Swart v Absa Bank Ltd

• Jurisdiction: South Africa
• Judge: Veldhuizen J
• Judgment Date: 09 December 2008
• Citation: 2009 (5) SA 219 (C)
• Docket Number: 11975/2008
• Hearing Date: 05 September 2008
• Counsel: M Muller for the applicant. No appearance for the respondent.
• Court: Cape Provincial Division

Veldhuizen J:

[1] This was an unopposed application for the rescission of a judgment granted by default on 18 September 2006 against the applicant in favour I of the respondent. The application was refused. The applicant then requested reasons for the refusal. These are my reasons.

[2] The applicant, a businessman, granted a mortgage bond in favour of the respondent. The applicant failed to make payments due to the respondent in terms of the mortgage bond and the respondent thereafter J obtained default judgment against the applicant.

Veldhuizen J

[3] It is common cause that the applicant, subsequent to judgment being A obtained, settled the debt and obtained the respondent's consent to rescission of the judgment. The ground on which the applicant based the application for rescission is stated in his affidavit as follows:

'I would like to clear my credit records so as to enable myself to secure a mortgage bond to buy a house.' B

[4] It was held in De Wet and Others v Western Bank Ltd: [1]

'A Court obviously has inherent power to control the procedure and proceedings in its Court. This is done to facilitate the work of the Courts and enable litigants to resolve their differences in as speedy and inexpensive a manner as possible. This has been recognised in many C decided cases which are collected by the learned authors of Herbstein and Van Winsen, The Civil Practice of the Superior Courts of South Africa, 2nd ed., pp. 20 - 21. This, in my view, does not include the right to interfere with the principle of the finality of judgments other than in circumstances specifically provided for in the Rules or at common-law. Such a power is not a necessary concomitant to the inherent power to D control the procedure and proceedings in a Court. I am of the opinion, as set out above, that the powers in the Rules of Court, in this regard, are specific powers vested in the Court over and above the powers to assist in this connection in the common-law.'

[5] The requirements for the rescission of a judgment under the common law were referred to in Swadif (Pty) Ltd v Dyke NO: [2] E

'However, I do not consider it necessary to enter upon a discussion of the grounds upon which the rescission of a judgment may be sought at common-law because, whatever the grounds may be, it is abundantly clear that at common-law any cause of action which is relied on as a ground for setting aside a final judgment, must have existed...