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Are courts really "courts of justice"?

Our courts, naturally, aspire to dispense justice. But another important function of the courts is to bring finality to disputes. It is undesirable that disputes should drag on endlessly without any resolution.

There are occasions where the courts realise that their judgments may not in fact bring about “justice”, but regard the attainment of finality in a dispute as more important.

For example, if a party is served with documentation which gives notice that legal proceedings are being instituted against him in the courts, and if (for whatever reason) he fails to give the requisite notice to the registrar of the court that he wishes to defend those proceedings, the court may grant a “default judgment” against him, in his absence.

Meanwhile, the truth of the matter may be that he has a perfectly good defence to the claim being made against him.

Default judgments can be set aside on certain grounds

The rules of court make provision for a party, against whom a default judgment has been given, to apply to have it set aside. But there is no absolute right to have a default judgment set aside. The rules provide that a judgment, granted in the absence of the defendant, can be rescinded (set aside) if it was –

“erroneously sought or erroneously granted in the absence of any party affected thereby”.

But under what circumstances is a judgment “erroneously sought or erroneously granted”?

In the recent case of Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd [2007] SCA 85 (RSA) the Supreme Court of Appeal pointed out that the mere fact that a default judgment was granted against a party who has, or may have, a valid defence does not mean that the judgment was “erroneously granted”.

The court pointed out that –

“A court which grants a judgment by default … does not grant the judgment on the basis that the defendant does not have a defence: it grants judgment on the basis that the defendant has been notified of the plaintiff’s claim as required by the rules [of court], that the defendant not having given notice of an intention to defend, is not defending the matter and that the plaintiff is, in terms of the rules, entitled to the order sought. The existence or non-existence of a defence on the merits is an irrelevant consideration and, if [the defence is] subsequently disclosed, cannot transform a validly obtained judgment into an erroneous judgment.”

In plain language, what this means is that if a plaintiff gives notice, in the manner required by law, to a defendant that he is applying to court for a judgment against that defendant, and if the defendant fails to file a notice with the clerk of the court that he is defending the matter, then the court will grant a default judgment against the defendant, and will not later set aside that judgment merely because it comes to light that the defendant had a valid defence to the claim.

A summons will warn of the need to lodge a notice of intention to defend

A summons, issued out of a court, will (after giving particulars of the claim) go on to say that if the defendant, named in the summons, wishes to defend the matter, he or she must, within a specified time, lodge a notice of intention to defend with the clerk of the court and that, if the defendant fails to do so, judgment by default may be given. There are many possible reasons why a person who receives a summons, in respect of which he has (or believes he has) a defence may fail to give notice that he is going to defend the matter. Inter alia –

• an employee on whom a summons or other legal process in respect of the employer was served may not realise its significance and may ignore it, or put it to one side, or fail to bring it to the attention of an employer, or the summons may lie, unattended, on the desk of someone who is away on leave.
  

(You should always refer any summons, or letter of demand, or any other legal document to your attorney without delay. And you should instruct the staff in the front office of your business that any such documents must be immediately referred to a senior manager and not just treated as ordinary correspondence.)

• the defendant may, in a contract, have appointed as his domicilium citandi et executandi (ie the nominated address where legal process may be served on him) an address which he has since vacated, and he may have forgotten to give notice of a change of domicilium.
  

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