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LAW & THE ENTREPRENEUR
Securing expeditious
relief
Default judgment, summary judgment and provisional sentence
proceedings. By Kirsty Simpson
C
ourt proceedings often result
in relief being granted after
an extended period of time.
Trial proceedings in the High
Courts generally endure for
one to two years before relief is granted.
Proceedings in most Magistrates Courts
endure for almost as long. However, three
mechanisms have been built into the Court
Rules in order to allow an aggrieved party
the opportunity to secure expeditious relief
in certain limited circumstances.
The result of the summary judgment application, if successful, is that a final judgment
is granted in favour of the plaintiff without
the need to go to trial. The expense and delay of a trial is thus avoided if the defendant
cannot prove on affidavit that it has a valid
defence or counter-claim to the plaintiff’s
claim or if the defendant cannot give security for the amount claimed. If the summary
judgment application is not successful, that
is not the end of the main claim. The matter then merely proceeds to trial as it would
otherwise have done.
Speedy remedies
Seeking default judgement
Firstly, default judgment may be sought by
a party where the other party has failed to
indicate that it intends to defend the proceedings. In other words, where the matter is
unopposed. The process to apply for default
judgment is generally quick and involves an
application to court or the registrar, depending on the nature of the claim.
A default judgment may be set aside only
if the defaulting party provides a reasonable
explanation for the failure to defend the proceedings and proves that it has a bona fide
defence to the claim. It is therefore of utmost
importance that a defendant gives notice of
its intention to defend proceedings timeously, when a summons is served on it, so as to
avoid an adverse decision being taken.
Secondly, summary judgment proceedings
may be instituted by a plaintiff, where the
defendant has indicated that it intends to
»A
liquidated amount in money is based
on an obligation to pay an agreed or
determinable sum of money. The actual
amount due must be clear or capable of
speedy ascertainment.
Kirsty Simpson, Director, Brink Cohen
Le Roux
defend the claim but the plaintiff is of the
view that the defendant has no bona fide
defence to the claim.
Summary judgment
Summary judgment is an extraordinary remedy. These applications are permitted only
where the plaintiff sues on a liquid document
or for a liquidated amount in money, or for
delivery of specified movable property or for
ejectment from immovable property.
» A liquid document is one where the
debtor acknowledges its indebtedness, in
a fixed and determinable sum of money,
by its signature or that of its agent, eg.
cheque.
Thirdly, provisional sentence proceedings
allow a creditor a speedy remedy for the
recovery of money, without resorting to
cumbersome trial proceedings. Again, provisional sentence proceedings can be used
only where the plaintiff sues on the basis of
a liquid document.
Provisional sentence will be granted
against the defendant unless it can prove
that it has good prospects of success in
defending the claim of the plaintiff. Unlike
summary judgment proceedings, successful provisional sentence proceedings do
not result in the end of the matter. Instead,
provisional sentence is granted against the
defendant and the defendant is then free to
defend the matter, once it has acted in terms
of the provisional sentence. If the provisional sentence proceedings are unsuccessful,
the matter continues to trial in the normal
course, unless the summons is found to be
defective.
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