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[2017] ZAWCHC 69
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Jiyana and Another v Absa Bank and Others (15952/2016) [2017] ZAWCHC 69 (29 June 2017)

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IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
No.:
15952/2016
Reportable
In
the matter between:
THEMBINKOSI
KHULEKANI RUDOLF JIYANA
First
Applicant
NOMVO
JIYANA
Second
Applicant
and
ABSA
BANK
First
Respondent
CAPE
TOWN NORTH
SHERIFF
Second
Respondent
GARY
NIGEL
HARDISTY
Third
Respondent
JENNIFER
JANINE DOROTHY HARDISTY
Fourth
Respondent
REGISTRAR
OF DEEDS, WESTERN CAPE
Fifth
Respondent
JUDGMENT
delivered
29 JUNE 2017
MEER
J.
[1]
The Applicants seek by way of declaratory relief an order that a
default judgment granted against them on 15 April 2014, and
the
subsequent execution against their home and primary residence, at […]
E.[…], Parklands, Cape Town, (“the
property”) be
set aside.  They seek moreover a declaration that the auction,
sale and transfer of the property to the
Third and Fourth Respondents
has no legal effect and be set aside.
[2]
The basis upon which the relief is sought is that upon the
reinstatement of a credit agreement (which financed the Applicants'

purchase of the property by way of a mortgage loan agreement) between
the Applicants and the First Respondent, the latter was obliged
to
first send a notice in terms of Section 129(1) of the National Credit
Act 34 of 2005 (“the NCA”), before approaching
the court
to seek judgment.  The First Respondent’s failure to do
so, contend the Applicants, resulted in the default
judgment granted
on 15 April 2014 being a nullity.  The Applicants contend that
in granting the default judgment, the Court
violated the Applicants’
rights to property protected by section 25(1) of the Constitution,
their rights in terms of section
34 thereof, and the rule of law by
delivering judgment against the Applicants and ordering their
property to be declared executable
in the absence of compliance with
sections 129(1), 130(1) and 130(3) of the NCA.
[3]
The relevant sections aforementioned  state:
“
129.
Required procedures before debt enforcement.
—
(1)
If the consumer is in default under a credit agreement, the credit
provider—
(
a
) may draw
the default to the notice of the consumer in writing 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; and
(
b
)
subject to section 130 (2), may not commence any legal
proceedings to enforce the agreement before—
(i)
first providing notice to the consumer, as contemplated in paragraph
(
a
),
or in section 86 (10), as the case may be; and
(ii)
meeting any further requirements set out in section 130.”
“
130.
Debt procedures in a Court.
—
(1)
Subject to subsection
(2), a credit provider may approach the court for an order to
enforce a credit agreement only if, at
that time, the consumer is in
default and has been in default under that credit agreement for at
least 20 business days and—
(
a
) at least
10 business days have elapsed since the credit provider delivered a
notice to the consumer as contemplated in section
86 (10), or
section 129 (1), as the case may be;
(
b
) in the
case of a notice contemplated in section 129 (1), the consumer
has—
(i)
not responded to that notice; or
(ii)
responded to the notice by rejecting the credit provider’s
proposals; and
(
c
) in the
case of an instalment agreement, secured loan, or lease, the consumer
has not surrendered the relevant property to the
credit provider as
contemplated in section 127.
...
(3) Despite any
provision of law or contract to the contrary, in any proceedings
commenced in a court in respect of a credit agreement
to which this
Act applies, the court may determine the matter only if the court is
satisfied that—
(
a
) in the
case of proceedings to which sections 127, 129 or 131 apply, the
procedures required by those sections have been complied
with;
(
b
) there is
no matter arising under that credit agreement, and pending before the
Tribunal, that could result in an order affecting
the issues to be
determined by the court; and
(
c
) that the
credit provider has not approached the court—
(i)
during the time that the matter was before a debt counsellor,
alternative dispute resolution agent, consumer court or the ombud

