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December 2018 Issue 16
 
 
Judgments It may happen even without a trial.

Even if the Defendant gives notice of intention to defend, there are instances when a judgment can be obtained before going to trial.

A judgment refers to a decision made by a court in respect of a legal dispute, for example, that one person must repay the amount of money s/he owes to another person. As a general rule, a court will only give a judgment after hearing both sides of the story during a trial. However, a court can also give a judgment without holding a trial or even without a person knowing about it. Some of these other manners of getting a judgment are shortly explained below.

Default judgment

  • A person cannot simply just ignore a summons against him/her, as it may lead to default judgment.
  • Default judgment is a judgment granted by the court against a person who has failed to respond to a summons that was served (delivered) on him/her.
  • After receiving a summons, the Defendant (a person against whom the summons is served) has 10 days (weekends and public holidays excluded) to give his/her notice of intention to defend and/or dispute the claim mentioned in the summons.
  • If the Defendant does not respond to the summons in time, default judgment can be applied for by the Plaintiff (person who claims something in the summons) because it is reasonable to suppose that the Defendant is not disputing the claim in the summons.

Summary judgment

  • Even if the Defendant gave his/her notice of intention to defend, there are instances when a judgment can be obtained before going to trial.
  • Summary judgment is a judgment granted by the court if the Plaintiff can prove that the Defendant has no valid defence and only gave the notice of intention to defend to delay the proceedings
  • The Plaintiff only has 15 days (weekends and public holidays excluded) after receiving the Defendant's notice of intention to defend to apply for summary judgment
  • The Plaintiff can only apply for summary judgment if the claim is based on:
    • a liquid document (for example, where the amount claimed is clear from a document without the need of any other evidence, such as an invoice/cheque);
    • a liquidated amount (for example, an amount which was agreed upon between the parties or easy to calculate);
    • delivery of specified movable property (for example, where a contract specifically provides that the Defendant must deliver something to the Plaintiff);
    • evictions from immovable property.
  • After the Defendant receives the application for summary judgment and s/he has a valid defence, s/he can oppose the application and file an affidavit setting out his/her reasons for defending the claim. The court will then make a final decision. 

Judgment by consent

  • Judgment by consent happens when a Defendant agrees to have judgment granted against him/her for the Plaintiff's claim without going through all the full court procedures to arrive at a judgment.
  • This is a form of settlement and can be made an order of court (judgment) at any time during the proceedings to speed up the process.

Interlocutory judgment

  • An interlocutory judgment is a judgment granted by the court for relief sought by a party that is related to the main proceedings, but which is not the main proceedings.
  • This is best explained in an example:
    • Where a couple is going through a divorce, the divorce will be the main proceedings.
    • However, during the divorce proceedings it might be necessary for one parent to claim interim maintenance from the other parent due to them being separated and living apart. This interim application for maintenance will be the interlocutory proceedings as it is not the main proceedings, but related to it.
Did you know:Judgment may be granted against you if you fail to respond to a summons.

Interim judgment   

  • An interim judgment is granted on the basis that there will be a final hearing and judgment at a later date.
  • An interim judgment is usually granted in urgent matters where action by the person wanting the interim judgment is necessary before all the parties or evidence is brought before the court.
  • For example, an interim judgment is where a child's parent urgently seeks an interdict to stop the other parent from removing the child from the country.  In this case, the court will hear the matter only on the evidence brought by the parent seeking the interim judgment (also known as in interim order). The court will then set down a final date of hearing to finalise the matter where the other parent will have an opportunity to present his/her evidence and argument.


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