THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 1424/2018
In the matter between:

THEMBINKOSI KHULEKANI RUDOLF JIYANA                                FIRST APPELLANT
NOMVO JIYANA

SECOND APPELLANT
and
ABSA BANK LIMITED

FIRST RESPONDENT
CAPE TOWN NORTH SHERIFF

SECOND RESPONDENT
GARY NIGEL HARDISTY

THIRD RESPONDENT
JENNIFER JEANINE DOROTHY HARDISTY                       FOURTH RESPONDENT
REGISTRAR OF DEEDS, WESTERN CAPE
FIFTH RESPONDENT

Neutral citation:
Jiyana and Another v Absa Bank Limited and Others (1424/2018)
[2020] ZASCA 12 (19 March 2020)
Coram:
PETSE DP, WALLIS, MAKGOKA, SCHIPPERS and MBATHA
JJA
Heard:

18 February 2020
Delivered:
19 March 2020
Summary: Peremption – effect of settlement agreement – appellants signed a
settlement acknowledging validity of a judgment which they previously sought to set
aside – appellants perempted from further challenge to validity of judgment.
Res judicata – appellants’ rescission application against a default judgment dismissed
– appellants applying again to declare the default judgment a nullity – latter application
effectively sought same relief as in the rescission application – defence of res judicata
correctly upheld.

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ORDER
___________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (Boqwana J,
Allie and Samela JJ concurring sitting as a court of appeal):
The appeal is dismissed with costs, including costs of two counsel.
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JUDGMENT
___________________________________________________________________
Makgoka JA (Petse DP, Wallis, Schippers and Mbatha JJA concurring)
[1] This appeal, with special leave of this court, is against the judgment of the full
court of the Western Cape Division of the High Court (the high court). That court
dismissed the appellants’ appeal against a judgment of a single judge, who had
dismissed the appellants’ application for certain declaratory orders to set aside a
default judgment granted against them, and the consequences of execution of that
judgment. It should be mentioned at this stage that none of the second to fifth
respondents took part in this appeal.
[2] The appeal has its genesis in a default judgment granted by the high court on
15 April 2014 against the appellants, Mr and Mrs Jiyana, in favour of the first
respondent, Absa Bank Ltd (Absa). The appellants, husband and wife, had concluded
a loan agreement with Absa in January 2004 for the purchase of their immovable
property known as erf 1593 Parklands, situated in Cape Town (the property).1 A
mortgage bond was registered over the property in favour of Absa to secure the loan.

1 Although the loan agreement was concluded before the coming into effect of the National Credit Act 34
of 2005 (NCA) on 1 June 2006, in terms of item 1 of schedule 3 of the NCA, the loan agreement became
governed by the NCA as a ‘pre-existing’ credit agreement, which is defined as ‘an agreement that was
made before the effective date and to which this Act applies.’

[3] The appellants defaulted on their repayment obligations to Absa, which issued
summons in the high court in November 2006 for payment of the outstanding amount
and for an order declaring the property specially executable. In the absence of a notice
of intention to defend by the appellants, default judgment was granted against them in
June 2008, followed by a warrant of execution for the sale of the property in execution.
The appellants subsequently applied for a stay of execution and the rescission of the
default judgment. The latter application was set down for 3 November 2008.
[4] On 13 October 2008 the parties concluded a settlement agreement, which was
made an order of court. In terms of that order, the appellants would settle the arrears
by 7 November 2008, in addition to the monthly bond instalments. The order also
provided that should the appellants fail to make the payments as agreed, the
respondent would be entitled to apply for judgment for the outstanding balance under
the mortgage bond, and for an execution order against the property.2 As a result of
this order, the appellants’ rescission application on 3 November 2008, was granted on
an unopposed basis.
[5] Pursuant to the order of 13 October 2008, the appellants settled the arrears on
their account, but again fell into arrears in May 2013. In March 2014 Absa applied to
the high court, seeking payment of the full outstanding amount and an order declaring
the property specially executable, as it was entitled to do in terms of the October 2008
order. The appellants failed to oppose the application, and default judgment was
granted against them on 15 April 2014. The several attempts made by the appellants
to invalidate this default judgment lie at the heart of this case.
[6] On 10 June 2014 the appellants applied for rescission of the two orders referred
to above (the October 2008 order and the default judgment). Their complaint in respect
of both orders was that the court had failed to take into account their rights in terms of
s 26(3) of the Constitution not to be deprived of a home without an order of court after
considering all the relevant circumstances. The application came before court on 6
November 2014. During argument, the first appellant, who appeared in person and on

