rescission and variation of jdgm

courts jdgm becomes final and unalterable under c-l when jdgm is pronounced by judicial officer

functus officio

BUT jdgm might not reflect intentions of ptys/j.o

{absence-ambiguous-patent error-common mistake}

request that jdgm be varied ito certain statutory provisions/set aside ito c-l

magistrate's courtsuperior courts

STATUTORY RECISSION ONLYCOMMON LAW{set aside}RULE 42{varied}

{s36}

court may on appl by any person affected thereby/in 1.FRAUD-in order to est locus standi applicant needs to show

cases falling under (c) suo motu →-committed by one of ptyshe has an interest in subject-matter of jdgm which is

1.r/v any jdgm granted by it in absence of -must be shown that successful litigant was pty to fraudsufficiently direct to entitle him to have intervened in

person vs whom it was grantedSwart v Wessels:original litigation iro which jdgm was given

2.r/v any jdgm iro which was void ab origine1.evidence was in fact incorrectin addition to any powers crt may have mero motu/upon

or obtained by fraud/mistake common to ptys2.was given fraudulently&with intent to misleadapplication of any pty affected, rescind/vary →

3.correct patent errors in jdgm iro which no 3.diverged to such an extent that from true faccts that1.order/jdgm erroneously sought/granted in absence of

appeal is pendingcrt would, had facts been placed b4 it, given a dif jdgmany pty affected thereby

4.r/v any jdgm iro which no appeal liesfrom that which it gave based on incorrect evidence2.order/jdgm in which there is ambiguity/patent error

(jdgm which doesn't have the effect of final jdgm)2.NEW DOCUMENTS/omission, only to the extent of such a/e/o

5.if pl in whose favour default jdgm was granted -come to light3.order/jdgm granted as result of mistake common

agrees in writing that jdgm be r/v court must-which, had they been avail at trial, would have entitled>make appli upon notice to all affected by any variation

on appl by any person affected by itthe pty claiming relief to jdgm in his favour>crt won't make order r/v unless satisfied that all ptys

-decrees/orders/rule = jdgm-jdgm can be set asidewhose interest may be affects have notice of order

-jdgm may be granted:{will discovered-doc not produced due to fraud-not

>failure to file appearance to defendproduced, but not fault of pty claiming relief}

>filing of consent to jdgm3.ERROR

>failure to plead-nonfraudulent misrepresentation inducing iustus error

>noncompl with crt order regarding complianceon part of crt is NOT a ground for setting aside

with rule of crt4.IRREGULARITIES IN PROCEDURE

>non-appearance at trial&withdrawal-jdgm was obtained in their absence and he wasn't in

crt owing to improper service/lack of service

De Allende v Baraldi t/a Embassy Drive

Medical Centre: held if practitioner represents

a person who is a pty to a litigation, that person

(natural/artificial) even if they are not physically

present in crt, isn't 'absent' (crt not authorised

to r/v jdgm ito 36(a))

-where r/v from which no appeal lies is applied,

and appl is dismissed, jdgm becomes final →

appealable

-appl must have been rejected on merits, not as

result of procedural fault

-not dismissed, rather struck off roll

-successful application for r/v doesn't acquire

status of final jdgm and therefore IS NOT appealable

APPLICATION PROCEDURE ITO ACTION PROCEDUREAPPLICATION PROCEDURE

RULE 49 FOLLOWED

-provisions of r55 to be complied with Seme v Incorporated Law Society-r42 specifically says this must be followed

rule 49:-application upon notice to all ptys whose

1.pty to proceedings in which d.jdgm was given/interests may be affected

person affected by jdgm-crt won't make any order r/v any order/jdgm unless

>within 20 dayssatisfied that all ptys who interests may be affected

>after obtaining knowledge of jdgmhave notice of the order proposed

>serve&file application

>on notice to all ptys

>for r/v of jdgm

>crt may on good cause shown/if satisfied

that there is good reason, r/v on terms it deems

(accepted to mean that applicant must provide a

reasonable explanation for his default/that he has

a b.f defence and that application is made b.f.)

2.its presumed that applicant had knowledge of

d.jdgm 10 days after it was granted unless

he proves otherwise

>supporting affidavit to furnish reason for failure

to file appearance with grounds set out

>before appl may be set down, applicant must

furnish security to the respondent for the amount

of costs awarded vs them ito of the jdgm & R200

to cover cost of such appl

>36(b) → application can be made within 1yr of

becoming aware of voidness/fraud/mistake

>in cases in 36(c): crt can act mero motu

(correct errors)