Default Judgment Research Articles

A consideration of the Registrar’s powers in matters relating to the National Credit Act: An analysis of Gcasamba v Mercedes-Benz Financial Services (Pty) Ltd and Ngandela v Absa Bank Ltd

Section 23 of the Superior Courts Act 10 of 2013, read with rule 31(5) of the Uniform Rules of Court, empowers the Registrar of the High Court, save in exceptional circumstances involving residential property, to grant default judgments. The purpose of this rule is to prevent the overburdening of the court roll and judicial workload by allowing Registrars the discretion to grant default judgments in uncomplicated, undefended matters. In recent judgments in Gcashamba v Mercedes-Benz Financial Services SA (Pty) Ltd & another 2023 (1) SA 141 (FB) and Ngandela v Absa Bank Ltd & another [2023] ZAECELLC 6, the courts both found that a Registrar is not empowered to grant default judgments in matters relating to the National Credit Act 34 of 2005. The question thus arises whether the National Credit Act has changed and effectively reduced the Registrar’s powers. The implications of these judgments are far-reaching. Not only do they appear to have lessened the powers of the Registrar, but they also have the effect of increasing the administrative workload of judges and potentially delaying the enforcement process of credit agreements subject to the National Credit Act.

Review of default judgment in civil proceedings

The article is devoted to the analysis of the procedure for review of a decision in absentia in a civil proceeding by a court of first instance and its procedural consequences.
 It is noted that there is a special and general procedure for reviewing a decision in absentia in a civil process, where submitting an application for review of a decision in absentia to the court that passed it is considered as a special procedure for reviewing it. It is indicated that this procedure can be considered in the context of self-control of the court of first instance in civil proceedings.
 The subjects of submitting an application for review of a decision in absentia, its form, content, terms and procedure of submission are analyzed. Attention is drawn to the attachments to the application for review of the decision in absentia. It is indicated that the defendant has the right to submit such an application even if the decision in absentia is passed in his favor.
 An application for review of a decision in absentia may not be considered by the court and returned to the person if he has not registered an electronic office in the Unified Judicial Information and Telecommunication System. Until such a person registers an electronic account, he cannot demand the cancellation of a decision in absentia. The specified procedural consequences also occur if the interests of a person who has not registered an electronic account are represented by a lawyer who has a registered electronic account. This manifests a limitation in a person's ability to protect his rights, freedoms and interests in court.
 The procedure for considering an application for review of a decision in absentia is analyzed, and the grounds for court rulings on the satisfaction of such an application and cancellation of the decision in absentia or leaving the application unsatisfied are investigated. It is noted that the satisfaction of the application for review of the decision in absentia does not yet mean the adoption of the court decision automatically in favor of the defendant, since the consideration of the case starts from the beginning on general principles. The court will schedule a new court session to consider the merits of the case, informing all interested participants in the process.
 Attention is drawn to the peculiarity of the defendant's exercise of the right to appeal against a decision in absentia or a repeated decision in absentia, and it is also indicated under which conditions this is possible. It is noted what to do if an application for annulment of a decision in absentia by the defendant and an appeal by the plaintiff was filed at the same time.

Chetty v Perumaul (AR313/2020) [2021] ZAKZPHC 66 (21 September 2021) - A cautionary note on the self-inflicted injury of disastrous and careless cross-examination

