Short answer
Rescission of judgment is one of the most powerful — and most underused — remedies available to South Africans with a default judgment on their name. Many people assume that once a judgment is granted there is nothing they can do, particularly if time has passed or if the underlying debt is real. In many cases this assumption is wrong. The rescission process exists precisely because default judgments are granted without the defendant being heard, and the law recognises that this creates the potential for significant injustice.
What is rescission of judgment?
Rescission is a court application asking the court that granted the original judgment to set it aside — to treat it as if it had never been granted. A successful rescission application does not mean the underlying debt disappears; it means the judgment is removed and the matter reverts to its pre-judgment state, giving the defendant the opportunity to defend the claim properly.
Once a judgment is rescinded, the credit bureaus are notified and the judgment listing is removed from your credit record. This is the only way to completely remove a judgment from your record — paying the debt reduces it to a "paid judgment" but does not remove it.
What are the grounds for rescission?
The primary grounds for rescission of a default judgment are set out in Rule 49 of the Magistrates Court Rules and the equivalent High Court rules. The applicant must show two things: a reasonable and acceptable explanation for the default — why the judgment was allowed to be granted without defence — and a bona fide defence to the plaintiff's claim on the merits.
Both elements must be present. A good explanation with no defence, or a good defence with no explanation for the default, is generally not sufficient.
Reasonable explanation for the default
Common acceptable explanations include: the summons was not received because it was served at an old address; the defendant was unaware of the proceedings; the defendant was not in the country; the summons was received but the significance was not understood; or the defendant was under the impression the matter had been settled.
The explanation does not have to be perfect — it must simply be reasonable and not wilfully negligent.
Bona fide defence to the claim
A bona fide defence means a genuinely held, legally recognised defence to the underlying claim. This could be that the debt is not owed, that the amount is incorrect, that a set-off applies, that prescription has run, or that the creditor has no locus standi to bring the claim.
The defence must be set out in the papers in sufficient detail to show that it is real — not merely an attempt to delay enforcement.
Step-by-step: how the rescission process works
Step one is obtaining the original judgment documentation — the summons, the return of service, and the judgment itself. These are obtained from the court record. Step two is assessing whether the grounds for rescission are present — this requires legal analysis of both the procedural history and the merits of the underlying claim.
Step three is drafting the founding affidavit — the sworn statement setting out the explanation for the default and the defence to the claim. This is the most critical document in the application. Step four is filing the application in the court that granted the judgment. Step five is serving the application on the plaintiff, who then has the opportunity to oppose.
Step six is the hearing, where the court considers both sides and decides whether to grant or refuse the rescission. If granted, a formal order is made. Step seven is notifying the credit bureaus of the rescission order so the judgment listing is removed.
Ready to start the rescission process?
KLS handles the full rescission process — from obtaining the court record to notifying the credit bureaus. We start with a free assessment of your grounds.
How long does rescission take?
The timeline depends on the court's roll, whether the creditor opposes the application, and the complexity of the matter. In a straightforward unopposed matter, the process can be concluded in 4 to 6 weeks from filing. An opposed rescission — where the creditor contests the application — can take 3 to 6 months or longer.
A realistic timeline is established at the outset of the matter once the court's availability is known and the creditor's likely response has been assessed.
What happens after rescission is granted?
Once the court grants the rescission order, several things follow. The matter reverts to its pre-judgment state — the original claim by the creditor is reinstated and must now proceed through the normal defended litigation process if the creditor wishes to pursue it. Many creditors, having had the judgment rescinded, opt to negotiate a settlement rather than pursue fresh litigation.
The credit bureaus are notified using a certified copy of the rescission order. Most bureaus update their records within 21 days of receiving the notification. Once updated, the judgment listing disappears from your credit profile entirely.
Judgment rescission is a well-established legal remedy with a clear process. The starting point is always a proper assessment of the grounds — and that assessment is something KLS provides free of charge.