with jurisdiction; or
(ii)
despite the consumer having—
(
aa
)
surrendered property to the credit provider, and before that property
has been sold;
(
bb
) agreed
to a proposal made in terms of section 129 (1) (
a
)
and acted in good faith in fulfilment of that agreement;
(
cc
) complied
with an agreed plan as contemplated in section 129 (1) (
a
);
or
(
dd
)
brought the payments under the credit agreement up to date, as
contemplated in section 129 (1) (
a
).”
[4]
The First Respondent opposes the application.  The other
Respondents have chosen not to participate and have not filed
any
pleadings.  The stance of the First Respondent is that the
matter is
res judicata,
not subject to a further application
and stands to be dismissed.  The First Respondent contends that
subsequent to the granting
of the default judgment on 15 April 2014,
the Applicants unsuccessfully applied for the rescission thereof and
their subsequent
applications for leave to appeal against the
dismissal of their rescission application in this Court, the Supreme
Court of Appeal
and the Constitutional Court were dismissed.
Thereafter the Applicant’s
acquiesced
to the default
judgment, and it is therefore not open to the Applicants to bring
this application.
Background
Facts
[5]
The relevant facts are to a large extent common cause.  The
Applicants purchased and took transfer of the property during
2004.
The First Respondent provided finance in terms of a loan agreement.
Clause 8 thereof provides for default by
the mortgager.
In such event all amounts which were secured under the bond would, at
the option of the First Respondent and
without the bank being
required to give notice to the mortgagor, immediately become payable
in full, and the bank would be entitled
to institute proceedings for
the recovery of all such amounts and for a court order declaring the
mortgaged property executable.
[6]
Had the NCA been in effect when the agreement was made, the agreement
would have fallen within its application.  In terms
of Item 4 of
Schedule 3 to the NCA, however, the NCA applies to the agreement.
In particular, by virtue of sub-item 4(2)
of the Schedule, Chapter 6
of the NCA (which deals with debt enforcement at sections 129 and
130),  applied fully to the pre-existing
agreement from 1 June
2007.
[1]
[7]
Between 2005 and 2014 the First Respondent instituted several
proceedings against the Applicants due in the main to their
defaulting
as mortgagors under the credit agreement.  All in all
it would seem this Court has been approached some 13 times, as
chronicled
below:
7.1 On 22 March 2005 the First Respondent issued summons
out of the Magistrate’s Court for payment of the sum of R488
578.72
together with interest and costs as well as an order declaring
the immovable property executable.  The action was settled and
a
deed of settlement concluded on 25 April 2015.
7.2 On 6 November 2006 the First Respondent issued
another summons out of this Court under Case No. 12109/06 arising
from the Applicants’
alleged failure to pay R17 248.63 in
arrear instalments.  The capital amount then owing was claimed
together with an order
declaring the property executable.  On 10
December 2007 the First Respondent applied to the Registrar for
default judgment,
which was granted on 24 June 2008 under Case No.
12109/06.  The Applicants then launched an application for
rescission of
judgment (under Case No. 16634/2008) and an application
for a stay of execution (under Case No. 16633/2008).
Justice Thring’s Order of 13 October 2008
7.3 On 13 October 2008 Justice Thring granted an order
by agreement in all three case numbers referred to in the previous
paragraph.
The Applicants were ordered to repay the arrears on
their home loan account by making specified payments to the bank.
7.3.1 Clause 2 of the order provided that should the
Applicants fail to make any of the payments on or before the due
dates and/or
comply with any of the terms of the order on or before
the due dates, “the full outstanding balance in terms of the
mortgage
bond shall become immediately due and payable”.
7.3.2 Clause 4 of the order provided that “the
remaining terms and conditions of the mortgage bond shall remain in
full force
and effect”.  The Applicants contend that these
clauses effectively facilitated the reinstatement of the mortgage
bond
agreement, in terms of
section 129(3)
of the
National Credit
Act, by
providing for payment of arrears, and the continuation of the
existing debtor/creditor relationship.
7.3.3 Clause 7 of the order provided that in the event
of the Applicants not complying with the terms of the order, the bank
would
be entitled, on 5 days’ notice to the Applicants, to
apply for judgment for the outstanding balance of the mortgage bond,

together with interest and legal costs, as well as an order declaring
the property executable forthwith.
7.3.4 In terms of clause 5 of the order a sale in
execution that had been arranged for 14 October 2008 was cancelled,
and the bank
withdrew the relief prayed for in this respect with each
party to pay their own costs.  In terms of clause 6 the
application
for rescission brought by the Applicants under Case No.
16634/08 was to proceed on an unopposed basis with each party to pay
their
own costs.
Order by Justice Le Grange on 3 November 2008
7.4 In terms of an order made by Justice Le Grange on 3
November 2008 the default judgment granted by the Registrar on 24
June 2008
under Case No. 12109/06 was rescinded.
[8]
Thereafter the Applicants made 2 payments on 28 October 2008 and as
of that date there were no more arrears on the account.
[9]
The Applicants contend that upon a proper construction of section
129(4) of the Act, which was then of full force and effect,
the
credit agreement between the Applicants and the First Respondent had
been reinstated by the orders of Justices Thring and Le
Grange.
The  procedures before further debt enforcement (as required by
section 129(1) of the Act and the peremptory
debt procedures in a
Court as required by section 130(1)(a) and (b) and 130(3) of the
Act), contend the Applicants, had to be applied
before any further
debt enforcement by the bank and determination of the matter by the
Court, could be sanctioned by law.
Further
legal proceedings instituted by the First Respondent
[10]
The Applicants again fell into arrears with their monthly instalments
and on 30 August 2012 the First Respondent brought an
application in
terms of Rule 41(4) against them.  The application was however
not proceeded with.
[11]
Default Judgment granted by Justice Blignault 15 April 2014
11.1 After 21 May 2013 the Applicants’ account
fell into arrears yet again.  The First Respondent set down an
application
on 27 March 2014 for payment of the capital amount of
R391 797.06, interest and an order declaring the property
executable.
The application was set down under Case No’s
12109/2006, 16634/2008 and 16633/2008, being the matters in respect
of
which Justice Thring had granted the order by agreement and
Justice le Grange had granted the rescission application
aforementioned.
11.2 There was no service of the application on the
Applicants and the matter was removed from the roll.  A fresh
application
for the same relief was issued and enrolled for 15 April
2014.  The Deputy Sheriff unsuccessfully attempted to effect
service
on the Applicants at the property.  The return of
service reflects that when he attempted to do so the premises were
locked
and on 2 April 2014 he again attempted service.  The
return of that date reflects that the Applicants had left the given
address
as informed by the occupier and their present whereabouts are
unknown.  The return reflects moreover “both phone numbers

phoned.  No response either.”  The application
proceeded unopposed and on 15 April 2014 Blignault J granted default

judgment against the Applicants and an order declaring the property
executable, in their absence.  It is this order that the