The Deputy Judge President of the Gauteng Local Division of the High Court recently commented on the functional interrelationship between judicial and legal professional ethics (Sutherland "The Dependence of Judges on Ethical Conduct by Legal Practitioners: The Ethical Duties of Disclosure and Non-Disclosure" 2021 SAJEJ Vol 4, Issue 1 47-64). Sutherland appropriately states that a culture of ethical conduct by legal practitioners is critical to ensure expeditious litigation and just outcomes (Sutherland 2021 SAJEJ 48). Many others also stress the general importance of professional ethics in legal education, practical legal training, and practice. Nonetheless, unprofessional, dishonourable, and unworthy conduct occurs with sufficient regularity to evoke widespread criticism of the legal profession. The Legal Practice Council listed the names of 123 legal practitioners who were either struck off the roll or suspended in 2022 for unethical conduct. The majority of reported violations were variations on well-known themes. Here some legal practitioners neglected to carry out legal work in a competent and timely manner, while others practiced and appeared in court without obtaining a practice management certificate or a Fidelity Fund Certificate. An advocate accepted instructions and payments directly from clients without a brief from an attorney and later used the details of attorneys without their consent. Some reported judgments, however, describe less common or novel examples of unethical conduct, such as defeating or obstructing the course of justice, misleading the court and forgery. In one instance, a legal practitioner placed a matter on an unopposed roll to secure a default judgment by intentionally removing the notice to oppose and the answering affidavit from the court file. This same legal practitioner assaulted and intimidated members of the South African Police Service ("SAPS") and was later interdicted from intimidating, threatening, victimising and harassing members of the SAPS and State attorney's offices.

The judicial function of the African Court on Human and Peoples’ Rights in default judgments: the developments set forth in the Léon Mugesera case

This case discussion focuses on the judicial function of the African Court on Human and Peoples’ Rights (Court) in default judgments. The discussion brings to the foreground the changes introduced by the Court in its recently revised Rules of Procedure and how these changes are put in practice in its case law. The revised provision on default judgments includesthe extended power of the Court to decide on its own motion on whether to issue a default judgment and the introduction of a legal innovation in international dispute settlement, namely, a remedy for the defaulting party to set aside a default judgment. The recent default judgment in Léon Mugesera v Rwanda serves as a focal point in the analysis since it is the first instance that the revised Rules of Procedure were put into practice and since the Mugesera case illustrates the difficulties encountered by the Court in cases of non-appearance of the respondent state. The Court’s Rules of Procedure and case law are also placed within the corpus of international (human rights) law and the jurisprudence of its two regional counterparts on matters pertaining to default judgments so as to shed light on different approaches. The analysis makes two main arguments. The first concerns theprocedural requirements for rendering a judgment in default. Until the Mugesera decision, the Court was not consistent in meeting these requirements, and had been known to decide in default on its own motion without having a textual basis in the Protocol or the Rules of Procedure to do so. The recently revised Rule of Procedure grants the Court the power to decide on its own motion. Second, the analysis argues that the Mugesera decision cements an alarming trend in the case law, whereby in cases of nonappearance the Court does not satisfy itself that the applicant’s submissions are well-founded.

Evaluating the Role of Judicial Oversight in the Context of the Post-2018 Emolument Attachment Order Legal Frame

Historically, mechanisms facilitating civil debt collection and its broader discipline of civil procedure have been an unpopular legal research area, not only in South Africa, but also abroad.[1] In recent years, one civil debt collection mechanism has, however, attracted some academic attention.[2] This attention has resulted from relatively rapid legal developments to counteract widespread debtor exploitation resulting from systemic abuses.[3] The emolument attachment order (hereafter, “EAO”) mechanism, sometimes also referred to as garnishee orders,[4] functions as a civil debt collection instrument, usually following the granting of a default judgment,[5] where the debtors are judged to be legally liable to their creditor.[6] Through the application of EAOs, debtors’ property, specifically their wages, are exposed to execution, in order to satisfy the creditors’ expectations of performance. In this manner, a portion of workers’ wages are withheld from them by the debtors’ employers (the garnishees) after being legally requested or reserved by creditors. The EAO mechanism is a popular debt-collection instrument affecting the lives of potentially millions of people.[7] Creditors favour debt collection through the EAO mechanism, as it offers a relatively convenient and secure form of debt enforcement.[8]
 
