The doctrine of peremption requires a party which has lost a case to make up its mind.
It cannot equivocate and acquiesce in a judgment or arbitration award and later seek to appeal.
In South African law, if the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that they do not attend to attack the adverse judgment, they are held to have acquiesced in it. The conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. The onus of establishing that position is upon the party opposing the appeal.
In Busamed Health Care (Pty) Ltd v Du Plessis Van Der Nest SC NO 2020 JDR 1331 (GP) one of the unsuccessful applicants, a party to arbitration proceedings, sought to review and set aside the award.
The court held that on the facts it was incontrovertible that the applicant had by their own conduct acquiesced in the arbitration award obtained against it by partial participation in the award and the court declined to come to the assistance of a party who initially participated in the terms of the award by demonstrating an intention to abide by the original finding of the arbitration but suddenly changed its mind.
In Jiyana v Absa Bank Limited 2020 JDR 0650 (SCA) the parties had concluded a detailed settlement agreement providing for payment of an agreed outstanding amount and providing for the payment terms.
The crucial portion of the agreement provided that:
“Defendants (appellants) confirm that the judgment against them stands and (they) accept liability to the plaintiff jointly and severally for payment of …”
The court held that, by confirming the validity of the judgment and accepting their liability towards the plaintiff pursuant to the judgment, it was not open to the appellants thereafter to impugn it.
Not surprisingly the court said that there was no clearer conduct pointing to the abandonment of the right to attack the judgment than that particular clause of the settlement agreement. The appellants clearly resigned themselves to the consequences of the judgment against them and committed themselves to fulfilling its terms.
Parties to any award or judgment who do not timeously exercise their rights to appeal that award but rather conduct themselves in terms of the award or judgment, do so at their own risk of losing the right to appeal.