Effective 11 March 2019, there is a new provision in the court rules that enables debtors to rescind their High Court judgements without having to show good cause.
Prior to 11 March 2019:
A person against whom a judgement had been granted in the High Court would need to apply to court and prove good cause for having such judgement rescinded. This required a debtor to prove:
- a reasonable explanation for the default;
- that the application for rescission is bona fide and not made with the mere intention to delay the claim against the debtor;
- that the debtor has a bona fide defence to the claim.
The mere subsequent settlement of a judgement debt would not constitute a cause for setting aside a lawfully issued judgement.
Effective 11 March 2019:
In terms of the Courts of Law Amendment Act No. 7 of 2017, section 23A was inserted into the rules to specifically provide for rescission of judgement with either written consent of the judgement creditor, alternatively where the judgement debt has been paid in full by the judgement debtor, irrespective of whether or not the judgement creditor has consented to the rescission of judgement. In the latter instance, the application for rescission:
- Must be made on a form that corresponds substantially with the form prescribed in the rules;
- Must be accompanied by reasonable proof that the judgement debt, the interest thereon and the costs have been paid;
- Must be accompanied by proof that the application has been served on the judgement creditor at least 10 business days prior to the hearing of the intended application;
- May be set down for hearing on any day not less than 10 business days after service thereof; and
- May be heard by a judge in chambers.
The court may make any cost order it deems fit with regard to such an application.
The aforesaid introduction of this new manner of rescinding judgements certainly is beneficial for debtors wishing to clear their records and does, in the writer’s view, fill a previous void in the rules pertaining to court judgements.
For professional legal advice and guidance, contact the Goldberg & de Villiers Inc. team on 041 – 501 9800.