MAJIEDT J damages for breach of an implied contractual term that the registration of a bond in respect of the purchase of property by a share block company would be carried out with reasonable professional knowledge, care and skill; alternatively, for breach of duty of care by the applicants for having registered the bond in contravention of the provisions of section 14(1) of the Share Blocks Control Act.67 The ground on which the applicants sought to have the action of the bank set aside was that the bank had already obtained judgment by default on the invalid bond and therefore the action by the bank against the applicants was an abuse of the process of court and it was vexatious for the bank to persist with that action. [66] In its reasoning, the Court held that it had an inherent power to strike out claims which were vexatious which, in this context, meant frivolous, improper, instituted without proper ground, to serve solely as an annoyance to the defendant. The Court went on to find that while an action that was unsustainable was vexatious, that had to appear as a certainty and not merely on a preponderance of probabilities. The Court dismissed the application on the basis that in relying on the default judgment obtained by the bank rather than seeking to prove facts showing that the bond was valid, the applicants had failed to show that the action against them was clearly unsustainable on the basis that the bond validly secured the loan. [67] The applicants rely on this judgment only to argue that the inherent common law power to strike out claims which constitute an abuse of process must be exercised with great caution and only in a clear case. There can hardly be any quarrel with that observation.68 But it bears noting that the Court in Bissett appears to favour a merits assessment within an abuse of process enquiry by stating that an action which is unsustainable is vexatious. However, the judgment also makes reference to proceedings instituted “solely as an annoyance to the defendant”.69 This appears to include a consideration of the motive or purpose behind the institution of the claim. 67 59 of 1980. 68 The same was said in Maphanga above n 15 at para 26. 69 Bissett above n 66 at 604E. 30