Default judgment

March 23rd, 2016
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By Mohammed Moolla

Default judgment is a judgment entered against a party who has failed to defend a claim that has been brought by another party.

Where the defendant fails to defend an action, it is reasonable to suppose that the defendant is not disputing the claim or amount.

Judgment by default is covered under r 12 of the Magistrates’ Courts Rules.

There are four instances where default judgment may be entered into:

  • The defendant has not served and filed a notice of intention to defend.
  • The defendant failed to serve and file a notice of intention to defend timeously (see below).
  • The defendant failed to file a plea.
  • The defendant entered a defective entry of notice of intention to defend.

The following are the most important requirements for any action:

  • Locus standi – right to institute action.
  • Cause of action – have proper claim.
  • Jurisdiction – either s 28 where defendant resides or works or consented to in terms of s 29.

Procedure

  • The plaintiff lodges a written request for default judgment if the defendant fails to file a notice of intention to defend within ten days.
  • The request must be in duplicate.
  • Original summons, sheriffs return of service and documents on which cause of action is based, (if applicable) must accompany the request.
  • The correct case number must be reflected.
  • The plaintiff may only claim the amount, not exceeding the amount claimed in summons, plus costs and interest as claimed in the summons.

If the defendant delivered a notice of intention to defend but failed to deliver a plea – the plaintiff may deliver a notice of Bar calling on the defendant to deliver a plea within five days hereof, failing which, the defendant will be barred from filing a plea and judgment may be entered into.

If judgment is entered into after the plaintiff has failed to file a plea the costs order made is for taxed costs.

The process

The magistrate endorses both the requests that judgment is granted.

In the event that the notice of intention to defend is defective, in that it –

  • is not properly delivered;
  • is not properly signed; or
  • does not set out an address within 15 km radius, default judgment may not be entered unless the plaintiff has delivered a notice calling on the defendant to rectify that within five days (r 12(2)(a)).

Default judgment is not entered for summons served by registered post, unless there is an acknowledgement of receipt in terms of r 9(13)(a). Summons must be served on the defendant or agent and ten days must have lapsed. The summons may be served at the residence of the defendant or his place of business. Service is usually effected on a person over the age of 16 years or a person apparently in authority of the person at his place of work. As regards to service on companies, namely, close corporations or trusts, service may be effected at their registered offices.

Where the claim is for an unliquidated amount or for damages the plaintiff shall furnish the court with evidence either verbally or by affidavit, whereupon the court shall assess the amount recoverable. Examples of such matters are defamation and damages in collision matters. All claims for damages require an affidavit of an independent expert.

Where the claim is on a liquid document or agreement, the plaintiff must file the original of such document or an affidavit setting out reasons as to why the original is not filed.

Where there are several defendants, the plaintiff should request default judgment against the defendants jointly and severally, the one paying the other to be absolved.

Section 58 states requests for default judgments are consent judgments where summons was not issued.

Important recent case law

The case of Sebola and Another v Standard Bank of South Africa Ltd and Another (Socio-Economic Rights Institute of South Africa and Others as Amici Curiae) 2012 (8) BCLR 785 (CC) dealt with the extent to which a credit provider must bring the s 129 notice to the attention of the consumer. In fact it is not clear in respect of how a written notice must be brought to the attention of the consumer. Would an e-mail be sufficient? Would normal post be sufficient? What if the notice sent did not come to the attention of the consumer?

It was this ambiguity which formed the basis in the Sebola matter. They defaulted in their repayments to Standard Bank. Standard Bank sent them a notice by registered post. The notice was misdirected and instead of being sent to the intended post office in North Riding, it was sent to a post office in Halfway House.

The result was that they never received the notice. Judgment was obtained against them. The nett result was that the Sebolas were never able to exercise their consumer rights in referring the matter to, for instance, a debt counsellor.

The Constitutional Court was tasked with determining what delivery method a s 129 notice entails. The court was constrained that the National Credit Act 34 of 2005 (the NCA) does not define the concept of ‘delivery’ and the NCA demands neither proof of delivery, nor the question of: Did the notice come to the attention of the consumer? The credit provider must make averments that will satisfy the court on a balance of probabilities that the notice did reach the consumer.

As a result, it means that in future credit providers must be able to show that they have sent the letter by registered post, as well as obtained a track and trace print out from the post office to show that the letter was indeed delivered to the correct post office.

In another case, Mhlokonya v Company Unique Finance (Pty) Ltd (ECG) (unreported case no CA04/2012, 18-10-2012) (Goosen J), the Eastern Cape High Court confirmed that default judgment cannot be competently given where a defendant has given due and proper notice of his intention to defend the action (see also Mthanthi v Pepler 1993 (4) SA 368 (D) at 371 – 372).

There has also been proliferation of decisions in the recent past arising from the provisions of the NCA, especially insofar as home loans are concerned. It has given rise to different and divergent rules of practice or practice directions in various divisions of the High Court.

In the Constitutional Court case of Gundwana v Steko Development CC and Others (National Consumer Forum as Amicus Curiae) 2011 (8) BCLR 792 (CC) the court had to consider ‘all relevant circumstances’ before declaring a property executable, which was the primary residence of the judgment debtor/defendant.

