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Civil procedure — default judgment — rescission of — common-law principles governing — nature of onus on applicant.
Default judgment had been entered against the applicant in favour of the respondent because of the former's non-appearance at court on the date set down for trial. He sought rescission of the judgment, alleging that his legal practitioner (who had, before the trial date, renounced his agency) had misinformed him of the date set down. It was common cause at the application that the matter fell to be determined under the common-law principles governing restitutio in integrum.
Held, that an allegation by a litigant that he was unaware of a pending trial would justify restitutio only if he could establish "a supremely just cause of ignorance free from all blame whatsoever" (Voet 2. 4. 14). The first hurdle is to show that prima facie he was blameless. In the present case, his allegations, if true, would establish a "supremely just cause of his ignorance". The second hurdle is to establish, on the balance of probabilities, the truth of his allegations.
Held, further, that the applicant had failed to show, on the balance of probability, that he was genuinely unaware of the date of hearing becauseof incorrect information supplied by his legal practitioners.
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