Our Rules of Court and Case Law relating to this topic have dealt with this question on numerous occasions and in a recent Judgment in the Pretoria High Court (Chief Land Claims Commissioner and others v South African Agri Initiative (35659/2021)), this question was again asked, and in this instant the rescission application was not successful.
Our Rules of Court stipulate that you may within twenty days after acquiring knowledge of the Judgment apply to Court upon notice to the other party that the Judgment be set aside and the Court may upon good cause shown, set aside the Judgment on such terms it deems fit.
Should you not bring the application within those twenty days, you will have to address the Court and ask for condonation (in other words permission for the late delivery of the application).
The aforesaid Chief Land Claims Commissioner case dealt with a PAIA application that was brought, a Court Order was granted in favour of the applicant and the respondent (which had to provide the information in terms of the Court Order) did not respond to the Court Order, all while the Court Order had been served via the Sheriff and it had been sent to the respondent’s legal representatives. Approximately a 103 days later the entity which had to provide the information, brought a rescission application. In his Judgment, acting Judge Yende was critical of the application and emphasised that in the event of condonation, a party must give a comprehensive explanation as to the events that occurred which prohibited it from taking necessary and urgently required steps during the period for which it is seeking condonation. The Court held that the applicant had not done so and that the explanation for the delay was not satisfactory, therefore the rescission was not successful.
It is further of importance to note that a rescission application must be brought in the Court where the Judgment was given.
It has occurred in my practice that an individual or an entity only becomes aware of the Judgment once a Credit Check has been performed. Sometimes the Credit Check information is very limited to find precisely which Court granted the Judgement, however it can be traced one way or the other.
The important aspect to note is if you only become aware of the Judgment as a result of a negative credit notation at a particular Credit Bureau, then the twenty day period arises from the time that you became aware of the Judgment by way of the note on your credit record.
Further, the Credit Bureau will only remove the notation of the Judgment upon receipt of the Court Order and particular documents it requires. In my experience this varies from each and every Credit Bureau, therefore ensure that you not only instruct the attorney to rescind the Judgment, but also to ensure that it is removed from your name by the particular Credit Bureau. That does not happen automatically and it is of importance that you ensure those steps are taken, otherwise the Judgment will not be removed.
Lastly, this process can take anywhere between two months to four months, depending on the availability of dates in the particular Court and the time period required by the particular Credit Bureau.
The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.
Michéle Engela
Michéle Engela is a directorat CK Attorneys.