A host of relevant circumstances which a court may be required to consider appear in the judgment of the Constitutional Court in Jaftha v Schoeman and Others, Van Rooyen v Stolz and Others 2005 (1) BCLR 78 (CC) matter. In terms of Blignault J’s judgment in Nedbank Ltd v Jessa and Another 2012 (6) SA 166 (WCC), the court held that the summons must, in addition, include an appropriate notification to the defendant that he or she is entitled to place information regarding relevant circumstances within the meaning of s 26(3) of the Constitution.

In the case of Standard Bank of South Africa Ltd v Dawood 2012 (6) SA 151 (WCC), the Western Cape High Court stated that:  ‘The size of the debt will be a relevant factor for the court to consider. It might be quite unjustifiable for a person to lose his or her access to housing where the debt involved is trifling in amount and significance to the judgment creditor.’ The court went on to further state the relevant factors referred to in the Jaftha matter, which includes: ‘The availability of alternatives which might allow for the recovery of debt but do not require the sale in execution of the debtor’s home.’ The court held that to grant an order declaring the defendants home executable for such a paltry amount would be disproportionate in the circumstances. The court, also stated that no reason was advanced as to why the plaintiff could not effectively utilise debt collecting mechanisms in terms of the Magistrate’s Court Act 32 of 1944 and rules to obtain payment of the debt.

Checklist for granting default judgment

This is not a conclusive checklist, but should provide some assistance:

  • Summons must be in the prescribed form (updated rules).
  • Summons must be issued.
  • Proper service must be effected and Sheriffs return attached (no electronic signatures unless compliant).
  • Summons must be date stamped and signed by clerk of court.
  • Summons must be signed by plaintiff or attorney.
  • Case number.
  • Any amendments to summons initialled prior service.
  • If amended, is there compliance in terms r 55A of the Magistrates’ Courts Rules.
  • Name and physical address of attorney or plaintiff to appear and a 15 km distance radius.
  • Does the summons disclose cause of action?
  • Does the magistrate’s district correspond with place of issue?
  • Does name of place correspond with where court sits?
  • Does the plaintiff have locus standi?
  • Does the defendant have locus standi namely, a minor?
  • Does the plaintiff have cause of action?
  • Does the court have jurisdiction, place and amount?
  • Has the dies induciae expired?
  • Has the defendant filed a notice of intention to defend –

– within the time limit?

– before request for default judgment has been filed?

– on the same day that request has been filed?

  • If a written agreement is relied on, has the liquid document and original been filed?
  • Does the request have correct parties and correct case number?
  • Is the amount claimed for, costs and interest corroborated in the summons?
  • Are the details of claim, costs and interests recorded on the file cover?
  • Is the classification of claim recorded on cover?
  • Does the file cover have the corresponding case number?
  • NCA matters – is there compliance with ss 129 and 130 notices?
  • Is credit provider registered with National Credit Regulator? Is the registration valid at time credit agreement was entered into?
  • If not registered, does credit provider have less than 100 credit agreements at any given time? Are the credit agreements less than R 500 000 in value?
  • Reckless credit – is there allegation in summons or an affidavit that an assessment to prevent reckless credit in terms of s 81 conducted resulting in no reckless credit being granted? Section 83 of the NCA places an onus/obligation on the court in all matters relating to credit agreements for the court to consider whether there was reckless credit granted. The court has the power to suspend reckless credit agreements. In terms of
    s 83 of the NCA, the court may set aside or suspend the entire agreement or restructure the consumer’s obligations under credit agreements. The court may put onus on the applicant to show no reckless credit was granted.
  • Is the consumer over-indebted? The court may declare the consumer over indebted and relieve indebtedness in terms of s 79. Onus on consumer unless inferred or clearly indicated in pleadings.
  • Is the credit agreement unlawful – s 89?
  • Does the credit agreement have unlawful provisions – s 90?
  • Is there compliance with maximum interest rates under specific categories?
  • Are there any administrative or default charges? Is compliance with the tariffs?

The recent case of University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others (South African Human Rights Commission as Amicus Curiae) [2015] 3 All SA 644 (WCC), the Cape Town High Court found that consents were not obtained voluntarily, nor on an informed basis. Consumers or debtors were required to consent to a jurisdiction of the magistrate’s court, which did not have jurisdiction over them. Some judgments were obtained fraudulently. It was also found that the words ‘judgment debtor has consented thereto in writing’ in s 65J(2)(b)(i) and (ii) of the Magistrates’ Court Act are constitutionally invalid to the extent that they allow for emoluments attachment orders (EAOs) to be issued by the clerk of the court without judicial oversight. The judgment debtor should have some right to dispute the validity or correctness of the balance owing and should have the power to set aside or amend an EAO on good cause. The issuing of the order also has contradictory ramifications as far as jurisdiction is concerned. The way of avoiding and preventing any misuse of s 45 is to request that a proper application be brought to court, wherein the magistrate will determine if the instalment claim is reasonable and affordable by the debtor.

Mohammed Moolla BProc (UKZN) is a magistrate in Cape Town.

This article was first published in De Rebus in 2016 (April) DR 17.

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