 [1] De Vos 2002:236-237.
 [2] See, for example, Coetzee & Van Sittert 2018; Van der Merwe 2019.
 [3] Van der Merwe 2019:87-90.
 [4] There is a slight, but important difference between garnishee orders, a term used to describe an order that empowers the creditor to attach any debt owed to the debtor by any third party, and EAOs, which are specific forms of garnishee orders applicable to the employer-employee relationship. See Van der Merwe 2019:78.
 [5] Van der Merwe 2008:78.
 [6] The definition of EAOs is apparent from their function, which is explained in sec. 65J(1)(b) of the Magistrates’ Courts Act 32/1944.
 [7] As far as the author can ascertain, there are no statistics available on the exact number of EAOs currently in circulation. Haupt et al. 2008:85-104 experienced a similar challenge and relied on estimates to provide some indication of the extent of EAO use at the time. The author’s estimation of the number of lives affected by EAOs, including extended family members, is aligned with available data regarding the extreme scale of South African indebtedness (see, for example, Coetzee & Van Sittert 2018:110) and earlier indications of the prevalence of EAOs in circulation. See, for example, Van der Merwe 2019:80 at fn. 26, referring to an audit of a portion of the 1,75 million EAOs in existence in 2007.
 [8] South African labour laws are relatively protective of employees and EAO debtors are specifically safeguarded from employer retaliation as a result of EAO deductions. See Smit & Van Eck 2010:47, 65-66. In terms of sec. 185 of the Labour Relations Act 66/1995, every employee has the right not to be unfairly dismissed.

Understanding Medical Malpractice Lawsuits.

Understanding Medical Malpractice Lawsuits.

Mediation Role in Solving Sharia Economic Dispute as Civilization Toward Ethical Value of Islam

<p>The aim of this study is to explain the role of mediation in solving sharia economy dispute as civilization toward ethical value of Islam. That it has been practiced since Rasulullah SAW era was through many ways such as shulh, tahkim, and qadha. This study uses qualitative method and data collection is got from observation, direct interview to justice, attorney, lawyer, mediator, and the disputants. Based on the result of the study above is known that the role of mediation in solving sharia economy dispute as civilization toward ethical value of Islam is important and needs to be optimalized. According to Rasulullah SAW teaching, in fact, in a practice, there is failure of mediation in solving sharia economy dispute because the disputants feel that they are right and want to win finally by litigation way with consent or default judgment. Otherwise, mediation practice gives benefits for the disputants and based on Indonesian culture and civilization because solving dispute through mediation can be solved fast, correctly, and cheaply, thus it does not take much energy, time, and thought. In a result, it can keep privacy, beneficial for parties, and harmless with the result made by parties themselves, that is “win-win solution”. In ethical value of Islam in solving sharia economic dispute, firstly, by al-shulh (peace). Peace in islam is recommended because if there is peace among disputants, they will avoid from hostility. If it does not work, it can be passed by al-tahkim (arbitration) and if it gets stuck, Islam teaches us by al-qadha (Court Process).</p>

Longer trips to court cause evictions

Studying ∼200,000 evictions filed against ∼300,000 Philadelphians from 2005 to 2021, we focus on the role of transit to court in preventing tenants from asserting their rights. In this period, nearly 40% of tenants facing eviction were ordered to leave their residences because they did not show up to contest cases against them and received a default judgment. Controlling for a variety of potential confounds at the tenant and landlord level, we find that residents of private tenancies with longer transit travel time to the courthouse were more likely to default. A 1-h increase in estimated travel time increases the probability of default by between 3.8% and 8.6% points across different model specifications. The effect holds after adjusting for direct distance to the court, unobserved landlord characteristics, and even baseline weekend travel time. However, it is absent in public housing evictions, where timing rules are significantly laxer, and during the COVID-19 pandemic, when tenants had the opportunity to be present virtually. We estimate that had all tenants been equally able to get to the court in 10 min, there would have been 4,000 to 9,000 fewer default evictions over the sample period. We replicate this commuting effect in another dataset of over 800,000 evictions from Harris County, Texas. These results open up a new way to study the physical determinants of access to justice, illustrating that the location and accessibility of a courthouse can affect individual case outcomes. We suggest that increased use of video technology in court may reduce barriers to justice.

