Jiyana and Another v Absa Bank and Others (15952/2016) [2017] ZAWCHC 69 (29 June 2017)

Jiyana and Another v Absa Bank and Others (15952/2016) [2017] ZAWCHC 69 (29 June 2017)

The court found that the applicants' cause of action and factual basis for the present application were identical to those litigated in previous rescission and appeal proceedings. The applicants had raised the issue of non-compliance with section 129(1) of the National Credit Act in earlier proceedings, and the doctrine of res judicata, including the Henderson principle, precluded them from re-opening the matter on reformulated grounds. The court held that there were no exceptional circumstances warranting relaxation of the doctrine, as the applicants had legal representation, had acquiesced to the judgment by signing a deed of settlement, and the property had already been sold and...

Citation
[2017] ZAWCHC 69
Parties
Applicant: Thembinkosi Khulekani Rudolf Jiyana; Applicant: Nomvo Jiyana; Respondent: Absa Bank; Respondent: Cape Town North Sheriff; Respondent: Gary Nigel Hardisty; Respondent: Jennifer Janine Dorothy Hardisty; Respondent: Registrar of Deeds, Western Cape
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 June 2017
Case Number
15952/2016
Procedural Posture
Review Application / Application for Declaratory Relief and Setting Aside of Default Judgment
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
Meer
Legal Topics
National Credit Act, Debt Enforcement, Res Judicata, Mortgage Bond, Constitutional Property Rights
Civil Procedure Banking and Finance National Credit Act Debt Enforcement Res Judicata Mortgage Bond Constitutional Property Rights

Case Brief

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Parties

Thembinkosi Khulekani Rudolf Jiyana

Applicant

Nomvo Jiyana

Applicant

Absa Bank

Respondent

Cape Town North Sheriff

Respondent

Gary Nigel Hardisty

Respondent

Jennifer Janine Dorothy Hardisty

Respondent

Registrar of Deeds, Western Cape

Respondent

Procedural Posture

Review Application / Application for Declaratory Relief and Setting Aside of Default Judgment

Legal Issues

  1. 1 Whether the default judgment granted on 15 April 2014 and subsequent execution against the applicants' property should be set aside due to non-compliance with sections 129(1), 130(1), and 130(3) of the National Credit Act.
  2. 2 Whether the sale and transfer of the property to third parties is legally valid.
  3. 3 Whether the doctrine of res judicata precludes the applicants from bringing the present application.

Ratio Decidendi

The court found that the applicants' cause of action and factual basis for the present application were identical to those litigated in previous rescission and appeal proceedings. The applicants had raised the issue of non-compliance with section 129(1) of the National Credit Act in earlier proceedings, and the doctrine of res judicata, including the Henderson principle, precluded them from re-opening the matter on reformulated grounds. The court held that there were no exceptional circumstances warranting relaxation of the doctrine, as the applicants had legal representation, had acquiesced to the judgment by signing a deed of settlement, and the property had already been sold and...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs, such costs to include the costs of two counsel.