Applicants are seeking to challenge in the present application.
Events
after default judgment of 15 April 2014
[12]
Pursuant to the default judgment, a sale in execution of the property
under attachment was first arranged for 19 August 2014.
On 10
June 2014, in Case No. 10095/2014, the Applicants applied for the
rescission of the judgment granted against them by Blignault
J.
The rescission application was heard by Rosenberg AJ and was
dismissed on 6 November 2014.  Thereafter a warrant
of execution
was issued and the Sheriff attached the Applicants’ property.
[13]
The Applicants then proceeded with an application for leave to appeal
against the judgment by Rosenberg AJ in Case No. 10095/2014.
On
10 December 2014 the application for leave to appeal was dismissed
with costs.  A second sale in execution of the property
was
arranged for 3 February 2015.
Applications
for Leave to Appeal to the Supreme Court of Appeal and the
Constitutional Court
[14]
On 26 January 2015 the Applicants applied for leave to appeal to the
Supreme Court of Appeal.  Consequently, the First
Respondent
stayed the execution sale scheduled for 3 February 2015.  On 26
March 2015 the Supreme Court of Appeal dismissed
the application for
leave to appeal.
[15]
Thereafter on 4 June 2015 the Applicants approached the
Constitutional Court, under Case No. CCT98/2015, for leave to
appeal.
On 27 July 2015 the Constitutional Court dismissed the
application.
Deed
of Settlement concluded between the Applicants and First Respondent
[16]
During August 2015 the Applicants and the First Respondent concluded
a deed of settlement.  In clause 1 thereof the Applicants

confirmed that the judgment of 15 April 2014 against them stands, and
accepted liability to the First Respondent jointly and severally
for
payment of the sum of R391 797.06, interest and an order
declaring the property executable with costs on an attorney and

client scale.  The Applicants undertook to pay their monthly
instalments and the arrears in three amounts of R44 669.64 per
month
on or before the last day of each month, as from 31 December 2015.
[17]
The Applicants failed to comply with the deed of settlement and the
First Respondent arranged a further sale in execution of
the property
for 5 April 2016.  On 29 March 2016 the Applicants brought an
application for the review of the taxed bill of
costs.  This
application was dismissed on 21 October 2016.  Thereafter on 30
March 2016, seven days before the sale in
execution, the Applicants
brought an urgent application interdicting the sale. On 31 March 2016
that application was dismissed
with costs. Applications for leave to
appeal to this Court and the Supreme Court of Appeal against the
dismissal of that application,
were unsuccessful.
The
Applicants’ Argument
[18]
Relying on the judgments of
Nkata v Firstrand
Bank Ltd and Others
2014 (2) SA 412
(WCC),
and
Nkata v Firstrand Bank Ltd
2016 (4) SA 257
(CC) (which judgments are discussed below), the
Applicants argue that the default judgment granted by Blignault J on
15 April 2014
was void in the absence of compliance with sections
129(1), 130(1) and 130(3) of the NCA.  As a result of the
reinstatement
of the credit agreement pursuant to the order of Thring
J, they contend, it was incumbent upon the First Respondent to start
afresh
by sending a section 129(1) notice to the Applicants before
seeking judgment in April 2014.  As this did not occur, the
order
of Blignault J, so the argument goes, as aforementioned,
violated the Applicants’ rights to property protected by
section
25(1) of the Constitution, the Applicants’ rights in
terms of section 34 thereof, and the rule of law.
[19]
In challenging the default judgment of 15 April 2014, the Applicants
note that the founding affidavit of the manager of the
First
Respondent's home loans division failed to disclose that the default
judgment granted by the Registrar under Case No. 12109/2006
on 24
June 2008, was rescinded on 3 November 2008 and that therefore the
order declaring the property especially executable had
been
rescinded.  The Applicants point out that the First Respondent’s
manager relied on paragraph 7 of the order granted
by Justice Thring,
that is to the effect that in the event of the Applicant not
complying with the terms of that order the bank
would be entitled, on
5 days’ notice to Applicants, to apply for judgment on the
balance under the mortgage bond, interest
and legal costs and an
order declaring the property executable.  This part of the
order, they argue, could not lawfully be
given effect to because it
conflicted with the express notice provisions in section 129(1),
section 130(1) and section 130(3) of
the NCA, all of which became
peremptory after the credit agreement was reinstated.
[20]
In order to enforce the debt in terms of the credit agreement between
the parties, the Applicants argue, the First Respondent
would have
had to comply with section 129(1) of the NCA.  It would have had
to issue a new summons.  In terms of section
130(1) of the Act,
the First Respondent, the Applicant contends, was not entitled to
approach the Court unless it had given notice
to the Applicants as
contemplated in section 129(1) and they had not responded to the
notice or responded by rejecting the bank’s
proposals.
The Court, they argue, was not entitled to determine the matter
unless it was satisfied that section 129 procedures
had been complied
with, as required by section 130(3), all of which became peremptory
after the credit agreement was reinstated.
The
Res Judicata Argument
[21]
The Res Judicata defence relied upon by the first Respondent,
pertains to the rescission application in this Court and applications

to the Supreme  Court of Appeal and Constitutional Court. It is
important to note that in the present application the Applicants

argue on the same facts that were before Rosenberg AJ, in the
application to rescind the default judgment of 15 April 2014.  That

application was dismissed by Rosenberg AJ on 6 November 2014.
Thereafter, as aforementioned, applications for leave to appeal