LEGAL QUALIFICATION OF LABOR CONTRACT AND CONTRACT OF MANDATE (SERVICE COTRACT) WHEN CHECKING LEGALITY OF DEFAULT JUDGEMENT

Freedom of labor is a constitutional human right. The state protects it by fulfilling positive and negative obligations. Due to the specifics of labor relations, the principle of subordination is one of the basic principles that apply in labor law. Accordingly, the employee is subordinate to the employer and directly obeys the rules and conditions set by him. The parties of the Contract of Mandate (Service Contract) are the mandator who gives an assignment to the mandatary and the mandatary who is obliged to perform mandated actions. It is often difficult to find the difference between the contract of the mandated employment agreement. No. AS-953-2020 decision of the Chamber of Civil Cases of the Supreme Court of Georgia, issued on April 2, 2021, regarding the above-mentioned issue sets precedent, both in the case’s procedural history and in the legal complexity and reasoning, which is undoubtedly distinguished from the previously set practice. What makes this case special is the fact that, from a procedural point of view, the case went through the second and third instances twice. In addition, a repeated default (absentee) judgment was appealed, the legal legitimacy of which is the main focus of the legal proceedings of the courts. Accordingly, this article will assess the factual circumstances related to the legal dispute and the grounds and motivation for the decision made by the relevant court. Also, special attention will be drawn to the decision made by the Supreme Court and the decision will be assessed in the context of whether the judge applied the law he was supposed to apply or the law that he was not supposed to apply and whether or not he misinterpreted the law. It also determines which method of resolving a hard case was used by the judge

ПРАВОВІ НАСЛІДКИ ПРОПУСКУ СТРОКУ ПОДАННЯ ЗАЯВИ ПРО ПЕРЕГЛЯД ЗАОЧНОГО РІШЕННЯ В ЦИВІЛЬНОМУ СУДОЧИНСТВІ

The article is devoted to the analysis of legal consequences of the defendant’s failure to submit the application for the revision of the default judgment, in particular, the ratio in the trial in absentia of the application for the revision of the default judgment without consideration as a procedural action (in accordance with art. 126 Civil Procedural Code of Ukraine), and the application for revision of the default judgment without satisfaction in case of missing the deadline of its submission (in accordance with part 3 of art. 287 of the Civil Procedural Code of Ukraine). It has been established that in law enforcement practice the established practice of leaving the application for revision of the default judgment without consideration in case of refusal in renewal of the application for revision of the default judgment has been made. The Grand Chamber of the Supreme Court, in order to ensure the unity and consistency of the judicial practice, in November 2021 dismissed this position and provided that the court is obliged to take a duly executed application for review of the default judgment, regardless of missing the deadline for its submission and to leave the application without satisfaction if there is no reason to renew such a deadline. The article argues that in the situation of submitting the application for revision of the default judgment with the omission of the term established by the Civil Procedural Code of Ukraine, to make an application for review of the default judgment for consideration and, as a result, it is wrong to refuse such an application. The best option would be for the court to decide not to leave the application for the revision of the default judgment without satisfaction (because such a decision is possible based on the results of the application for the revision of the default judgment, and if there are no grounds for renewing the missed deadline, then there were no grounds for reviewing the merits of the application for review of the default judgment), and would decide to refuse to renew the missed deadline for the submission of the application on the revision of the default judgment (with such formulation). In case of disagreement with the court’s arguments concerning refusal to renew the deadline, the defendant will be able to appeal. In this approach, it cannot be said that he loses the right to appeal the default judgment, and this will promote the principle of procedural economy.

Washington Hotline

Copyright permeates so many areas of academic librarianship. That’s one of the reasons ALA and the Policy Corps take an active role in advocating on behalf of academic library users on the Hill as new copyright legislation is developed. We encourage readers to keep an eye on this column in 2022 for updates on legislation related to copyright and intellectual property. The CASE Act The Copyright Alternative in Small-Claims Enforcement Act of 2020, also known as the CASE Act, is a new law establishing a small claims system within the U.S. Copyright Office (USCO). Through this system, rightsholders will be able to bring claims of infringement against a party and, if they are found guilty of infringement, may receive up to $30,000 in compensation for the unlawful use of their copyrighted works. Three officers, appointed by the Register of Copyrights, will sit on the Copyright Claims Board (CCB) and review claims and make determinations regarding alleged infringement. While the system is described in the law as “voluntary,” it requires those who have claims brought against them to opt out of proceedings in a timely manner or face a default judgment, with limited options for appeal.

