The principles of peremption (abandoning a right of appeal by conduct inconsistent with an intention to exercise that right) were restated in this Constitutional Court judgment and are worth remembering.
“Peremption is a waiver of one’s constitutional right to appeal in a way that leaves no shred of reasonable doubt about the losing party’s self-resignation to the unfavourable order that could otherwise be appealed against.”
The principle underlying the doctrine 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”.
The Constitutional Court said that principles of peremption also resonate in circumstances where, before a judgment, a litigant’s conduct points to the conclusion that they have no intention of participating in the particular proceedings and have resigned themselves to any decision that the court might make. “If our law, through the doctrine of peremption, expressly prohibits litigants from acquiescing in a court’s decision and then later challenging that same decision, it would fly in the face of the interests of justice for a party to be allowed to lawfully refuse to participate in litigation and then expect the opportunity to re-open the case when it suits them. It is simply not in the interests of justice to tolerate this manner of litigious vacillation.”
A litigant who has a judgment given against them and does not take prompt steps to appeal the judgment does so at their own risk as does a litigant who elects not to participate in the proceedings leading to that judgment.
South African Revenue Service v Commission for Conciliation Mediation and Arbitration 2016 ZACC 38