before Rosenberg AJ, the Supreme Court of Appeal and the
Constitutional Court, were dismissed.  The First Respondent
contends
that the matter is accordingly res judicata and stands to be
dismissed, as appears more fully below.
[22]
The First Applicant, who is an attorney, appeared on behalf of the
Applicants in the rescission application that was dismissed
by
Rosenberg AJ.  It would appear from the judgment of Rosenberg AJ
of 6 November 2014, that the Applicant, in argument, raised
the First
Respondent’s failure to comply with the notice requirement in
terms of section 129 (1) in the proceedings pertaining
both to the
2008 order of Thring J and the 2014 default judgment of Blignault J.
Rosenberg AJ however ruled that it was not
open to the Applicants to
rely on this NCA non-compliance argument, as the argument had not
been addressed at all in their pleadings.
I quote from the
relevant sections of the judgment.
“
[9] Rescission of the relevant paragraphs of the
judgment and order of 13 October 2008 was contended for by the First
Applicant,
an attorney who appeared on his behalf and on behalf of
his wife, the Second Applicant, on the following grounds:
•
No notice had been given by the Respondent to the
Applicants in terms of s 129(1) of the National Credit Act 34 of 2005
(‘the
NCA’) and in the result the Respondent was
precluded by s 130(1) of the NCA from approaching the Court for the
order it obtained.
•
The Court failed properly to take into account
and evaluate the Applicants’ rights in terms of s 26(3) of the
Constitution,
regard being had to the fact that the bonded property
was their primary residence.
[10] Rescission of the judgment of 15 April 2014 was
sought on the same two grounds.
[13] Turning to the first ground of attack on the
judgment of 15 April 2014, namely non-compliance with s 129(1)(e) and
s 130(1)
of the NCA, the problem for the Applicants in this regard is
that the application does not rely on any such non-compliance as
constituting
an error in the granting of the judgment.  The
issue of compliance or non-compliance with these provisions of the
NCA is not
addressed at all in the papers.  This being so, one
is left to speculate, on the basis of possible inferences to be drawn
from certain of the annexures to the affidavits in the present
application, as to the question of possible non-compliance with s
129
and s 130 of the NCA.  Absent a proper factual basis being laid
for the argument, it is in my view not open to the Applicants
to rely
on NCA non-compliance.
[14] In any event, the judgment of 15 April 2014 was
based upon the Applicants’ alleged breach of the provisions of
the judgment
of 13 October 2008.  Adopting the two step approach
adopted in
Grainco (Pty) Ltd v Broodryk No en Andere
, while
the underlying mortgage bond agreement is a credit agreement for the
purposes of the NCA, the judgment itself clearly is
not.”
[23]
Thus the First Respondent's failure to comply with the notice
requirement in terms of section 129(1) as a ground for setting
aside
both the judgments of Thring J and Blignault J, was raised in the
rescission application before Rosenberg AJ, and the Applicant
was at
that stage aware of this legal point which now features prominently
in the application before me.
[24]
It is to be noted that whilst the First Applicant raised
non-compliance with the section 129(1) notice in the rescission
application
before Rosenberg AJ, he did not specifically argue the
reinstatement of the agreement in terms of section 129(3) of the
Act.
At the time the Applicant’s rescission application
was heard in June 2014, there was binding precedent in this division
as
per the judgment of Rogers J in
Nkata v
First Rand Bank Limited and Others
2014(2) SA
412 (WCC), to the effect that a consumer may reinstate a credit
agreement by the payment of the arrear instalments.  Rogers
J
held at paragraph 38 that in order to effect reinstatement in terms
of section 129 (3)(a), Nkata, the debtor before him, did
not need to
pay the full accelerated debt but only the arrear instalments.
At paragraph 34, Rogers J said that if Nkata again
fell into arrears
in respect of the reinstated mortgage loan agreements, the bank would
arguably need to obtain a fresh judgment
and authority to execute
after complying again with the provisions of section 129(1).
The
Nkata judgment
was
delivered in this Court on 20 November 2013, almost seven months
prior to the Applicants’ application for rescission
of judgment
on 6 June 2014.
[25]
Some time was spent during argument concerning the implications of
the Applicants' failure to raise the reinstatement argument,
in its
current formulation before me, in the rescission application and the
applications for leave to appeal.  The Applicants
do not explain
why the reinstatement of the agreement in terms of section 129(3), in
the light of the
Nkata
judgment, was not argued in the rescission judgment before this Court
and the subsequent applications for leave to appeal in this
Court,
the Supreme Court of Appeal and the Constitutional Court.  The
Nkata
judgment of
Rogers J was, as aforementioned, binding, albeit that an appeal had
been noted against it.  In an appeal to the
Constitutional
Court, after the SCA had overturned the decision of Rogers J, the
latter’s decision in the first
Nkata
judgment was ultimately upheld.  See
Nkata v Firstrand Bank
2016
(4) SA 257
(CC).  Of relevance to this application, the
Constitutional Court found
[2]
that the High Court correctly held that reinstatement in terms of
section 129(3)(a) occurred by operation of law.  The Court
also
“readily embraced the conclusion of the High Court that only
the arrear instalments, and not the full accelerated debt
needed to
be paid in order to effect reinstatement”
[3]
.
[26]
Mr Donen for the Applicants said that the First Applicant was not
aware of the first
Nkata
judgment at the time of the rescission application.  He
submitted also that the Applicants had not appreciated the true
nature
of their cause of action until after the Constitutional Court
judgment in
Nkata.
He
submitted that in confirming the order of Rogers J, the speculation
by Rogers J in the first Nkata judgment at paragraph
34, that upon
reinstatement of a credit agreement, section 129(1) would have to be
complied with, prior to a fresh judgement being
sought, was supported
by the Constitutional Court.  The present application, he said,
was inspired by the first Nkata judgement
that was upheld by the
Constitutional Court.  During that process the principle was
established as to how reinstatement operates
if arrears are paid.
The Applicants, he contended, finally found out what the law
was after the Constitutional Court judgment
and so they have pursued
what he referred to as the “Nkata line” in this
application.  They therefore, he contended,
have a right to have
their real dispute with the First Respondent resolved by application
of the law which they presently raise
in their application.
[27]
Mr Van Riet for the First Respondent submitted that the Applicant, an
attorney, could not have contended for the notice requirement
in
terms of s 129(1) before Rosenberg AJ, without being aware of the
legal argument that a consumer may reinstate a credit agreement
by
the payment of arrears, which was established as law in the judgment
of Rogers J in
Nkata v First Rand Bank Limited
and Others
2014 (2) SA 412
(WCC).  Mr
Van Riet submitted moreover that in the application for leave to
appeal to the Constitutional Court, the Applicants
alleged that even
after they had paid their arrears in full in terms of the order by
Justice Thring, the Respondent proceeded with
an application in terms
of Rule 41(4) against them while all the outstanding arrears had been
paid.  Implicit in that allegation,
suggested Mr Van Riet, was
the fact that the Applicants knew that the agreement had been
reinstated.  Thus, argued Mr Van
Riet, both the point pertaining
to the reinstatement of the credit agreement and the failure to serve
a notice in terms of section
129(1) were made before this Court and
the Constitutional Court.
[28]
It is to be noted that this Court, the Supreme Court of Appeal and
the Constitutional Court, with knowledge that the Applicants
had paid
their arrears on the account at some stage prior to the judgment of
Blignault J, rejected the Applicants' argument and
concluded that
there were no prospects of success in the rescission application.
[29]
The introduction only in the application before me of the argument in
its current form, concerning the failure to serve the
notice
aforementioned after the reinstatement of the credit agreement, being
a violation of the Applicants’ constitutional
rights, after all
of three courts had pronounced in applications on the same facts,
brings me to a consideration of the applicability
of the doctrine of
res judicata
, raised
by the First Respondent in opposition to this application.
[30]
The defence of
res judicata
and the history thereof in our law was conveniently summarised by
Blignault J in
Consol Ltd t/a Consol Glass v
Twee Jonge Gezellen (Pty) Ltd and Another
2005
(6) SA 23
(C).  In
Consol,
after setting out the classic formulation of the requirements for the
defence of
res judicata,
namely a judgment in an action (1) with respect to the same subject
matter, (2) based on the same ground, and (3) between the same

