IS A FINANCIAL INSTITUTION REFUSING YOU ACCESS TO CREDIT BECAUSE OF A DEFAULT JUDGEMENT?
An adverse civil judgment against a person’s name can greatly affect their ability to obtain credit and is often only noticed when they approach a financial institution to apply for credit. It is important to take legal advice as soon as one becomes aware of this situation.
Typically, default judgment for payment of a debt or a liquidated demand will be granted against a defendant if they fail to deliver a notice of intention to defend an action within the time stated in the summons. Or if they fail to deliver a plea or subsequent pleading within the time stated in Court Rules.
On failure of the defendant to defend the action, the plaintiff may lodge with the Clerk of the Court a written request for judgment in default. Should default judgment be granted and subsequently registered with a credit bureau this may prevent the judgment debtor from successfully applying for credit at a financial institution.
Fortunately, the law in South Africa does allow for this judgment to be set aside or rescinded by the Court. This can be done on application by the judgment debtor to the relevant Court within a time period specified by the Rules of the Court.
The following are examples of grounds upon which an application for rescission of the default judgment may be brought:
– If the judgment debtor has a valid defence that they had not raised as a result of having no knowledge to the legal proceedings. For instance, if the judgment debtor did not receive the summons notifying them of the legal action on grounds that it was served on an incorrect address.
– If the judgment debt, the interest thereon at the rate granted in the judgment and the costs have been paid in full or the judgment debtor has obtained a paid-up letter or confirmation from the judgment creditor.
– If the party who obtained judgment against you (judgment creditor) consents to the rescission or variation of the judgment.
Rescission procedure (in terms of Magistrate’s Court Rule 49):
The following general steps apply when bringing an application for rescission:
1. The judgment debtor must give notice to the judgement creditor and any other parties to the original case that they are bringing a rescission application.
2. This application is ordinarily supported by an affidavit setting out the grounds of the judgment debtor’s application.
3. Once the Court has granted an order rescinding the judgment, the applicant may notify the various credit bureau in South Africa to ensure that the judgment is removed from their credit profile and their records are updated.
The implications of judgments being made against a person can be serious and it is therefore important to approach an attorney as soon as you become aware of a default judgment against you.
Written by: Unathi Mayekiso (Candidate Attorney)
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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).