Jiyana and Another v Absa Bank Limited and Others

The appellants, a married couple, concluded a home loan agreement with Absa Bank in 2004 secured by a mortgage bond over their immovable property. After defaulting, Absa obtained default judgment in 2008 declaring the property specially executable. A settlement agreement in October 2008, made an order of court, allowed the appellants to cure arrears, resulting in rescission of the default judgment. They later defaulted again, and Absa obtained a further default judgment in April 2014 declaring the property executable. Multiple attempts by the appellants to rescind or invalidate this judgment failed, including applications for leave to appeal up to the Constitutional Court. In August 2015 the parties concluded a further settlement agreement in which the appellants expressly acknowledged the validity of the 2014 default judgment and their liability under it. After further non-compliance, the property was sold in execution and transferred to third parties. In 2016 the appellants launched a new application for declaratory relief, contending that payment of arrears had reinstated the credit agreement under the National Credit Act (NCA), rendering the 2014 default judgment and subsequent execution a nullity.

The appeal was dismissed with costs, including the costs of two counsel.

The case affirms the doctrines of peremption and res judicata in South African civil procedure, particularly in the context of repeated attempts to set aside default judgments. It underscores that settlement agreements acknowledging the validity of a judgment bar subsequent challenges to that judgment, and that litigants must raise all available grounds of attack in a single proceeding. The judgment reinforces finality in litigation involving credit agreements and execution against immovable property.