The cancellation or setting aside of any judgment or court order is known legally as the rescission of such an order. Unlike in the Magistrate Courts where a judgment can be rescinded once you have settled the debt and the creditor has consented to the judgment being rescinded, a High Court judgment can only be rescinded in certain exceptional circumstances.

The rescission of a High Court judgment is not an automatic right even where the consumer has settled the entire Home Loan or the arrears.

The fact that a creditor may consent to the removal of a high court judgment against you, is not grounds enough to have a high court judgment rescinded.

Many attorneys and even some creditors fail to point this out and often clients incur wasted legal costs. Please click on the information tabs below to assess whether you might have a case to rescind your high court judgment. Or complete the contact form below and we will provide you with a free, no obligation

What it means to have a judgement listed on your credit record

In short, it means you did not pay a debt at one point in time and the creditor you owed secured the debt by getting a court to grant a judgement against you. The judgement secures the debt as the creditor can now attach any property you own in order to satisfy the judgement debt.

Even though you may settle the debt concerned, the judgement listing shall remain on your credit record for a mandatory period of 5 years. Mandatory as the National Credit Act provides that a judgement listing must be reflected on your credit record for 5 years. Even the judgement creditor cannot request the credit bureau to remove the listing from your credit record.

Prior to the expiry of the 5 year period, a judgement listing can only be removed from your credit record if a rescission application is made to the very same court that granted the judgement in the first instance.

Rescission of a High Court Judgement

In short, it means you did not pay a debt at one point in time and the creditor you owed secured the debt by getting a court to grant a judgement against you. The judgement secures the debt as the creditor can now attach any property you own in order to satisfy the judgement debt.

Even though you may settle the debt concerned, the judgement listing shall remain on your credit record for a mandatory period of 5 years. Mandatory as the National Credit Act provides that a judgement listing must be reflected on your credit record for 5 years. Even the judgement creditor cannot request the credit bureau to remove the listing from your credit record.

Prior to the expiry of the 5 year period, a judgement listing can only be removed from your credit record if a rescission application is made to the very same court that granted the judgement in the first instance.

Good Cause

Once you have satisfied the Court that you were not in willful default in allowing the judgement to be entered against you, you must demonstrate that a substantial defence exists. It would be sufficient to show that you have a prima facie defence that is likely to succeed at trial.

Rule 42 of the High Court Rules sets out the grounds for the variation and rescission of an order. Good cause exists where:  an order or judgement was wrongly sought or granted in the absence of any affected party;  there is an ambiguity, a patent error or omission to the extent of such ambiguity;  an order or judgement was granted as a result of a mistake common to the parties.

• If the judgement creditor does consent to the rescission, the court will take the following into account:
  reasonableness in the behaviour of the applicant (the person bringing the application to set aside the judgements);
• that the application is made in good faith; and that the applicant has a bona fide substantial legal defence (based on the merits of the case).

Examples of legal defences

The following are examples of a good defence:

• fraud by the Plaintiff;
• an error in law (justus error);
• new documents are discovered;
• judgement was granted by default (without the Defendant being aware of the summons in the first place);  on grounds of just cause (justus causa).

At the end of the day, whether or not a court will set a judgement aside is solely within the discretion of the judge that hears the application.