Jiyana and Another v Hardisty and Others

The applicants, Mr and Mrs Jiyana, had lived in a property in Parklands for 18 years with their two children. ABSA Bank, the bondholder, obtained default judgment against them and later, by consent order (Thring J, 2008), the applicants agreed to pay arrears and bond instalments. The order provided that default would make the full balance due and allow ABSA to obtain judgment and declare the property executable. The applicants defaulted in 2013; ABSA obtained judgment, declared the property executable, and sold it to the first and second respondents. Eviction proceedings ensued, and despite opposition, an eviction order was granted and executed on 12 December 2023. The applicants challenged the declaration of executability on constitutional grounds in the High Court, SCA, and Constitutional Court, all without success. The applicants sought an urgent interdict to regain possession, contending the 2008 consent order was unlawful because it circumvented section 129 of the National Credit Act, rendering all subsequent orders nullities.

• Whether the applicants, having been declared vexatious litigants, were required to obtain leave of court before instituting the interdict application, and the consequences of their failure to do so.
• Whether the 2008 consent order of Thring J was unlawful for circumventing section 129 of the National Credit Act 38 of 2005.
• Whether the applicants could challenge the consent order after 15 years of compliance with it.
• Whether the applicants' application constituted an abuse of court process.

The application was dismissed, and the applicants were ordered to pay the costs of the application, including the costs of counsel.

Court orders must be obeyed and remain binding until set aside by a competent court, even if allegedly irregular. A vexatious litigant must obtain leave of court before instituting any legal proceedings, failing which those proceedings are not properly before court. Additionally, a party who has acquiesced in a consent order for an extended period may be precluded (perempted) from later challenging its validity.

The court expressed its concern over the conduct of the applicants and their legal representative in failing to obtain leave, noting the seriousness of disregarding court orders and highlighting that such conduct is criminalised under section 2(4) of the Vexatious Proceedings Act. The court also warned the applicants to follow proper legal process in future, failing which they could face contempt proceedings and sanctions.

This case reinforces the strict requirement that vexatious litigants must obtain leave before instituting proceedings and underscores the principle that court orders — including consent orders — remain binding and must be respected until set aside. It confirms that litigants cannot acquiesce in orders for years and later challenge them as nullities. The judgment also affirms that defences already dismissed in previous litigation cannot be recycled in an attempt to circumvent eviction orders.