2 The procedure set out in that court order is provided for in rule 41(4) of the Uniform Rules of Court.

behalf of the second appellant, made a muted reference to Absa not having complied
with s 129(1) of the National Credit Act 34 of 2005 (NCA).3
[7] None of the arguments found favour with the court. With regard to the October
2008 order the court observed that it was made by consent, and was therefore neither
a default judgment nor a judgment obtained in the absence of the appellants.
Regarding the default judgment, the court remarked that it was not clear on what
factual basis non-compliance with the NCA was asserted. Accordingly, it took the view
that absent such a basis, that argument was not open to the appellants. Consequently
the application for rescission of the two orders was dismissed.
[8] Following the dismissal of the rescission application, the property was attached.
A sale in execution was scheduled by the sheriff for 3 February 2015. The appellants
applied for leave to appeal against the dismissal of the rescission application. That
application was dismissed on 10 December 2014. The appellants applied to this court
for leave to appeal, which application was dismissed on 26 March 2015. The
appellants’ further application for leave to appeal to the Constitutional Court was
similarly dismissed on 27 July 2015.
[9] On 27 August 2015, the parties concluded another settlement agreement for
the payment of the arrears, and ancillary provisions. I shall revert to that agreement
later in the judgment. Once again, the appellants failed to comply with the terms of the
agreement. As a result, Absa caused a further sale in execution of the property to be
arranged, which the sheriff scheduled for 5 April 2016. On 30 March 2016, a week
before the sale in execution, the appellants launched an urgent application to stay the
sale. The application was dismissed, and so was the subsequent application for leave
to appeal. On 5 April 2016 the property was sold in execution to the third and fourth
respondents, and was transferred into their names on 10 June 2016. The appellants’

3 That section provides for the service of a notice by a credit provider on a consumer notifying them of
their default, and propose that the consumer refer the credit agreement to a debt counsellor, alternative
dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties
resolve any dispute under the agreement or develop and agree on a plan to bring the payments under
the agreement up to date. A credit provider is precluded from commencing any legal proceedings to
enforce the agreement before first providing such notice to a consumer.

application for leave to appeal against the refusal to stay execution was subsequently
dismissed by this court.
[10] On 5 September 2016 the appellants launched the application for declaratory
relief, to which this appeal relates. They sought a declaratory order that the credit
agreement between them and Absa was lawfully reinstated in terms of s 129(3) of the
NCA,4 upon payment of the arrears pursuant to the October 2008 agreement.
Accordingly, the appellants sought relief setting aside all that had been done after the
reinstatement, namely: the default judgment granted against them on 15 April 2014;
the sale in execution of the property; and, its transfer to the third and fourth
respondents. In addition, the appellants sought an order confirming the ‘reinstatement’
of the credit agreement between the parties in terms of the settlement agreement of
27 August 2015.
[11] The basis of the application was this. The court which considered the
application for default judgment should have verified that the appellants had paid all
the arrears pursuant to the October 2008 order. Upon such payment, the credit
agreement had been reinstated by operation of law. If Absa wished thereafter to
enforce the credit agreement, it had to issue a fresh notice in terms of s 129(1) of the
NCA. Absent such notice, Absa was not entitled to apply for default judgment. By
failing to make such an enquiry, and by granting judgment under those circumstances,
the court violated s 130(3) of the NCA, which enjoins a court to ensure that the court
may determine a matter concerning the enforcement of a credit agreement only if it is
satisfied that s 129(1), among others, has been complied.
[12] This, the appellants asserted, rendered the default judgment a failure of justice,
a breach of s 1 of the Constitution, and overall, a nullity. For this proposition the
appellants sought refuge in Nkata v Firstrand Bank Ltd and Others 2014 (2) SA 412
(WCC). There, the high court at para 34 held, although somehow tentatively, that
payment of arrears had the effect of reinstating a credit agreement, and that if the

4 The section provides that a consumer may at any time before the credit provider has cancelled the
agreement re-instate a credit agreement that is in default by paying to the credit provider all amounts
that are overdue, together with the credit provider’s permitted default charges and reasonable costs of
enforcing the agreement up to the time of re-instatement.

