Thembinkosi Khulekani Rudolf Jiyana and Another v Absa Bank Limited and Others

The appellants (Mr and Mrs Jiyana) concluded a loan agreement with Absa Bank in January 2004 for the purchase of immovable property, secured by a mortgage bond. They defaulted and a default judgment was granted in June 2008. Following a rescission application, the parties concluded a settlement agreement on 13 October 2008 which was made an order of court, providing for payment of arrears and stipulating that Absa could apply for judgment if they defaulted again. The appellants paid the arrears but again defaulted in May 2013. Absa applied for and obtained a default judgment on 15 April 2014. The appellants applied for rescission of both the October 2008 order and the April 2014 default judgment, arguing breach of their constitutional rights and non-compliance with section 129(1) of the National Credit Act (NCA). This application was dismissed on 6 November 2014, and subsequent leave to appeal applications were refused by the High Court, Supreme Court of Appeal and Constitutional Court. On 27 August 2015, the parties concluded another settlement agreement in which the appellants confirmed that the default judgment stood and accepted liability. After further non-compliance, the property was sold in execution on 5 April 2016 and transferred to the third and fourth respondents. On 5 September 2016, the appellants launched an application for declaratory relief seeking to set aside the default judgment, the sale in execution and transfer, arguing the credit agreement had been reinstated after payment of arrears pursuant to the October 2008 order, and that Absa was required to issue a fresh section 129(1) notice before taking further action.

• Whether the appellants were perempted from challenging the default judgment after concluding a settlement agreement acknowledging its validity
• Whether the application for declaratory relief was res judicata given the prior rescission application and dismissal of appeals
• Whether the 'once and for all' rule prevented the appellants from raising arguments in the declaratory relief application that could have been raised in the rescission application
• Whether payment of arrears reinstates a credit agreement under section 129(3) of the NCA requiring fresh compliance with section 129(1) before further enforcement
• The validity of clause 7 of the October 2008 order in light of section 90(2) of the NCA

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

1. When parties conclude a settlement agreement acknowledging the validity of a judgment and accepting liability pursuant to that judgment, they are perempted from subsequently challenging that judgment. Such conduct is unequivocal and inconsistent with any intention to attack the judgment. 2. Settlement agreements preclude parties from relying on causes of action or defences that could have been advanced but for the settlement (applying Eke v Parsons). 3. For purposes of res judicata, the true nature of relief sought is not altered by applying different labels or advancing different reasons. If the essential relief is the same (e.g., setting aside a judgment whether by 'rescission' or 'declaration of nullity'), the matter is res judicata. 4. The 'once and for all' rule requires parties to advance all available arguments in support of their case in a single action. A party cannot revisit an issue by raising arguments in a subsequent application that were available but not raised in an earlier application seeking the same relief. 5. Irregularities in the manner in which a judgment was obtained are ratified by a subsequent settlement agreement acknowledging the validity of that judgment.

The Court noted that while the high court judgment in Nkata v Firstrand Bank Ltd 2014 (2) SA 412 (WCC) (which tentatively held that payment of arrears reinstates a credit agreement requiring fresh section 129 notice) had been handed down six months before the rescission application, the appellants failed to rely on it. The Court observed that the fact an application for leave to appeal to the Constitutional Court was pending did not prevent the appellants from relying on the high court judgment, subject to the outcome of the appeal. The Court also noted that the first appellant was a former practicing attorney and businessman who had himself initiated correspondence proposing the settlement agreement, refuting any suggestion of coercion by the bank. The Court observed that although it was taking a 'much narrower view' than the courts below (which had given detailed and closely reasoned judgments), the issues of peremption and res judicata were dispositive and provided a more direct route to the conclusion.

This judgment reinforces important principles in South African civil procedure regarding finality of litigation. It demonstrates the binding effect of settlement agreements and confirms that parties who expressly acknowledge the validity of a judgment in a settlement agreement are perempted from subsequently challenging that judgment. The case affirms the proper application of res judicata and the 'once and for all' rule, emphasizing that litigants must present their entire case at the first opportunity and cannot repeatedly approach courts with new formulations of the same relief. The judgment also illustrates the interplay between settlement agreements, peremption and constitutional rights, showing that parties can waive or abandon constitutional challenges through unequivocal conduct. It provides guidance on when different applications are considered to seek the 'same thing' for purposes of res judicata, looking to substance over form.