Jiyana and Another v Absa Bank Limited and Others (1424/2018) [2020] ZASCA 12 (19 March 2020)

Jiyana and Another v Absa Bank Limited and Others (1424/2018) [2020] ZASCA 12 (19 March 2020)

The Supreme Court of Appeal held that the appellants were perempted from challenging the default judgment by virtue of the settlement agreement signed on 27 August 2015, in which they expressly acknowledged the validity of the judgment and accepted liability. This conduct amounted to unequivocal acquiescence, barring further attack on the judgment. Additionally, the court found that the issues raised in the application for declaratory relief were res judicata, as they had already been adjudicated in previous proceedings, including the rescission application and subsequent appeals up to the Constitutional Court. The relief sought in the current proceedings was essentially the same as...

Citation
[2020] ZASCA 12
Parties
Appellant: Thembinkosi Khulekani Rudolf Jiyana; Appellant: Nomvo Jiyana; Respondent: Absa Bank Limited; Respondent: Cape Town North Sheriff; Respondent: Gary Nigel Hardisty; Respondent: Jennifer Jeanine Dorothy Hardisty; Respondent: Registrar of Deeds, Western Cape
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
19 March 2020
Case Number
1424/2018
Procedural Posture
Civil Appeal / Appeal From the Western Cape Division of the High Court, Cape Town
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Petse, Wallis, Makgoka, Schippers, Mbatha
Legal Topics
Res Judicata, Peremption, National Credit Act, Default Judgment, Mortgage Bond Enforcement
Civil Procedure Banking and Finance Res Judicata Peremption National Credit Act Default Judgment Mortgage Bond Enforcement

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 15 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Thembinkosi Khulekani Rudolf Jiyana

Appellant

Nomvo Jiyana

Appellant

Absa Bank Limited

Respondent

Cape Town North Sheriff

Respondent

Gary Nigel Hardisty

Respondent

Jennifer Jeanine Dorothy Hardisty

Respondent

Registrar of Deeds, Western Cape

Respondent

Procedural Posture

Civil Appeal / Appeal From the Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the appellants are perempted from challenging the validity of the default judgment after signing a settlement agreement acknowledging its validity.
  2. 2 Whether the doctrine of res judicata applies to bar the appellants from seeking declaratory relief to set aside the default judgment.
  3. 3 Whether the default judgment was a nullity due to alleged non-compliance with the National Credit Act and constitutional rights.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants were perempted from challenging the default judgment by virtue of the settlement agreement signed on 27 August 2015, in which they expressly acknowledged the validity of the judgment and accepted liability. This conduct amounted to unequivocal acquiescence, barring further attack on the judgment. Additionally, the court found that the issues raised in the application for declaratory relief were res judicata, as they had already been adjudicated in previous proceedings, including the rescission application and subsequent appeals up to the Constitutional Court. The relief sought in the current proceedings was essentially the same as...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including costs of two counsel.