Jiyana and Another v Hardisty and Others (22862/2023) [2024] ZAWCHC 4 (19 January 2024)

Jiyana and Another v Hardisty and Others (22862/2023) [2024] ZAWCHC 4 (19 January 2024)

The court found that the applicants, having been declared vexatious litigants, were required to obtain leave of court before instituting any proceedings, as mandated by the Vexatious Proceedings Act. Their failure to do so constituted a serious violation of the court's order and an abuse of process. The explanation for not seeking leave was deemed unconvincing and insufficient. On the merits, the court held that the applicants' challenge to the consent order and subsequent orders was without foundation, as these issues had already been litigated and dismissed by competent courts, including the Supreme Court of Appeal and Constitutional Court. The applicants had abided by the consent order...

Citation
[2024] ZAWCHC 4
Parties
Applicant: Thembinkosi Rudolf Jiyana; Applicant: Nomvo Jiyana; Respondent: Gary Nigel Hardisty; Respondent: Jennifer Janine Hardisty; Respondent: Cape Town North Sheriff
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
19 January 2024
Case Number
22862/2023
Procedural Posture
Urgent Application / Application for Interim Interdict and Possession Pending Proceedings Against Absa Bank
Outcome
Application dismissed with costs.
Judges
Lekhuleni
Legal Topics
Vexatious Litigant, Urgent Interdict, Eviction Order, Consent Order, National Credit Act, Abuse of Process
Civil Procedure Land and Property Vexatious Litigant Urgent Interdict Eviction Order Consent Order National Credit Act Abuse of Process

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 9 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Thembinkosi Rudolf Jiyana

Applicant

Nomvo Jiyana

Applicant

Gary Nigel Hardisty

Respondent

Jennifer Janine Hardisty

Respondent

Cape Town North Sheriff

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict and Possession Pending Proceedings Against Absa Bank

Legal Issues

  1. 1 Whether the applicants, declared vexatious litigants, could institute proceedings without leave of court.
  2. 2 Whether the consent order granted in 2008 was unlawful for allegedly conflicting with section 129(3) of the National Credit Act.
  3. 3 Whether the subsequent orders, including the declaration of executability and eviction, were nullities due to alleged unlawfulness of the consent order.

Ratio Decidendi

The court found that the applicants, having been declared vexatious litigants, were required to obtain leave of court before instituting any proceedings, as mandated by the Vexatious Proceedings Act. Their failure to do so constituted a serious violation of the court's order and an abuse of process. The explanation for not seeking leave was deemed unconvincing and insufficient. On the merits, the court held that the applicants' challenge to the consent order and subsequent orders was without foundation, as these issues had already been litigated and dismissed by competent courts, including the Supreme Court of Appeal and Constitutional Court. The applicants had abided by the consent order...

Court Disposition

Application dismissed with costs.

Orders

  • The applicants’ application is hereby dismissed.
  • The applicants are ordered to pay the costs of this application including the costs of Counsel.