parties, Blignault JA went on to state at paragraph 50 as follows:
“
The English courts have for many years recognised
the principle that
res judicata
does not only cover the express judicial declaration in the earlier
proceedings, but also points that should have been raised but
were
omitted to be raised in the earlier proceedings.  The decision
generally recognised as first expressing this principle
is that of
Wigram VC
in
Henderson
v Henderson
1843(3) Hare 100
[1843] EngR 917
;
(67 ER 313)
at
114 – 15 (Hare) where the following was said:
‘
In trying this question I believe I state the
rule of the Court correctly when I say that, where a given matter
becomes the subject
of litigation in, and of adjudication by, a Court
of competent jurisdiction, the Court requires the parties to that
litigation
to bring forward their whole case, and will not (except
under special circumstances) permit the same parties to open the same
subject
of litigation in respect of  matter which might have
been brought forward as part of the subject in contest, but which was

not brought forward, only because they have, from negligence,
inadvertence, or even accident, omitted part of their case.
The
plea of
res judicata
applies, except in special cases, not only to points upon which the
Court was actually required by the parties to form an opinion
and
pronounce a judgment, but to every point which properly belonged to
the subject of litigation, and which the parties, exercising

reasonable diligence, might have brought forward at the time.’
At
paragraph 52 Blignault J went on to state that there did not appear
to be any considerations of logic or equity militating against
the
application of the
Henderson
principle in the case before him,
and that he proposed to follow it.
Similarly,
there do not appear to me to be any considerations of logic or equity
militating against the application of the
Henderson
principle
in the present application.
[31]
The Supreme Court of Appeal has confirmed that the true basis that
underlies the principle of
res judicata
is abuse of the court process.  In
Janse
van Rensburg NNO v Steenkamp and Another; Janse van Rensburg NNO v
Myburgh and Others
2010 (1) SA 649
(SCA),
Heher JA held as follows at 660H – 661D:
“
[29] In
Arnold v National
Westminster Bank plc
[1991] 3 All ER 41
(HL)
at 48j Lord Keith pointed out that, although Henderson’s was a
case of action estoppel, the statement of the law has
been held to be
applicable also to issue estoppel.  The learned Law Lord had
earlier referred (at 48e) to
Brisbane City
Council v Attorney-General for Queensland
[1978] 3 All ER 30
(PC) ([1979] AC 411) at 35-36 (at 425 AC), where
Lord Wilberforce said:
“
The second defence is one of res judicata.
There has, of course, been no actual decision in litigation between
these parties
as to the issue involved in the present case, but the
appellants invoke this defence in its wider sense, according to which
a party
may be shut out from raising in a subsequent action an issue
which he could, and should, have raised in earlier proceedings.