Research on Risk Prediction Model of Internet Finance Based on Cloud Computing

With the rapid development of the Internet, the traditional Internet financial risk prediction methods can no longer meet the needs of individuals and enterprises, so the concept of cloud computing arises at the historic moment. Cloud computing has subverted the traditional financial risk prediction method and has been widely studied and applied for its distributed, dynamic and autonomous characteristics. How to efficiently and reasonably schedule the resources of cloud data center and improve the accuracy of financial risk prediction is the focus of current research. How to quantify financial risk and financial risk early warning is one of the urgent problems to be solved. Under the framework of cloud computing, this paper combines the feature extraction and data weighting to study the user’s basic attribute data and a large number of downloaded APP types. After that, linear regression with penalty is used to construct the prediction model to improve insolvency. The accuracy of customer default judgment can realize local optimization, so as to improve the prediction and control of hidden risks of customer commercial bank loans and greatly reduce the default risk of bank loans.

Unfair by Default: Arbitration's Reverse Default Judgment Problem

Unfair by Default: Arbitration's Reverse Default Judgment Problem

Intuitive Dualism and Afterlife Beliefs: A Cross-Cultural Study.

It is widely held that intuitive dualism-an implicit default mode of thought that takes minds to be separable from bodies and capable of independent existence-is a human universal. Among the findings taken to support universal intuitive dualism is a pattern of evidence in which "psychological" traits (knowledge, desires) are judged more likely to continue after death than bodily or "biological" traits (perceptual, physiological, and bodily states). Here, we present cross-cultural evidence from six study populations, including non-Western societies with diverse belief systems, that shows that while this pattern exists, the overall pattern of responses nonetheless does not support intuitive dualism in afterlife beliefs. Most responses of most participants across all cultures tested were not dualist. While our sample is in no way intended to capture the full range of human societies and afterlife beliefs, it captures a far broader range of cultures than in any prior study, and thus puts the case for afterlife beliefs as evidence for universal intuitive dualism to a strong test. Based on these findings, we suggest that while dualist thinking is a possible mode of thought enabled by evolved human psychology, such thinking does not constitute a default mode of thought. Rather, our data support what we will call intuitive materialism-the view that the underlying intuitive systems for reasoning about minds and death produce as a default judgment that mental states cease to exist with bodily death.

SHOULD CALIFORNIA'S PUBLIC POLICY ON JUDICIAL NON-JURISDICTION OVER GAMBLING DEBTS BE REVISITED? BREAKING DOWN THE KELLY AND POSTLE DECISIONS

SHOULD CALIFORNIA'S PUBLIC POLICY ON JUDICIAL NON-JURISDICTION OVER GAMBLING DEBTS BE REVISITED? BREAKING DOWN THE <i>KELLY</i> AND <i>POSTLE</i> DECISIONS

Konwalidacja nieuchylenia cywilnego wyroku zaocznego w wyroku kończącym sprawę

The Code of Civil Procedure provides for the institution of a default judgment. In the event of an effective objection from it, the matter is examined on the merits. The court issues a judgment, which upholds the default judgment in whole or in part, or repeals it and decides on the demand for the statement of claim, or the statement of claim is rejected or the proceedings are discontinued. If the claim is adjudicated, the earlier judgment should also be set aside. If not, we are dealing with a situation where two judgments on the same case remain in legal circulation. This paper presents concepts on how to remedy this error, in particular based on the current position of the Supreme Court. In the author’s opinion, the arguments of the Supreme Court cannot be defended, while the discussed subject matter is so complicated and unclear that in the current legal situation it is impossible to unequivocally determine the method of validating the failure to set aside the default judgment.