consumer again fell into arrears, the credit provider had to obtain a fresh judgment
and authority to execute after complying again with the provisions of s 129(1) of the
NCA.5
[13] The application was dismissed on 29 June 2017. The subsequent appeal to the
full court met the same fate on 17 August 2018. Both courts rejected the appellants’
submission that the default judgment was a nullity. They further concluded that the
issues raised in the application for declaratory relief were res judicata between the
parties. The issues, they concluded, were finally pronounced upon by the
Constitutional Court when it refused leave to appeal on 27 July 2015. However, this
court granted the appellants leave to appeal.
[14] Both the court of first instance and the full court commendably gave detailed
and closely reasoned judgments. However, I take a much narrower view. The anterior
issue is peremption – whether it is at all permissible for the appellants to impugn the
default judgment in the light of the settlement agreement of 27 August 2015. Then
there is the applicability of the doctrine of res judicata. I consider these in turn.
[15] The law on peremption is settled. If the conduct of an unsuccessful litigant is
such as to point indubitably and necessarily to the conclusion that he or she does not
intend to attack the judgment, then they are held to have acquiesced in it. The conduct
relied upon must be unequivocal and must be inconsistent with any intention to appeal.
The onus of establishing that position is upon the party alleging it. See South African
Revenue Service v Commission for Conciliation, Mediation and Arbitration and others
[2016] ZACC 38; 2017 (1) SA 549 (CC) para 26 with reference to Dabner v South
African Railways and Harbours 1920 AD 583 at 594.
[16] In this case, the conduct of the appellants appears from the settlement
agreement concluded between the parties on 27 August 2015. It is a detailed
agreement, providing for payment of the outstanding amount and for the payment
terms. The crucial portion is contained in clause 1. There, it is provided that

5   That tentative view was confirmed by the majority of the Constitutional Court in Nkata v Firstrand
Bank Ltd [2016] ZACC 12; 2016 (4) SA 257 (CC) paras 101 – 106.

‘defendants [appellants] confirm that the judgment against them stands and [they]
accept liability to plaintiff [Absa] jointly and severally for payment of R391 797.06.’ The
agreement made further provision for an order declaring the property specially
executable in the event of non-compliance. It is common cause that the judgment
referred to in that settlement agreement is the default judgment. Clauses 1.1 to 1.4
mirror clauses 1 to 4 of that judgment in terms of the amount owed, interest payable,
special executability of the property and costs.
[17] By confirming to the validity of the default judgment and accepting their liability
towards Absa pursuant to that judgment, it was no longer open to the appellants
thereafter, to impugn it. As explained by the Constitutional Court in Eke v Parsons
[2015] ZACC 30; 2016 (3) SA 37 CC para 31, the result of a settlement agreement
made an order of court is that a party is precluded from relying on a cause of action or
defence that could have been advanced or raised but for the settlement order.
Although the remarks in Eke were made in respect of an agreement made an order of
court, in my view, they apply with equal force to settlement agreements which do not
have the imprimatur of a court order.
[18] In my view, there could be no clearer conduct pointing to the abandonment of
their right to attack the default judgment than clause 1 of the settlement agreement.
The appellants clearly resigned themselves to the consequences of the judgment
against them, and committed themselves to fulfilling its terms. It was suggested in
argument that the appellants were in some way coerced by Absa into concluding this
agreement. This suggestion is refuted by the fact that the first appellant, Mr Jiyana, a
former practising attorney and a businessman, wrote to Absa on 9 July 2015, before
the Constitutional Court refused him and his wife leave to appeal against the refusal
of the rescission application, asserting that they were in a position to pay the
outstanding arrears and service the bond and suggesting that they conclude a
settlement agreement.  The conclusion is accordingly inescapable that the appellants
are perempted from impugning the default judgment. Whatever irregularities there
might have been in the manner in which that judgment was sought and granted, were
ratified in clause 1 of the settlement agreement. That should ordinarily be the end of