The classic statement of this doctrine is contained in the judgment
of
Wigram VC
in
Henderson v Henderson
[1843] EngR 917
;
(1843) 3 Hare 100
,
[1843-60] All ER Rep 378
and its existence has
been reaffirmed by this Board in
Hoystead v
Taxation Comr
[1926] AC 155
,
[1925] All ER
Rep 56.
A recent application of it is to be found in the
decision of the Board in
Yat Tung Co v Dao
Heng Bank
[1975] AC 581.
It was, in the
judgment of the Board, there described in these words (at 590):
“. . . there is a wider sense
in which the doctrine may be
appealed to, so that it becomes an abuse of process to raise in
subsequent proceedings matters which
could and therefore should have
been litigated in earlier proceedings.  This reference to “abuse
of process” had
previously been made in
Greenhalgh
v Mallard
[1947] 2 All ER 255
at 257 per
Somervell LJ, and their Lordships endorse it.  This is the true
basis of the doctrine and it ought only to be applied
when the facts
are such as to amount to an abuse, otherwise there is a danger of a
party being shut out from bringing forward a
genuine subject of
litigation.’
[30] I respectfully agree.  The identification with
abuse of the process accords with the policy expressed in the maxim
nemo debet bis vexari pro una et eadem causa
which underlies the principle of
res
judicata
.”
[32]
More recently the Constitutional Court in
S v
Molaudzi
2015 (2) SACR 341
(CC)
considered the doctrine of
res judicata
and concluded that the Court had the power to relax the doctrine in
exceptional circumstances.  This is not dissimilar to
the stance
adopted in
Henderson supra
that a Court will not (except under special circumstances) allow the
same parties to open the same subject of litigation.
[33]
The facts of
Molaudzi
are relevant to a consideration of res judicata in the context of
this application.  There, the Applicant sought leave to
appeal
against his convictions and sentences imposed by the North West High
Court, Mafikeng, for
inter alia
robbery
and murder.  The appeal was largely grounded on the
inadmissibility of extra-curial statements.  An application
for
leave to appeal by Mr Molaudzi in 2013 to the Constitutional Court
did not succeed, on the basis that it was based on an attack
on the
factual findings made in the trial Court and did not raise a proper
constitutional issue for the Constitutional Court to
entertain.
[34]
Thereafter in 2014 two of Mr Molaudzi’s co-accused applied for
leave to appeal against their convictions and sentences,
but raised
constitutional arguments regarding the evidence admitted against
them.  In particular, they challenged the constitutional

validity of the admissibility of extra-curial statements of an
accused against a co-accused in a criminal trial.  The
Constitutional
Court considered the challenge to raise a meritorious
constitutional issue, granted leave to appeal and subsequently
over-turned
the convictions of
Molaudzi’s
two co-accused.  They were subsequently released from prison.
[35]
Thereafter Mr Molaudzi brought a further application for leave to
appeal in which he raised the same constitutional arguments
as his
co-accused.  The Constitutional Court acknowledged that Mr
Molaudzi’s second application raised issues that are
res
judicata
, despite different grounds of appeal
having been raised in the first application.  The Court found
that if it could not entertain
Mr Molaudzi’s second application
he would be denied his right to equality before the law
viz-a-vis
his co-accused.  Grave injustice would result from denying him
the same relief, simply because in his first application he
did not
have the benefit of legal representation, which resulted in his
failure to raise a meritorious constitutional issue.
The
interests of justice, the Court found, required it to entertain the
second application on its merits, despite the previous
unmeritorious
application, and relax the principle of
res
judicata.
It is to be noted that the
constitutional arguments made in the second application were not
previously before the Court.
The Court went on to state at
paragraph 45:
“
Where significant or manifest injustice would
result, should the order be allowed to stand, the doctrine ought to
be relaxed in
terms of sections 173 and 39(2) of the Constitution in
a manner which permits this court to go beyond the strictures of Rule
29
to revisit its past decisions.  This requires rare and
exceptional circumstances, where there is no alternative effective
remedy.  This accords with international approaches to res
judicata.  The present case demonstrates exceptional
circumstances
that cry out for flexibility on the part of this Court
in fashioning a remedy to protect the rights of an applicant in the
position
of Mr Molaudzi.”
[36]
The Court acknowledged generally
apropos
the doctrine of
res judicata
as follows at paragraph 16:
“
[16] The underlying rationale of the doctrine of
res judicata is to give effect to the finality of judgments.
Where a cause
of action has been litigated to finality between the
parties on a previous occasion, a subsequent attempt by one party to
proceed
against the other party on the same cause of action should
not be permitted.  It is an attempt to limit needless litigation

