Swart v Absa Bank Ltd (11975/08) [2008] ZAWCHC 114; 2009 (5) SA 219 (C) (9 December 2008)

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[2008] ZAWCHC 114
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Swart v Absa Bank Ltd (11975/08) [2008] ZAWCHC 114; 2009 (5) SA 219 (C) (9 December 2008)

IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
“REPORTABLE”
Case No. 11975/08
In
the matter between:
GAWIE
SWART
Applicant
and
ABSA
BANK LIMITED
Respondent
Coram :
Veldhuizen,
J
Judgment
by :
Veldhuizen,
J
For
the
Applicant :
Adv.
M. Muller
Instructed
by : De Witt de Villiers
(Ref. Ms. M.H. Steyn)
Tel. No. 021-949 1830
1 Poort Street
BRACKENFELL
7560
For
the Respondent :
Instructed
by :
Date(s) of Hearing :
05
September 2008
Judgment delivered on : 09 December
2008
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
Case No. 11975/08
In the matter between:
GAWIE SWART
Applicant
and
ABSA BANK LIMITED
Respondent
JUDGMENT DELIVERED ON 9 DECEMBER 2008
VELDHUIZEN, J:
This was an
unopposed
application for the rescission of a judgment granted by default on
18 September 2006 against the applicant in favour
of the respondent.
The application was refused. The applicant then requested reasons
for the refusal. These are my reasons.
The a
pplicant, 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 obtained default
judgment against the applicant.
It is common cause that
the
applicant subsequent to judgment being 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.’
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 decided cases which are
collected by the learned authors of Herbstein and Van Winsen,
The
Civil Practice of the Superior Courts of South Africa
,
2
nd
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 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.’
The requirements for the rescission of a judgment
under the common law was referred to in
Swadif
(Pty) Ltd v Dyke NO
2
:
‘
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 at the date of the final judgment. There must be some
causal
connection between the circumstances which give rise to the claim for
rescission and the judgment . . .’
In
Weare v Absa Ltd
3
it was held:
‘
In my opinion, a contention that there is sufficient
cause for rescission of a lawfully granted judgment where the
judgment debt
has been discharged, to the formed judgment debtor in
relation to his ‘business activities’, is unsound.’
In the present matter the reason put forward by the applicant was
that it would be just and equitable to rescind the judgment because

it is prejudicial to him. I do not agree. I respectfully agree with
the reasoning in the above mentioned decisions that the fact
that the
judgment is prejudicial to him does not afford a cause for the
rescission of the judgment. It is also clear that the
cause relied
upon by the applicant for rescission did not exist at the time that
the final judgment was handed down. It is also
clear that no causal
connection exists between the circumstances that gave rise to the
application for rescission and the judgment.
The applicant’s need
to obtain credit has nothing to do with his failure in paying the
debt in the first place and which gave
rise to the judgment.
Rule 42 provides for the variation and rescission of orders.
Sub-rule 1 sets out the grounds on which an application can be
made
namely, where an order or judgment was erroneously sought or granted
in the absence of any affected party; where there is
an ambiguity or
a patent error or omission to the extent of such ambiguity, error or
omission or where an order or judgment was
granted as a result of a
mistake common to the parties. It is clear from the papers that
Rule 42 does not assist the applicant
as there is no ambiguity,
error or mistake in the judgment and it was also not erroneously
granted.
Rule 31(2)(b) reads as follows:
‘
A defendant
may
within 20 days after he or she has knowledge of such judgment apply
to court upon notice to the plaintiff to set aside such
judgment and
the court may, upon good cause shown, set aside the default judgment
on such terms as to it seems meet.’
I was of the view that the applicant’s
application did not comply with the requirements in terms of rule
31(2). I am in agreement
with the judgment in
Saphula
v Nedcor Bank Ltd
4
where the practice of applying for
rescission of judgments after the debt has been settled was
discussed. Similar to the facts
in the present matter, the Applicant
sought rescission of a judgment on the basis that it had the effect
that he was unable to
raise credit for his business. The court said:
‘
What they are seeking is that
courts participate in falsifying a true perspective of the past. To
them the only way to say that
a judgment should no longer weigh (or
weigh too much) against creditworthiness is to require court records
to create the false
impression that the person never had any adverse
default. For that purpose it is sought to prod courts into saying
that the judgment
was wrong and a defence is available although the
judgment was in fact correctly granted.
5
The same issue was at the centre of the judgment
of the Cape Provincial Division in
Theodore
Damon
and
Carla
Damon v Nedcor Bank Limited
6
,
delivered on 30 October 2006. Applicants applied for rescission of a
default judgment
‘so that
the credit records could be amended’
.
The judge discussed the new
National Credit Act 34 of 2005
and
concluded that, because the remedies in the Act with regards to debt
re-arrangements were not available to the applicants at
the time,
they were entitled to a rescission of the default judgment. The
court in the Damon case relied on the judgment of
RFS
Catering Supplies v Bernard Bigara Enterprises CC
7
.
Both these decisions considered the concepts of
‘justice
and fairness’
broad enough to
capture a number of circumstances that are not covered by the common
law or the rules. In both of these cases
rescission was granted. I
respectfully disagree with these decisions. As mentioned above the
inherent jurisdiction of the court
does not include the right to
interfere with the principle of finality of judgments, other than in
circumstances specifically provided
for in the rules or at common
law. This is also the view I subscribe to. (See especially
Lazarus
and Another v Nedcor Bank Ltd, Lazarus and Another v Absa Bank Ltd
1999(2) SA 782 (WLD).
For these
reasons I
came to the conclusion that the Applicant did not comply with the
requirements in terms of the common law nor the additional

requirements provided for in terms of
rule 31(2)(b)
and
rule 42
and
refused the application for rescission of the judgment.
________________
A.H. VELDHUIZEN
1
1977(4) SA 770(T) at 780H – 781A
2
1978(1) SA 928(A) at 939D-E
3
1997(2) SA 212(D + CLD) at 216E
4
Saphula v Nedcor Bank Ltd, 1999(2) SA 76 (W)
5
P78H-I
6
Case No. 3970/04
7
2002(1) SA 896(C)