the matter. I will however, also consider the res judicata argument,6 to which I now
turn.
[19] A matter is res judicata if in the previous proceedings, the matter adjudicated
upon was for the same cause, between the same parties and the same thing was
demanded. See Smith v Porritt and others 2008 (6) SA 303 (SCA) para 10 in which a
flexible approach was adopted to the doctrine of res judicata. That approach was
approved by the Constitutional Court in S v Molaudzi [2015] ZACC 20; 2015 (2) SACR
341 (CC) paras 22 and 23. To consider whether this threshold had been met in the
present case, it is necessary to consider the applications for leave to appeal against
the dismissal of the rescission application in this court and in the Constitutional Court.
Those applications were not before us. At our request, the application to the
Constitutional Court was subsequently furnished to us. We also had regard to the
application for leave to appeal in this court.
[20] In both applications, the appellants’ main argument was two-fold. First, that they
were not in wilful default as they had not been served with the application for default
judgment. Second, that Absa had not complied with ss 129 and 130 of the NCA which
had the effect that the appellants could not ‘exercise their rights in terms of the NCA.’
This in turn, so went the submission, violated the appellants’ rights enshrined in ss 25,
26 and 34 of the Constitution.
[21] Having set out what was submitted in the Constitutional Court, it has to be
determined whether the appellants demanded the ‘same thing’ in the application for
declaratory relief. I have already mentioned that non-compliance with s 129(1) was
raised in the rescission application, albeit mutedly. In light of the facts of this case, that
argument could only have been raised in the context of re-instatement of the
agreement following the payment of the arrears pursuant to the October 2008 order.

6 See S v Jordaan & others (Sex Workers Education and Advocacy Task Force & others as amici curiae,
2002 (6) SA 642; 2002 (11) BCLR 1117 (CC) para 21 where it was held that where a provision or
decision is attacked on one ground that is considered decisive of the matter, the other grounds raised
in the matter should nevertheless be ventilated and decided upon for the benefit of a court that may
later have to hear an appeal arising from that matter.

As appears from the preceding paragraph, the same argument was made in the
applications for leave to appeal in this court and in the Constitutional Court. In the
application for declaratory relief that issue was one of the key contentions.
[22] Counsel for the appellants urged us to consider, with reference to Evins v Shield
Insurance Co Ltd 1980 (2) SA 814 (A) and National Sorghum Breweries Ltd (t/a) Vivo
African Breweries v International Liquor Distributors (Pty) Ltd 2001 (2) SA 232 (SCA);
[2001] 1 All SA 417 (SCA), that what was sought in the application for declaratory relief
was totally different from the relief sought in the rescission application.
[23] Evins involved the question whether at common law a claim for damages by a
plaintiff for bodily injury and the claim for damages by the same plaintiff for loss of
support caused by the death of a breadwinner (where both the bodily injury and the
death result from the same accident) were separate causes of action or simply facets
of a single cause of action. This court concluded at 839D that even though the two
claims may flow from the same event or accident, the cause of action in each may
arise at different times. In respect of bodily injury this will normally arise at the time of
the accident, whereas in the case of death, the cause of action for loss of support will
arise only upon the death of the deceased, which may be different from the date of the
accident. The one claim arose from the injuries suffered by the plaintiff, while the other
arose from the death of the breadwinner, and these were held to constitute separate
causes of action.
[24] The appellants’ position is different. Their right to challenge the default
judgment on the grounds that the credit agreement had been reinstated under s 129(3)
of the NCA was not deferred, but existed when they applied for rescission of the default
judgment. Unlike a claimant for loss of support whose claim does not arise until death
occurs, the appellants faced no such impediment. The right to challenge the default
judgment on any available legal ground inured to them immediately the judgment was
given. They initially elected to apply for rescission, and in these proceedings sought
to have the default judgment set aside, which was in essence the same as seeking its
rescission. Only when rescission was unsuccessful did the appellants launch the

