Differences Between Summary and Default Judgements

Issue: How does a summary judgement differ from a default judgment?

Here’s a question from Michaela:

What’s the difference between a summary judgement and a default judgement? I always though they were the same thing.

From The Legal Desk

It’s easy to confuse summary judgments and default judgments because some people, even in the legal sphere, use the terms synonymously. While they can be described as “cousins” or two sides of the same coin, they are not the same. To understand where the two concepts diverge, let’s take a look at the legals…

In civil procedure, both summary judgement and default judgement are categorised as “shortcut judgements.” This is because they allow a plaintiff to obtain a final order without the necessity of a full-blown trial. While they share the goal of legal efficiency, they are distinct in their procedural triggers, the nature of the defendant’s conduct, and the specific types of claims they may address.

Default judgement is primarily a remedy for procedural inaction. It is granted by a court or an administrative official when a party fails to follow the prescribed steps of the litigation process within the required time limits, known as the dies induciae.

The most common ground for default judgement is when a defendant, having been served with a summons, fails to deliver a notice of intention to defend. It may also be sought if a defendant enters an appearance but then fails to file a plea within the time allowed after being served with a formal “notice of bar”. Furthermore, default judgement can be granted if a party fails to appear at the trial itself or if a defendant files a defective notice of intention to defend and fails to rectify it. Essentially, default judgement is a penalty for being “in default” of the rules.

In contrast, summary judgement is designed for cases where the defendant has actually entered an appearance to defend, but the plaintiff believes that this defence is a “sham” or “bogus” attempt to delay the recovery of what is owed. Unlike default judgement, which handles a defendant’s silence, summary judgement actively tests the bona fides of a defendant’s decision to contest the matter.

Because it allows a final judgement to be granted against a defendant who wishes to defend, it is considered an extraordinary and stringent remedy that circumvents the audi alteram partem principle (the right to be heard). Therefore, the court will only grant it if the plaintiff has an unimpeachable case and the defendant cannot show a bona fide defence.

A major difference lies in the types of claims permissible for each procedure. Summary judgement is strictly limited to four categories of claims: 1. those based on a liquid document (like a cheque or mortgage bond), 2. claims for a liquidated amount of money, 3. claims for the delivery of specified movable property, and 4. claims for ejectment. Conversely, default judgement can be sought for any type of claim, whether liquidated or unliquidated (such as delictual damages).

The procedural mechanics also differ significantly. An application for summary judgement must be brought within 15 court days after the defendant delivers their notice of intention to defend. It is a formal application in the motion court and must be supported by a plaintiff’s affidavit verifying the cause of action and stating the opinion that the defendant has no real defence. The defendant then has the opportunity to oppose the application by either giving security to the court for the claim or by filing an opposing affidavit that discloses the nature and grounds of their defence with sufficient particularity.

Default judgement for liquidated claims is often a more administrative process. In the High Court, the registrar is authorised to grant default judgement in chambers for debts or liquidated demands without the plaintiff needing to appear. In the Magistrates’ Courts, the clerk of the court performs a similar administrative role for liquid claims. However, if a default judgement involves an unliquidated claim (such as damages), it must be referred to a judge or magistrate in court, where the plaintiff may be required to lead oral or affidavit evidence to prove the quantum of the loss.

There is also a distinction regarding judicial oversight in cases involving a person’s home. Recent Constitutional Court rulings have established that even in default judgement situations, a registrar or clerk cannot declare a primary residence executable. Such matters must be referred to a court for judicial oversight to protect the constitutional right of access to housing.

Finally, the remedies available to a defendant after the fact differ. A party who has had a default judgement granted against them usually applies for rescission of that judgement. To succeed, they generally must show “good cause,” which includes providing a reasonable explanation for their default and establishing a bona fide defence. In the case of summary judgement, an order granting it is a final judgement and is therefore appealable. However, an order refusing summary judgement (granting leave to defend) is generally not appealable because it is not final in effect.