IN THE HIGH COURT OF SOUTH AFRICA
 (WESTERN CAPE HIGH COURT)

REPORTABLE 
CASE NO. 9817/2008

In the matter between:

CAREL HENDRIK VENTER						APPLICANT

And

ABSA BANK LIMITED 						FIRST RESPONDENT
BERTIE ENGEL 							 SECOND RESPONDENT
IAN CRAFFORD							 THIRD RESPONDENT
THE SHERIFF OF THE HIGH COURT					 FOURTH RESPONDENT
THE REGISTRAR OF DEEDS (CAPE TOWN)				FIFTH RESPONDENT

Coram :			DLODLO, J
Judgment by:		DLODLO, J

For the Applicant:		ADV. C. MAREE
Instructed by:		Smith Kruger Attorneys
32 Wellingotn Road
DURBANVILLE
DOCEX 6
DURBANVILLE
(REF. JP VAN NIEKERK)
TEL. NO. (021) 976 1304

Instructed:		Sandenberg Nel & Haggard
Golden Isle
281 Durban Road
BELLVILLE
(REF. L Sandenberg)
TEL. NO. (021) 919 9570

Date(s) of Hearing;		9 SEPTEMBER 2011
Judgment delivered on:	15 SEPTEMBER 2011

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT)

In the matter between:

And

JUDGMENT DELIVERED ON THURSDAY, 15 SEPTEMBER 2011

DLODLO, J

[27] Similarly, in a case where a plaintiff is procedurally entitled to judgment in the absence of the defendant the judgment if granted cannot be said to have been granted erroneously in the light of a subsequently disclosed defence. A Court which grants a judgment by default like the judgments we are presently concerned with, does not grant the judgment on the basis that the defendant does not have a defence: it grants the judgment on the basis that the defendant has been notified of the plaintiff's claim as required by the Rules, that the defendant, not having given notice of an intention to defend, is not defending the matter and that the plaintiff is in terms of the rules entitled to the order sought. The existence or non-existence of a defence on the merits is an irrelevant consideration and, if subsequently disclosed, cannot transform a validly obtained judgment into an erroneous judgment."
In Mr Vivier's submission rule 42 (1) has no application in the instant matter. I fully agree. The default judgment can only be rescinded in terms of Rule 31 (2) (b) of the Uniform rules of Court, or under the common law. I proceed to briefly consider the defences advanced on behalf of the Applicant.

ABANDONED PROCEEDINGS AND OVER CHARGING OF INTEREST

PAYMENT ARRANGEMENTS
[5] As regards rescission of judgment based on the arrangement to make payments, the reading of the papers reveals that at least since 25 September 2008, the Applicant acquiesced in the judgment and took no steps up until the present proceedings were launched to have the judgment rescinded. Papers show abundantly that during this period, the Applicant clearly understood or must be taken to have understood and appreciated (without objection) that Absa would proceed and attach his property, in the event of him being in default in terms of the alleged payment arrangement. He defaulted even on the so called payment arrangements.

[6] The following scenario represents what one can describe as pertinent and undisputed background fact in this regard:

September 2008, the Sheriff served the warrant of execution on the Applicant personally.

[8] Accordingly, on 14 August 2009 Absa's attorneys informed the Applicant that they had received instructions to proceed with the sale in execution. The sale in execution of the Applicant's property was scheduled to take place on 1 April 2011. However, this sale was cancelled when Appolis Attorneys (who then represented the Applicant) informed Absa that they had been instructed by the Applicant to bring an application for the surrender of his estate. (They did not attack the validity of the default judgment). The Applicant did not proceed with this application. Consequently, the sale in execution was re-scheduled for 27 July 2011. The notice of sale in execution, which contained all the relevant information with regard to the sale in execution, was served upon the Applicant personally during the last week of June 2011. The above factual matrix makes it absolutely clear that the Applicant had full knowledge of the fact that his property would be sold in execution in the event of the Applicant not complying with the arrangements he had made with Absa in regard to the payment of the arrear amount on his mortgage loan. He clearly had resigned himself to this inevitable consequence of his failure to pay the arrears. There is clear merit in the submission made on behalf of Absa namely that the Applicant had clearly acquiesced in the judgment and the execution thereof in the event of the arrear amount in respect of his mortgage debt not being paid timeously.

[9] The Applicant alleges in his Replying Affidavit that although, by 25 September 2008, he had full knowledge of the fact that the default judgment had been granted, there was no reason at that stage to have it rescinded in view thereof that his payments during the period of July to November 2008, had extinguished the arrear amount. In Mr Vivier's submission this is an incorrect and disingenuous statement made by the Applicant. Maybe one must recap in order that the fallacy in this allegation is properly put to rest. At that particular stage, the monthly instalments amounted to Rl3 281.00. On the Applicant's own version that he was in arrears with an amount of only R85 000.00, and taking into account the monthly instalment of R13 281.00, the Applicant had to pay an amount of at least R151 405.00 in order to have extinguished the amount of the arrear payments. However, during this period the Applicant only paid an amount of R138 000.00 (this is evident from Annexure "CV8"). Importantly, it is further apparent from the Applicant's own correspondence dated 3 November 2008 (Annexure "MH3") and 24 February 2009 (Annexure "MH4") respectively that, at that stage, the Applicant knew full well that the mortgage bond account was still in arrears. Interestingly on 3 November 2008 the Applicant was informed by Absa as follows:

"Wilful default amounting to acquiescence would, however, normally bar success, and in this connection it is to be noted that "wilful" merely means "deliberate". See Neuman (PVT) Ltd v Marks, 1960 (2) SA 170 (S.R.) at p. 173."

'As I shall try to explain in due course, the common law before the introduction of Rules to regulate the practice of Superior Courts in South Africa is the proper context for the interpretation of the Rule. The guiding principle of the common-law is certainty of judgments. Once judgment is given in a matter it is final It may not thereafter be altered by the Judge who delivered it. He becomes functus officio and may not ordinarily vary or rescind his own judgment (Firestone SA (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306F-G). That is the function of a Court of appeal. There are exceptions. After evidence is led and the merits of the dispute have been determined, rescission is permissible only in the limited case of a judgment obtained by fraud or, exceptionally, Justus error. Secondly, rescission of a judgment taken by default may be ordered where the party in default can show sufficient cause.'

ORDER

In the circumstances I make the following order: