Rescission and Variation of Jdgm
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)