The Hysteresis Thesis: An Empirical Study of Copyright Injunctions After eBay

The Supreme Court’s 2006 decision in eBay v. MercExchange seemingly heralded a major change in not only patent law but also copyright law. The Court ruled that injunctions for patent infringement should no longer be granted automatically; instead, plaintiffs must establish the need for injunctive relief in particular and that such relief would be in the public interest. Although eBay concerned a patent claim, its reasoning relied on three copyright decisions, making its application to copyright cases compelling. Nevertheless, lower courts in some early post-eBay copyright cases rebuffed arguments that the Court’s ruling affected grants of injunctive relief. A 2012 empirical study of the first four years of post-eBay copyright cases seemed to show that those early cases were not aberrations, reporting that courts rarely cited eBay and continued to grant injunctions in a high percentage of copyright cases. Those conclusions were broadly accepted by the field. This Article tests these claims and finds statistically significant differences in the grant rate for both preliminary and permanent injunctions in copyright cases after the eBay decision. The impression of eBay lacking effect appears to be a product of hysteresis—a time lag between cause and effect, as lower courts initially delayed but eventually embraced eBay. This study reveals, moreover, that the earlier empirical study was flawed by biased sampling, most notably by including a large number of unreported cases and default judgments. This Article offers a corrective analysis and provides a more accurate understanding of the copyright injunction landscape, both pre- and post-eBay. It shows that eBay was in fact a landmark case for copyright law, both in terms of jurisprudence—it is highly cited—and real-world effect— it has a dramatic impact on case outcomes.

Judgements Without Trial in Civil Proceedings in Malaysia: A Brief Analysis on the Burden of Proof Required

Civil proceedings involve a complex procedure with various interlocutory applications before the matter is set for trial. Some of the interlocutory applications, namely applications to enter judgment in default, to strike out pleading and for summary judgment, may result in the plaintiff obtaining early judgment or disposal of the case without a full trial. Interestingly, these applications require a different burden of proof for the plaintiff to satisfy. This article seeks to explore the burden of proof necessitated in those applications in order to evaluate the likelihood of the plaintiff obtaining judgment without trial. In achieving this objective, the process of civil proceedings in Malaysia is briefly explained. This is followed by an analysis on the burden of proof required in the said applications. It is observed that although judgment in defaults or summary judgment may be entered against the defendant upon the plaintiff’s satisfaction of mere procedural requirements, it is equally ‘easy’ for the defendant to set aside or oppose such judgment or application. A conclusion can be derived that civil procedure in Malaysia allows the defendant a sufficient right or opportunity to have ‘his day in court’ by placing a low threshold for him set aside judgment in default or oppose summary judgment application. Further, it is also observed that a stringent burden of proof is needed for the plaintiff to be able to strike out the defendant’s defence and enter judgment on his behalf. This is, arguably crucial so as to cloth the defendant with the right to a fair trial which includes the right to be heard and present their cases sufficiently.

Time limits and default judgments in European cross-border civil litigation: minimum standards?

The article focuses on the impact of time limits on the free circulation of judgments rendered in absentia in civil and commercial matters within the EU. Starting from the Lebek judgment, I will examine the following issues: first, if an application for relief from the involuntary expiry of time limits may justify the denial of recognition and enforcement of judgments under the regime of the Brus­sels I bis Regulation; second, if the defendant applying for relief may choose between the time limit laid down in the service Regulation or that provided for in national law. Finally, I will address the question of the possible standardisation of the deadline for the first reaction on the part of the defendant.

The Microfoundations of Bureaucratic Outcomes: Causes and Consequences of Interpretive Disjuncture in Eviction Cases

AbstractEviction transforms landlords into plaintiffs and tenants into defendants, reframing expansive histories of housing trouble into legal problems. Researchers note high rates of default judgments against tenants, a majority of tenants without attorneys, and a disconnect between the ways that landlords and tenants understand cases. This study reveals the micro-foundations of case outcomes by explaining causes and consequences of “interpretive disjuncture.” How does interpretive disjuncture shape case trajectories and outcomes as housing trouble transforms into an eviction lawsuit? Drawing on one year of ethnographic fieldwork in tenants’ rights clinics in Los Angeles County, I follow tenants’ cases back to their roots and explain how both everyday and institutional challenges shape tenants’ interpretive processes as they navigate eviction.