review application. This is impermissible. It follows that the Evins principle does not
avail the appellants.
[25] In National Sorghum, the respondent had obtained default judgment against
the appellant for restitution flowing from breaches of three written agreements between
the parties. Later, in a second action the respondent claimed damages suffered as a
result of the breach of contract. The appellant’s special plea of res judicata was
dismissed on the basis that the claims were not based on the same grounds or cause
of action. In the first suit the cause of action was a claim for repayment of the purchase
price, whereas the second was a claim for damages consisting of expenses which the
respondent had incurred in carrying out its obligations under the agreements, and loss
of income.
[26] In the present case, the common ‘cause of action’ in the rescission application
and the application for declaratory relief was whether the default judgment should
remain of force and effect. The relief in both instances was the same, ie the setting
aside of that judgment. It is irrelevant whether one aims to ‘rescind’ it or set it aside as
claimed in the notice of motion or ‘declare it a nullity, as counsel expressed it.’ Its true
nature was not altered by pinning a new label on the review application, or by
advancing different reasons from those in the rescission application. The relief sought
was essentially the same, namely to undo the default judgment. As pointed out in
African Farms & Townships v Cape Town Municipality 1963 (2) SA 555 (A) at 563C-
E, different reasons leading to a different conclusion cannot affect the identity of the
question to be decided. In all the circumstances, the issue was res judicata.
[27] Counsel for the appellants also attacked the October 2008 order, in particular,
clause 7 thereof. That clause provided that in the event that the appellants failed to
comply with the terms of the order, Absa was entitled to apply for judgment for the
outstanding amount, on five days’ notice to the appellants. Counsel submitted that the
clause was unlawful in light of s 90(2)(a)(i) and 90(2)(b)(i), which respectively prohibit
provisions in credit agreements that defeat the purposes of the NCA or deprive a
consumer of a right set out in the NCA.

[28] The appellants are not entitled to revisit this point. As set out in paras 5 and 6
above, part of the rescission application was aimed at setting aside several clauses of
the October 2008 order, including clause 7. That was dismissed. Applications for leave
to appeal against the refusal of rescission were dismissed by this court and the
Constitutional Court. In all the circumstances, I conclude that the ‘same thing’ was
demanded by the appellants in the rescission application, the various applications for
leave to appeal and in the application for declaratory relief, ie the setting aside of the
default judgment. The issue was plainly res judicata.
[29] Closely allied to the doctrine of res judicata, is the ‘once and for all’ rule.
In Evins at 835E it was held that the purpose of the rule is to ‘prevent a multiplicity of
actions based upon a single cause of action and to ensure that there is an end to
litigation.’ See also National Sorghum para 10, where it was observed that the scope
of the rule requires that all claims generated by the same cause of action be instituted
in one action’.
[30] In Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472A-
E it was held that the law requires a party with a single cause of action to claim in one
and the same action whatever remedies the law accords him upon such cause. If a
cause of action has previously been finally litigated between parties, then a
subsequent attempt by one to proceed against the other on the same cause for the
same relief can be met by a defence of res judicata.
[31] The argument by the appellants was that the credit agreement had been
reinstated when the arrears were paid. Resultantly, when they again fell into arrears,
Absa was obliged to again comply with s 129 before taking judgment. As stated
already, that argument was based on Nkata para 34. By the time the rescission
application was launched, Nkata had been handed down six months earlier, on
16 January 2014. Thus, that argument was available to the appellants then.
[32] It is therefore inexplicable that in their supporting affidavits, the appellants did
not assail the default judgment on the basis that it was erroneously granted for want
of compliance with Nkata. In terms of the once and for all rule, the appellants are not

permitted to revisit the issue. When the attack on the default judgment was considered
the appellants were bound to put their whole case before court. They were bound to
assemble all the weapons in their arsenal to set aside the default judgment, which
included Nkata.
[33] Although they did not refer to Nkata, without specifying the basis therefor, they
raised non-compliance with s 129(1), which could only have been required if the
agreement had been reinstated under s 129(3). It is of their own doing that the
application was dismissed on that basis. They are not permitted, without special
circumstances, to approach the court again on a different basis. Their assertion that
the law was uncertain until the Constitutional Court judgment handed down its
judgment in Nkata is unconvincing.  That there was an application for leave to appeal
pending in the Constitutional Court at the time of the rescission application, did not
prevent the appellants from relying on the high court judgment, subject to the outcome
of the appeal.
[34] In all the circumstances, the appeal must fail. It is dismissed with costs,
including costs of two counsel.

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T M Makgoka
Judge of Appeal

APPEARANCES:
For the Appellants:
M Donen SC
Instructed by :

Godla & Partners Inc., Cape Town

Matsepes Inc., Bloemfontein

For First Respondent:
A Bham SC (with him P Ngcongo)
Instructed by :

Webber Wentzel, Johannesburg

Phatshoane Henney Attorneys, Bloemfontein