A default judgment is a judgment brought against a party who has failed to defend an action. Our law makes provision for a default judgment under two circumstances. Default judgment can be made against a party who has either failed to enter an appearance to defend or against a person who has entered an appearance to defend but has failed to serve and file a plea. This article will focus on the first instance where a defendant fails to defend an action.

An action is defended by a notice of intention to defend, which is regulated by
r 19 of the Uniform Rules of Court. Where a defendant does not defend an action, it is reasonable to assume that they are not disputing the claim. It is only natural for a person accused of anything untruthful to want to defend themselves. The Rules are fair, in that a defendant is given time to enter an appearance, ten days for civil actions and 20 days for actions against state officials to defend from the date that the summons is served on them. The Rules give a further 20 days to enter a plea.

In the event that the defendant does not defend the action, r 31 gives the plaintiff a remedy of applying for default judgment. The Rules are also open ended and give the defendant an option to serve a notice of intention to defend any time before default judgment is granted.

Rule 19(5) in the Uniform Rules of Court reads:

‘Notwithstanding the provisions of subrules (1) and (2) a notice of intention to defend may be delivered even after expiration of the period specified in the summons or the period specified in subrule (2), before default judgment has been granted: Provided that, the plaintiff shall be entitled to costs if the notice of intention to defend was delivered after the plaintiff had lodged the application for judgment by default.’

Is the wording used in the Rule not too open-ended? In essence defendants can ignore a summons, ignore the application for default judgment and a day before the date of hearing, file their notice of intention to defend and they will still be within the time frame provided for in the rule, ‘any time before the hearing’.

The rule allows the applicant to be entitled to wasted costs. However, the goal of litigation in the first place is to get a relief not to only get costs. When we allow this to happen without any relief, this seems to be a violation of s 34 of the Constitution. Section 34 gives everyone a right to have their dispute heard in court. The applicant’s legal representative would have prepared for a hearing, which is then removed from the roll, because of a notice of intention to defend that was served a few hours or even minutes before the hearing.

Should our Rules, particularly r 31(5) be amended? In Nathram v Road Accident Fund (GP) (unreported case no 46876/2020, 26-4-2024) (Davis J) the court held the conduct of the respondent was an abuse of the court process as a notice of intention to defend was served more than three years after expiry of dies on the day before the hearing.

My opinion is, it should not even be based on the time between expiry of dies and the time of hearing, the wording of the Rules must be changed. Once the dies induciae to enter a defence has passed, the matter must proceed for the granting of default judgment, especially in instances where it is clear that the defendant received the summons. The defendant will still be allowed to proceed with a defence on the day of hearing. This will be fair on both parties in the light of the audi alteram partem rule and in terms of s 34 of the Constitution.

Mufaro Mushonga Hove LLB (Unisa) is a candidate legal practitioner at Tshilamatanda Inc in Kempton Park.

This article was first published in De Rebus in 2024 (Oct) DR 54.