Default judgment: Magistrates’ Court
When a defendant has failed to deliver the notice of intention to defend within the time stated in the summons or before the lodgement of the request provided for in this paragraph, and has not consented to judgment, the plaintiff may lodge with the registrar or clerk of the court a request in writing similar to Form 5 of Annexure 1 of the Magistrates’ Court Rules, in duplicate, together with the original summons and the return of service, for judgment against such defendant for-
(i) any sum not exceeding the sum claimed in the summons or for other relief so claimed;
(ii) the costs of the action; and
(iii) interest at the rate specified in the summons to the date of payment or, if no rate is specified, at the rate prescribed under section 1(2) of the Prescribed Rate of Interest Act 55 of 1975.
When the defendant has been barred in terms of rule 21B from delivering a plea, the plaintiff may lodge with the registrar or clerk of the court a request in writing for judgment in the same manner as when the defendant has failed to deliver the notice of intention to defend. Barring is dealt with later in detail.
The registrar or clerk of the court shall process the request and notify the plaintiff of the outcome of the request by returning the duplicate copy duly endorsed as to the result and the date thereof.
When the defendant has delivered the notice of intention to defend but has been barred in terms of rule 21B from delivering a plea and the registrar or clerk of the court has entered judgment in terms of a request lodged by the plaintiff, costs shall be taxed as if it had been a defended action.
If the original summons cannot be filed together with the request for judgment, the plaintiff may (i) file with the registrar or clerk of the court a copy or duplicate original of the summons and a copy of the signed return of service received from the sheriff; and (ii) file an affidavit stating the reasons why the original summons and return of service cannot be filed. In divorce actions or actions for nullity of marriage rule 22(5) shall apply.
If it appears to the registrar or clerk of the court that the defendant intends to defend the action but that his notice of intention to defend is defective, in that the notice-
(i) has not been properly delivered; or
(ii) has not been properly signed; or
(iii) does not set out the postal address of the person signing it or an address for service as provided in rule 13; or
(iv) exhibits any two or more of such defects or any other defect of form,
he must not enter judgment against the defendant unless the plaintiff has delivered notice in writing to the defendant calling upon him/her to deliver the notice of intention to defend in due form within 5 days of the receipt of such notice.
The notice must set out in what respect the defendant’s notice of intention to defend is defective.
Should the defendant still fail to deliver the notice of intention to defend, the plaintiff may lodge with the registrar or clerk of the court a written request for judgment in default of due notice of intention to defend. In divorce actions or actions for nullity of marriage, rule 22(5) shall apply.
Judgment in default of the notice of intention to defend must not be entered in an action in which the summons has been served by registered post unless the acknowledgement of receipt referred to in rule 9(13)(a) has been filed by the sheriff with his return of service.
When a claim is for a debt or liquidated amount in money and the defendant has failed to deliver the notice of intention to defend or, having delivered the notice of intention to defend, has failed to deliver a plea within the period specified in the notice delivered in terms of rule 21B and the plaintiff has in either case lodged a request for judgment, the registrar or clerk of the court may, subject to the provisions of subrules (2), (4), (5), (6) and (6A) grant judgment or refer the matter to the court in terms of subrule (7).
The registrar or clerk of the court shall refer to the court any request for judgment for an unliquidated amount and the plaintiff shall furnish to the court evidence either oral or by affidavit of the nature and extent of the claim, whereupon the court shall assess the amount recoverable by the plaintiff and give an appropriate judgment. The court has a discretion as to whether or not to grant default judgment, despite the use of the word ‘shall’ in the subrule.
The registrar or clerk of the court must refer to the court any request for judgment on a claim founded on any cause of action arising out of or based on an agreement governed by the National Credit Act, 2005, the Credit Agreements Act, 1980 (Act 75 of 1980), or the Consumer Protection Act, 2008, and the court shall thereupon make such order or give such judgment as it may deem fit.
If the action is based on a liquid document or any agreement in writing the plaintiff shall together with the request for default judgment file the original of such document or the original agreement in writing or an affidavit setting out reasons to the satisfaction of the court or the registrar or clerk of the court, as the case may be, why such original cannot or should not be filed.
If a claim is founded on any cause of action arising out of or regulated by legislation, then the plaintiff shall together with the request for default judgment file evidence confirming compliance with the provisions of such legislation to the satisfaction of the court.
The registrar or clerk of the court may refer to the court any request for judgment and the court may thereupon-
(a) if a default judgment be sought, call upon the plaintiff to produce such evidence either in writing or oral in support of his claim as it may deem necessary;
(b) if a judgment by consent be sought, call upon the plaintiff to produce evidence to satisfy the court that the consent has been signed by the defendant and is a consent to the judgment sought;
(c) give judgment in terms of plaintiff’s request or for so much of the claim as has been established to its satisfaction;
(d) give judgment in terms of defendant’s consent;
(e) refuse judgment; or
(f) make such other order as it may deem fit.
When the registrar or clerk of the court refers a request for judgment to the court, it shall be recorded, dated and signed by the registrar or clerk of the court on the cover of the court file.
For more go to Notes on action (trial) proceedings
