In terms of Rule 49(1) of the Magistrate's Court Act No. 32 of 1944 (the "Rules") an applicant launching an application for the rescission of a judgment as a party to proceedings in which a default judgment has been granted against it, or any person affected by such judgment, may within 20 (twenty) days after obtaining knowledge of the judgment, serve and file an application to Court, on notice to all parties to the proceedings, for a rescission or a 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 default judgment on such terms as it deems fit. It is necessary in the circumstances to show good reason for any failure to defend the action timeously.
It will be presumed that the applicant had knowledge of the default judgment 10 (ten) days after the date on which it was granted, unless proven otherwise. Where an applicant launches an application for rescission of judgment because it wishes to defend the proceedings, such rescission application must be supported by an affidavit setting out the reasons for the applicant’s absence or default and the grounds of the applicant’s defence to the claim.
Whilst the Courts have not provided a precise meaning for the term "good cause", our Courts as a rule consider that there is good and sufficient cause if an applicant is able to provide a reasonable explanation for the default, if it is able to show that it is bona fide in its application and if it is able to show that it has a bona fide defence to the Plaintiff's claim which, prime facie, has some prospect of success. Ultimately the main consideration is that of fairness.
In De Witt Auto Body Repairs (Pty) Ltd v Fedgen Insurance Company Limited it was held that the question is whether or not the explanation for the default and the accompanying conduct by the defaulters, be it wilful or negligent or otherwise, gives rise to the probable inference that there is no bona fide defence and that the application for rescission is not bona fide. The Magistrate's discretion to rescind the judgments of his Court is therefore primarily designed to do justice between the parties. He should exercise that discretion by balancing the interests of the parties, bearing in mind any prejudice that might be occasioned by the outcome of the application.
The onus falls on the applicant pursuing “good cause” to furnish an explanation for his default sufficiently full to enable the Court to understand how it really came about and to assess his conduct and motives. In summary the applicant must show, in order to succeed with the rescission of judgment application, that:
The nature of the applicant's default is one of the various considerations which Courts will take into account in the exercise of the discretion to determine whether or not good cause has been shown.
An applicant who is grossly negligent is highly unlikely to be able to show good cause.
Apart from the fact that a Court may rescind a judgment upon good cause shown, it may also do so if it is satisfied that there is “good reason” to do so. This is important inasmuch as if there is good reason to doso, a judgment may be rescinded even if good cause is not demonstrated. Courts have held that the good reason provision merely affords the jurisdictional power to a Court to grant an application for rescission of judgment in a case where good cause is not shown by the applicant if it is appropriate to do so.
The Court has a wide discretionary power to be exercised on the peculiar aspects of the case. Conduct is a relevant criterion to be judged with other relevant matter. A poor explanation may be compensated by a good defence if it is in the interest of justice to do so.
It is advisable that an applicant seeking an indulgence from the Court for a rescission of judgment should properly tender the payment of wasted costs arising from the rescission of judgment application which would go some way to addressing any prejudice that the plaintiff may suffer as a result of the outcome of the application.
The general rule is that the applicant for an indulgence should pay all costs as can reasonably be said to be wasted because of the application and, usually, these costs include the cost of an opposition as may be reasonable.
For assistance and advice on this and other legal matters, contact Rushmere Noach director Christopher Arnold.