the arrears on the account or the account itself settled is not the basis upon which a High court shall grant the rescission of a judgement. Once again, even the judgement creditor cannot instruct the credit bureau to remove the listing from your credit record and even the creditors consent to rescind the judgement shall not automatically result in the High Court rescinding the judgement.
Sought or granted in error:
Examples of Instances when the judgement can be said to be erroneously granted include the following:
A. Before the date on which the judgement was granted you contacted the creditor or their attorneys and reached an agreement concerning the repayment of the account or any arrear amounts on the account. You subsequently did perform in terms of such an agreement. The agreement you reached need not have been in written and even a verbal agreement can be relied upon. If you do recall the names of the representatives of the creditor or the attorneys that you dealt with then great! If not, it is advisable to include a deposition (that is, a statement) in your rescission affidavit to the effect that you reached such an agreement with “a female or male representative of the Respondent (that is the creditor or their attorneys) whose name you cannot now reasonably recall.” If you do happen to have a copy of such an agreement then we advise you to include this, together with any other supporting documentation, in your affidavit as an “Annexure”
B. When you fell into arrears with the account, you contacted the creditor or their attorneys and they undertook or led you to believe that legal proceedings would be halted and or that no judgement would be granted against you. Once again, include any documentation that you may have that could explain why you came to think that the creditor or their attorneys would not take judgement against you. For example, your High Court judgement may relate to property you previously owned and that was subsequently sold and such sale came to the attention of the judgement creditor prior to the actual date on which the judgement was granted. If this was in fact the case, then it is arguable that the creditor should not have proceeded to take judgement against you.
Before a person can be said to be in willful default, he must have known that an action was being brought against him, but deliberately refrained from entering an Appearance to Defend, although he was free to do so, because he really could not care less about the consequences of not dealing with the matter.
Accordingly, if the summons did not come to your attention and the first you learnt about the judgement was when the Sheriff arrived at your house to make an attachment, you could not be said to have been in willful default. At present, the rules of our Courts do not require personal service, so that a summons is deemed to have been served, even if it is served on someone else on your behalf or is merely affixed to the front gate of your house. In these circumstances, it is possible and often likely that the summons will not be brought to your attention.
Another example would be where you dealt with the summons timeously by handing it to your attorney, but he inadvertently and not negligently misplaced the file in his office and it was through no fault of your own that judgement was entered against you.
Once you have satisfied the Court that you were not in willful default in allowing the judgement to be entered against you, you must demonstrate that a substantial defence exists. It would be sufficient to show that you have a prima facie defence that is likely to succeed at trial.
Rule 42 of the High Court Rules sets out the grounds for the variation and rescission of an order. Good cause exists where: an order or judgement was wrongly sought or granted in the absence of any affected party; there is an ambiguity, a patent error or omission to the extent of such ambiguity; an order or judgement was granted as a result of a mistake common to the parties.
- If the judgement creditor does consent to the rescission, the court will take the following into account:
reasonableness in the behaviour of the applicant (the person bringing the application to set aside the judgements);
- that the application is made in good faith; and that the applicant has a bona fide substantial legal defence (based on the merits of the case).
Examples of legal defences
The following are examples of a good defence:
- fraud by the Plaintiff;
- an error in law (justus error);
- new documents are discovered;
- judgement was granted by default (without the Defendant being aware of the summons in the first place); on grounds of just cause (justus causa).
At the end of the day, whether or not a court will set a judgement aside is solely within the discretion of the judge that hears the application.