Securing Expeditious Relief
Court proceedings often result in relief being granted after an extended period of time.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.
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 default judgment being taken against it.
Secondly, summary judgment proceedings may be instituted by a plaintiff, where the defendant has indicated that it intends to defend the claim but the plaintiff is of the view that the defendant has no bona fide defence to the claim.
Summary judgment applications are permitted only where the plaintiff sues on a liquid document or for a liquidated amount of 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.
- A liquidated amount of 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.
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 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.
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.
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 in the normal course.