and ensure certainty on matters that have been decided by the
courts.”
[37]
The Court went on to state at paragraphs 37 and 38:
“
[37] The incremental and conservative ways that
exceptions have been developed to the res judicata doctrine speak to
the dangers
of eroding it.  The rule of law and legal certainty
will be compromised if the finality of a court order is in doubt and
can
be revisited in a substantive way.  The administration of
justice will also be adversely affected if parties are free to
continuously
approach courts on multiple occasions in the same
matter.  However, legitimacy and confidence in a legal system
demand that
an effective remedy be provided in situations where the
interests of justice cry out for one.  There can be no
legitimacy
in a legal system where final judgments, which would
result in substantial hardship or injustice, are allowed to stand
merely for
the sake of rigidly adhering to the principle of res
judicata.
[38] In this matter the interests of justice require
this court to balance the rule of law and legal certainty in the
finality of
criminal convictions, as well as the effect on the
administration of justice if parties are allowed to approach the
court on multiple
occasions on the same matter, against the necessity
to vindicate the constitutional rights of an unrepresented,
vulnerable party
in a case where similarly situated accused have been
granted relief.  As in this case, the circumstances must be
wholly exceptional
to justify a departure from the res judicata
doctrine.  The interests of justice are the general standard,
but the vital question
is whether there are truly exceptional
circumstances.”
[38]
At paragraph 42 the Court stated:
“
[42] [I]n truly exceptional cases, where a
mechanical application of res judicata would fail to give effect to
the fundamental rights
of an accused and would result in a grave
injustice, this court is required, even obliged, to relax the
doctrine to the extent
necessary, to provide an appropriate
remedy...”.
[39]
While Molaudzi concerned an application for leave to appeal in a
criminal matter, the principle that the doctrine of
res
judicata
can be relaxed in truly exceptional
cases where its application would fail to give effect to fundamental
rights, would, in my view,
apply equally to civil matters..
[40]
Mr Donen for the Applicants did not refer to any exceptional
circumstances which warranted the relaxation of the
res
judicata
doctrine in this matter.
Instead he contended that the present matter was distinguishable from
Molaudzi’s
case,
inter alia
because the
Applicants' cause of action has neither been raised nor litigated
between the parties, and res judicata accordingly
does not apply.
[41]
I am unable to agree.  The cause of action and factual basis
that gave rise to the rescission application was the default
judgment
of Blignault J on 15 April 2014.  The rescission application
sought to set aside that judgment.  The subsequent
three
applications for leave to appeal all the way to the Constitution
Court, likewise concerned that cause of action.  The
cause of
action in the application before me is based on the same facts as
these prior applications, and whilst the application
before me is
described as a constitutional review of the default judgment granted
by Justice Blignault, it similarly seeks to set
aside Blignault J’s
judgment.  The notice of motion, in doing so, seeks a
declaration that the credit agreement was
reinstated, and accordingly
Blignault J’s judgment has no real force.
[42]
I note also that the judgment of Rosenberg AJ dated 6 November 2014
in the rescission application, as aforementioned, indicates
that the
Applicant raised the fact that no notice had been given by the First
Respondent to the Applicants in terms of section
129(1) of the NCA
and in the result the First Respondent was precluded from approaching
the Court for the order it obtained.
In this application before
me the basis upon which the relief is sought, similarly, is that the
First Respondent was obliged to
first send a notice in terms of
section 129(1) of the NCA before approaching the Court to seek
judgment, and the failure so to
do resulted in the default judgment
of Blignault J being a nullity.  The fact that this argument
might not have been raised
in precisely the same manner as it is now
being raised before me, does not detract from the fact that in
essence the cause of action
before me, before Rosenberg AJ, the SCA
and the Constitutional Court, pertained to the setting aside of the
judgment of Blignault
J on the same facts.  The fact that
non-compliance with the NCA was not raised in the pleadings before
Rosenberg AJ and therefore
not adjudicated upon by him does not
detract from this.
[43]
Nor does the fact that the Applicant did not fully argue
non-compliance with section 129(1) and section 130(1) of the NCA,
or
the reinstatement of the credit agreement, exclude the doctrine of
res judicata.
For, as is specified in the Henderson principle referred to above,
parties to litigation are required to bring forward their
whole case
and a court will not, except under special circumstances, allow the
same parties to open the same subject of litigation
in respect of the
matter which might have been brought forward but was not, only
because they have, from negligence, inadvertence
or even accident,
omitted part of their case.
Res
judicata,
as aforementioned, applies to every
point which properly belongs to the subject of litigation and which
the parties, exercising
reasonable diligence, might have brought
forward at the time.
[44]
The evidence makes clear that the Applicant, an attorney, ably and
relentlessly pursued this matter, raised the non-compliance
with a
section 129(1) notice, was aware of it but failed for whatever reason
to formulate it in the pleadings and pursue it.
Even had he not
been aware of this aspect in the previous litigation, the Henderson
principle does not excuse him, requiring as
it does a litigant like
him to put forward every point which properly belongs to the subject
of litigation, exercising reasonable
diligence.  The Applicant
failed to do so.  The first
Nkata
judgment of Rogers J, which was established law almost seven months
prior to the application for rescission on 6 June 2014 before

Rosenberg AJ, as aforementioned, was not referred to.  The fact
that the first
Nkata
judgment was the subject of an appeal at the time does not detract
from the fact that it was established law and binding in this

