It is not proper or capable for a party to institute subsequent but related proceedings to nullify an existing order of court.
The only remedies are a successful application to rescind the order or to set the order aside through a successful appeal.
The applicants in Whitehead v Trustees of the Insolvent Estate of Dennis Charles Riekert had bought a farm in 2007, but fell into arrears on the bond payments to ABSA. An order had been obtained by the bank granting summary judgment and authorising execution against the property in dispute.
The order was made by a competent court at the conclusion of fully defended proceedings.
The effect of the order was to determine the indebtedness of the mortgagee applicants in terms of their liability on a mortgage bond to ABSA. The order finally determined ABSA’s right to execute against the property.
After the order was given there was a failed application for leave to appeal against the order. No further steps were taken to challenge the order. In the circumstances the order was unequivocally a final order.
After the order was granted, consistent only with acquiescence in the effect of the order, several attempts were made by the applicants to reach an accommodation with ABSA.
They then appealed and sought to undo the order authorising execution of the property, by declaring the original sale (the applicants’ acquisition of the farm) null and void.
The court said that while it is possible to attack a judgment belatedly where in the circumstances the interests of justice require that, that intervention is fact-specific.
It is necessary to establish whether the aggrieved litigants have not by their conduct demonstrated an acquiescence in the orders granted against them.
Where, after judgment, a party unequivocally conveys an intention to be bound by the judgment, any right of challenge is abandoned.
The rule with regard to peremption is well settled – if the conduct of an unsuccessful litigant is such as to point clearly and necessarily to the conclusion that they do not intend to attack the judgment, then they are held to have acquiesced in it and lose the right to have it set aside. Peremption requires a party to make up its mind whether to accept a judgment or not (not to be confused with pre-emption).
The judgment is a useful reminder that an unsuccessful party to litigation should, if it intends to challenge the judgment, do so timeously in accordance with the rules of court and not embark upon any conduct which may constitute acquiescence in the judgment.