Rescission of a judgment by application proceedings in terms of rule 49(8) and how prescription can help

When rescission of judgment is mentioned, many assume that such rescission can only take place when they have paid the judgment creditor in full, obtained a ‘consent to rescind affidavit,’ from the judgment creditor and instruct an attorney to rescind the judgment.

1. Rule 49(8) of the Magistrates Court Rules provides

Where the rescission or variation of a judgment is sought on the ground that it is void ab origine or was obtained by fraud or mistake, the application must be served and filed within one year after the applicant first had knowledge of such voidness, fraud or mistake.

2. Void ab origine simply means not valid from the beginning
3. Though there are many different scenarios that may play out in terms of this section, I’m going to use an example of extinctive prescription

4. In May 2015, Mr Jones is contacted by an attorney who demands payment on a judgment debt. Mr Jones had no knowledge of this Judgement debt until this point.

5. The facts: In January 2007, Mr Jones did take out a loan with ABC finance, regrettably he lost his job. On 18 February 2012, DEF Inc sues out summons, a return of service is provided by the sheriff, but Mr Jones never received such summons. An application for default judgment is initiated, and default judgment is granted in April 2012.

6. The question of void ab origine and how it applies: Had Mr Jones received a summons on 18 February 2012, he would have entered an appearance, filed a plea on merits as well as a special plea of prescription(This would have destroyed the entire action), as the debt essentially prescribed in January 2010)

7. How does one go about rescinding a judgment under such circumstances?

Motion proceedings on notice to all parties. In your application, you must be able to show clearly that the fact of judgment came to your knowledge within one year of knowledge of this voidness( In this illustration Mr Jones found out that there was a judgment against him in May 2015). You must be able to show that as at the time of judgment, you would have had a valid defense. Mr Jones will be able to show that he had a valid defence.