Division.
[45]
The Applicants' contention that they did not appreciate the true
nature of their cause of action until after the Constitutional
Court
judgment in
Nkata,
on
19 November 2015, and consequently now have the right to have their
real dispute resolved by application of the law which they
presently
raise in their application, goes squarely against the principal of
finality of judgments referred to in
Molaudzi
supra.
There would be no end to
litigation if parties were, after the conclusion of their cases,
permitted to come back to court
on a reformulation of their cause of
action informed by a later appreciation of the true nature thereof,
as the Applicants now
seek to do.  There would be no finality to
judgments if parties could argue other points on the basis of
subsequent legal
findings by our Courts.  It is incumbent upon
parties to understand the true nature of their cause of action and
litigate
their whole case to finality.  The Applicants did not
do so and it is not open to them to traverse the same ground based on

a true appreciation of their cause of action derived from the
Constitutional Court ruling.
[46]
I note also that it is trite that generally law developed by our
Courts is not retrospective in effect.  Nor are statutes,
unless
specifically provided for. Even the declaration of invalidity of a
law by the Constitutional Court does not invalidate anything
done or
permitted in terms thereof before the coming into effect of the
declaration of invalidity, unless the Constitutional Court
in the
interests of justice and good governance orders otherwise.  See
Section 98(6) of the Constitution of the Republic of
South Africa Act
108 of 1996. In
S v Zuma and Others
[1995] ZACC 1
;
1995 (4) BCLR 401
(SA) the reason for this was stated as follows at
paragraph 43 at 423 A - B:
“
Paragraph (a) of section 98(6) is intended to
ensure that the invalidation of a statute existing at the date of
commencement of
the Constitution should not ordinarily have any
retrospective effect, so as to avoid the dislocation and
inconvenience of undoing
transactions, decisions or actions taken
under that statute.”
How
then can the legal principle which the Applicants contend the
Constitutional Court established in the Nkata judgment become

applicable to the Applicants’ case that was litigated to
finality prior to that date?  To make it applicable would undo

decisions and actions, dislocate and inconvenience contrary to
Zuma
supra.    What was referred to in argument as the “new
law”, after the Constitutional Court
Nkata
judgment cannot be used either to re -open the Applicants’ case
prior thereto, or to attack the judgments of Thring and Blignault

which predated the “new law”.  For, on the
Applicants’ version, it was the Constitutional Court’s

Nkata judgment of November 2015 that established the principle as to
how reinstatement operates if arrears are paid, and such principle
on
this version could not have been established when the judgments of
Justices Thring and Blignault were delivered in 2008 and
2014
respectively.  Were this not so, there would be no finality to
litigation, the flood gates would open and the court process
would be
gravely abused.  The contention by Mr Donen that this
application “is not a res judicata situation” as
it is
trumped by conduct contrary to the Constitution by Blignault J, which
must be declared invalid, cannot thus be accepted.
[47]
In the light of the above, I note that just as the Constitutional
Court in Molaudzi acknowledged that Molaudzi's second application

raised issues that were res judicata despite different grounds of
appeal having been raised in the first application, so too must
it be
acknowledged that the application before me raises issues that are
res judicata despite the contention that different grounds
were
raised in the former applications.  There are, however, no
exceptional circumstances approximating those in Molaudzi,
namely the
denial of a right to equality before the law, or no legal
representation and the resultant failure to raise a meritorious

issue.  Nor, in my view, are there any other exceptional
circumstances warranting a relaxation of the res judicata doctrine,

which must accordingly apply.
[48]
The following factors in addition, militate against the relaxation of
the doctrine of
res judicata
:
48.1 The property has already been sold in execution and
was subsequently transferred to the Third and Fourth Respondents.
These
Respondents, as innocent third parties, stand to suffer
significant prejudice should the Applicants be allowed to re-open
their
case.
48.2 The Applicants give no indication as to what effect
they could have used their rights had they received a section 129(1)
notice.
See
Absa Bank Limited v Peterson
2013(1) SA 481 (WCC).
48.3 On 10 August 2015 as aforementioned, the Applicant
signed a deed of settlement wherein they confirmed that the judgment
of
Blignault J against them stands and accepted liability to the
Plaintiff for payment of the amounts due and an order declaring the

property executable.  Their acquiescence is inconsistent with
their current intention to have the case re-opened and the judgment

set aside.  As was said in
Nkata v
Firstrand Bank Limited and Others
2014(2) SA
412 (WCC) at 421 A – C:
“
The principles of peremption apply not only to
appeals but also to the remedy of rescission (See Sparks v David
Polliack and Co
(Pty) Ltd 1963(2) SA 491 (T) at 496 D-F).  The
general principle is that ‘no person can be allowed to take up
two positions
inconsistent with one another, or as is commonly
expressed to blow hot and cold, to approbate and reprobate.’
In order
to show that a person has acquiesced in a judgment, the
Court must be satisfied upon the evidence ‘that he has done an
act
which is necessarily inconsistent with his continued intention to
have the case re-opened or to appeal’ (Hlatshwayo v Mare
&
Deas
1912 AD 242
at 259).
Here Nkata initially decided to challenge the default
judgment.  One of the points she raised in the first application
was
the alleged non-compliance with s 129(1).  Her conduct in
settling that case on the terms I have described is entirely
inconsistent
with the continued intention on her part to have the
case re-opened by way of rescission.”
For
all of the above reasons, I accept the First Respondent’s
defence of
res judicata
,
and the application cannot succeed.
[49]
In a supplementary note Mr Donen submitted in support of this
application, firstly, that it did not constitute a vexatious

proceeding and secondly, that the Applicants had not waived their
statutory and constitutional rights by failing to assert them

previously.  Given my finding above that the application cannot
succeed due to the applicability of the doctrine of
res
judicata,
it is not necessary for me to
consider these aspects.
[50]
In view of all of the above I grant the following order:
1.
The
application is dismissed with costs, such to include the costs of two
counsel.
____________________
Y
S MEER
Judge
of the High Court
[1]
This
is the effective date on which chapter 6 came into operation in terms
of Proclamation 22 published in Government Gazette 28824
on 11 May
2066.
[2]
At para 105
[3]
At para 108